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Criminal Law
South Texas College of Law Houston
Moses, Ray E.

Criminal Law Outline
Fall 2009
Prof. Moses

I. Criminal Law Overview
1.involves public law b/c it imposes a social harm and is a breach and violation of the public rights and duties to the community
i. Punishment
ii. Civil Law Difference
1. Societal condemnation and stigma that accompanies a criminal conviction
a. some would rather pay a 20k civil judgment as opposed to being condemned by the community
iii. Conviction
1. Expression of communities moral outrage
a. Communities have said you did a moral wrong doing and will be punished for it
iv. Crime
1. An act or omission and its accompanying state of mind if duly shown to have taken place will incur a formal and solemn pronouncement of the moral condemnation of the community
3.Classification of Crimes
i. Felony
1. felony homicide
a. manslaughter
b. murder
c. Suicide at English CL
2. arson
3. mayhem
4. rape – general intent
5. robbery
6. larceny – specific intent
7. burglary – specific intent
8. prison escape
9. sometimes sodomy
ii. Punishment
1. death
2. imprisonment in state prison
iii. Misdemeanor
1. all others
iv. Punishment
1. monetary fine
2. incarceration in local jail
3. or both

II. Origins
i. America
1. English law and combination of judge made law
2. primary source of criminal law b/c statutes were derived from common law
ii. Legislature
1. created penal statutes or codes to supplement but eventually replace common law
2. pre-eminent lawmaking body of criminal law
iii. Judicial
1. Interpret the law
2. In a statute that contains a common law term it retains its common law meaning unless there is a statutory definition that replaces it
3. Today turn to common law to get further explanation of a penal code when there isn’t enough definition or information to interpret it
a. When ambiguity in the statute look to common law
i. Origin
1. Created by the ALI in 1952 and serves as a model to other states and caused jurisdictions to revise their penal code
a. similar to a RS of torts
b. they hoped that states would adopt in whole or part of it and many states did
ii. Interpret
1. Courts turn to it for guidance in interpreting non-code criminal statutes

III.Principles of Criminal Punishment
i. Punishment
1. only once for the same criminal offense
2. not punished retroactively
3. not subjected to cruel and unusual punishment
4. when the criminal suffers a consequence that is ordinarily considered to be unpleasant
5. Civil Punishment
a. Confinement for a sexual offender
i. Doesn’t take away liberties b/c it is a civil statute and not in the penal code so they aren’t being punished twice for the same wrong
2.Theories of Punishment
i. Retribution
1. Definition
a. People should get what they deserve despite the punishment might not reduce crime
2. Why punish?
a. Justified…
i. On the basis of a voluntary commission of a crime
b. humans possess free will to choose to do right or wrong, when they choose to do wrong they should be punished
c. when they choose to do the crime then they choose to be punished and punishment is a payment for their debt of the crime
d. Protective Retribution
i. society wants to secure a moral balance in society
ii. We burden ourselves for not committing a crime we do this b/c giving it up brings us benefits…others won’t follow their basic instincts and harm us
1. Criminal doesn’t accept the burden of obedience and gets benefits but doesn’t reciprocate
a. Punishment is a morally just act b/c it brings him back into moral equilibrium with others. Pays back what he has taken from others
e. Victim Vindication
i. By committing the act sends message to victim and society that the criminals rights are more valuable
ii. Punishment corrects this making the victim’s worth equal to his
1. Masters the wrongdoer the way he mastered the victim
2. Proportional punishment
3. How Punish?
a. proportional to the crime they committed and to the wrongdoer’s personal moral blameworthiness for causing the harm
i. to the extent of their wrongdoing
b. Harm caused and moral blameworthiness for causing the harm
c. LOOKS back at what the criminal person has done
d. NEVER knowingly punish an innocent person
e. Assaultive Retribution
i. View that it is morally right to hate criminals and b/c they hurt society, society can hurt him back
ii. Disguised form of utilitarianism
1. Defends punishment in order to deter private revenge
ii. Utilitarianism
1. General Beliefs
a. All forms of punishment is bad and crime too
b. laws should be used to exclude all painful or unpleasant events
2. Why Punish?
a. Punishment Justifiable when….
i. Society should punish criminal if imposition of the punishment will reduce future crime of a greater degree than they are imposing on the criminal today
b. People are rational calculators
i. people like pleasure not pain and will rationally decide if they commit the act or not
1. balance the expected benefits of the conduct against the risks of detection, conviction and severity of the punishment
3. How Punish?
a. General deterrence
i. using the punishment for the current criminal to show the rest of society that they shouldn’t commit the criminal act
1. = a net reduction in crime
b. Specific Deterrence
i. to deter the future criminal act by…
ii. Incapacitation
1. Jail
iii. Intimidation
1. by punishing current criminal it will keep him from committing a crime in the future
a. will be fearful of future punishment
c. Rehabilitation
i. use criminal conviction to take person who committed the crime and try to change them
ii. use correctional system to reform the criminal rather than instill the fear of future punishment
d. LOOKS forward, future
iii. Denunciation- Expressive Theory
1. General
a. Combines u

forcement in an arbitrary or discriminatory manner
3. EX: vagrant and gang street activity, loitering statutes…
a. Gave police total discretion to determine who a vagrant was
5.Rule of Lenity (strict construction of statutes)
i. Statute is vague and has conflicting reasonable interpretations it should be interpreted in manner favorable to the criminal ∆.
ii. Policy
1. prevents the court from inadvertently enlarging the scope of a criminal statute through its interpretive powers
iii. MPC doesn’t recognize this
1. Statutes construction
a. Be construed according to their fair import and that ambiguous statutes be resolved in a manner that furthers the general purpose of the code and the special purposes of the particular provision involved

V. Proportionality
i. Tied to sentencing
1. punishment proportionate to crime committed
2. utilitarian and retributivists
ii. MPC purpose of Code
1. to safeguard offenders against excessive, disproportionate or arbitrary punishment
iii. constitution
1. 8th amendment prohibits grossly disproportional punishment
iv. How much or what punishment is excessive or disproportionate to a particular crime?
1. Utilitarian
a. General
i. Agree with proportionality, not too little, not too much
1. Too little
a. Conduct will be profitable and threat of punishment is ineffective
2. proportional
a. person will not want to do the greater harm b/c of greater punishment
3. Too much
a. If more pain is inflicted to satisfy the goal
ii. Repeat Offenders
1. justify enhanced punishment
b. General Deterrence
i. measured by predicting the overall mischief that is likely to result from commission of the offense in the futre and by other offenders
1. punishment may differ over time and in diff jurisdictions
ii. Degree to which conduct can be deterred
1. EX: drunk driving difficult to deter b/c may not create current harm but creates future problem if the conduct results in loss of life or injury
2. Impose penalties greater that would be set for equally dangerous but more easily deterred behavior
c. Specific Deterrence
i. only proportional to the extent that it’s necessary to prevent the individual offender from committing future criminal acts more painful to society than the punishment that will be inflicted on the wrongdoer
for a criminal that is more dangerous