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Criminal Law
St. Johns University School of Law
Chiu, Elaine M.


Criminal law spring 2012

Overall Structure of the course:

Fundamentals: questions: What are goals of criminal law? Why do we punish?

Elements of a crime: actus reus, mens rea, causation, and social harm

In practice: homicide and rape

General Defenses: when is conduct that leads to harm not criminal?

Is not lead to criminal liability

Attempt: when is conduct that does not lead to harm still criminal?

Accomplice: when is one liable for the criminal acts of another?

Fundamental Questions for Criminal Law

Why the criminal law? Why do we punish? What purposes does punishment serve?

Who should we punish? Who are the criminals? What is a crime? What is not a crime? What distinguishes blameworthy conduct from other non-blameworthy conduct?

How much should we punish?

Part I: Principles of Punishment

Why the criminal law? Why do we punish? What purposes does punishment serve?

A) Theories

1. Utilitarian: Since punishment is a painful thing, it should only be used when there will be a benefit. A utilitarian looks forward and asks what society will get out of the punishment.

a) 4 mechanisms in which punishment can reduce crime

· General deterrence- D is punished in order to convince the general community to forego criminal conduct in the future; object lesson to the rest of the community (sends a message to the public)

· Specific deterrence- meant to deter the specific individual from specific misconduct and to help him make better choices (sends a message to the individual)

· Incapacitation- takes away a person’s liberty and freedom because he can not harm society when incapacitated (not about sending a message)

· Rehabilitation: by rehabilitating the person- he will have the ability to make better choices. (not about sending a message)

b) Critique- would a utilitarian punish an innocent person to prevent more crime?

Hypo: There is a white person murdered by a black person. Should another innocent black man be arrested to calm down the angry white mob?

2. Retributivism: punishment is justified when it is deserved- when a wrongdoer freely chooses to violate society’s rules. It looks backwards to the moment of the crime to determine if the person exercised free will.

a) Negative retributivism –an innocent person should never be punished because guilt is a necessary condition for punishment

b) Positive retributivism- must punish every guilty person always

· Assaultive- deters private vengeance (Stephen)

· Protective- a criminal now has the upper-hand and therefore punishment restores criminal back to their proper place in society. Restores equilibrium between the criminal and society (Morris)

· Victim-oriented- the way to bring the victim back to its proper place in society is by punishing the criminal . Restores equilibrium between the victim and society.(Hampton)

B) Proportionality : How much should we punish?

1. Punishment theories

a) Bentham’s rules on proportional punishment (utilitarian)

· Punishment should be greater than the profits from the crime. (If there is too little punishment, crime will remain profitable and punishment will be ineffective).

· The more aggravated versions of a crime should have a greater punishment to encourage the criminal to commit the lowest version of the crime.

· Punishment should never be excessive- There should be no more punishment than is necessary to satisfy utilitarian crime prevention goals.

b) Retributive proportionality -“eye for an eye” approach

· Internal- moral culpability of the wrongdoer.

Must be proportional when looking at this wrongdoer relative to all other wrongdoers

· External- social harm caused by the crime

Must be proportional when looking at this act relative to all other crimes

2. Eight Amendment Proportionality Doctrine

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted”. (8th amendment)

· In 1910, the Supreme Court ruled that an implicit requirement of the 8th amendment is that “punishment for a crime must be graduated and proportional to the offense”. The 8th amendment imposes an upper-limit on the sentencing of non-death penalty crimes.

· However, it is still controversial and two Supreme Court justices believe the 8th amendment does not contain a proportionality requirement.

Non-Death Penalty Punishments: Three Prong Test from Solem

1. Threshold Factor: Consider the gravity of the offense and the harshness of the penalty.

· May differ on how “offense” is defined (for a 3 strike law- may include all offenses, or only the specific one being punished)

· May differ on how the “penalty” is defined (the “real” prison time, parole or probation etc.)

· If the gravity of the offense and the harshness of the penalty are matched, then the other two factors do not have to be considered and the punishment is not disproportionate.

If the sentence does not pass the threshold, consider:

a. The sentence imposed on other criminals in the same jurisdiction (what other crimes received the same sentence?)

b. The sentences imposed for commission of the same crime in other jurisdictions

one that does not touch on fundamental constitutional rights-as unconstitutionally vague.

Requirements for a statute to avoid being found void for vagueness:

a) Criminal statutes should be understandable to reasonable law abiding persons. (fair notice)

§ “Reasonable degree of certainty” – the public needs enough notice to have a sense of what is prohibited and understand when they are getting close to a line.

§ The due process clause is not violated unless a law-abiding person would still have to guess as to the meaning of a statute after she or her attorney conducts research into the meaning of the law

b) Criminal statutes should be crafted so as not to delegate wholesale authority from legislature to police, courts or juries (arbitrary discretion)

§ In Morales, the loitering statute did not have enough specificity. It defined loitering as “staying in one place for no apparent reason.” The ct says that it is unconstitutional because it can lead to the police having too much power to make arbitrary and discriminatory enforcement.

C) Approaches to statutory interpretation

1) Plain meaning

When language is clear and unambiguous, courts will give the statute its plain and definite meaning. Otherwise, look to legislative intent.

2) Legislative intent (Foster)

· Use the intent of the legislature to interpret the statute.

· Consider the purpose of the statute and what the legislature wanted to achieve.

3) Prior Precedent on the Meaning of the Terms

· Case Precedent

· Earlier versions of the statute

4) Placement and purpose of the term in the statute

· Assuming the legislature makes careful word choices, look elsewhere in the statute and consider the other words used in the statute.

5) Definitions of the word

· Black’s law dictionary (law meaning)

· Webster’s dictionary (ordinary meaning)

· Modern usage/popular understanding of the term

· Origins of the words may help decipher the meaning

· Common law at the time the statute was written (Keeler)

6) Lenity (depending on jurisdiction)