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Criminal Law
St. Johns University School of Law
Simons, Michael A.

Michael A. Simons
Criminal Law
Spring 2013
       I.            Introduction
A.    Elements of a Crime
1.      Act             These two make up Actus Reus
2.      Harm
3.      Intent – Mens Rea
4.      Causation
B.     Defenses
All elements of crime are satisfied but due to an excuse or justification, actor is not guilty
1.      Excuses – Admit that the deed may be wrong, but excuse the actor because conditions suggest that the actor is not responsible for his deed – The Δ is exculpated only because his condition, delusion, or no free well, removes responsibility for the act
a)      Insanity
b)      Duress
2.      Justifications – The harm is under special justifying circumstances where it is outweighed by the need to avoid an ever greater harm or to further a greater societal interest – Tolerated, even encouraged, by society – Ex; fire rages and would burn a town, but you burn someone’s corn field instead
a)      Self-defense
b)      Necessity
    II.            Principles of Punishment
A.    Utilitarian
1.      Forward looking, consequentialist (always making world better through consequences; punishment), crime prevention
2.      The good of the many
3.      Punishment itself is an evil; utilitarians want the minimum punishment that will get the job done
4.      Why punish?
a)      General Deterrence: deter other people who would commit these crimes (greater good)
b)      Specific Deterrence: deter that person from committing other crimes
c)      Incapacitation: can’t commit crimes while incarcerated and in prison (repeat violent offenders)
d)     Rehabilitation: We want to teach the person to be better (a lesson), or cure them (addicts)
5.      Goals –  to protect society
B.     Retributivism
1.      Backward –looking: Just deserts; people get what they deserve; non consequentiality – what the act accomplishes is irrelevant because it’s always wrong
2.      Looks at harm caused (injury that was caused) and culpability of Δ (choice made by the Δ)
a)      Ex; You will argue both of these in a retributive argument – So in Dudley case, there was obvious harm, no argument there, but on culpability, π will argue that they CHOSE to commit murder, Δ will argue, no there was no choice, it was a life or death decision
3.      Does not care what consequences of punishment will be
4.      Positive Retributivism – Just desert REQUIRES punishment (must punish even if won’t do anything beneficial)
5.      Negative Retributivism – Just desert ALLOWS punishment (can’t punish if they don’t deserve but are allowed to if they do)
6.      Goals – To punish Δ
7.      You can use harm and culpability to make a Utilitarian argument as well – For example, the more serious the harm, the more it is worth it for society to use resources to prevent it (more willing to spend money to deter).  The more someone premeditates a crime, the consequences must be made visible to all to deter this conduct so people won’t choose to do it
a)      Ex; Is double parking deterable? Yes, but the harm is not great, so under utilitarian argument, we won’t spend many resources to stop it
b)     The utilitarian does not want to punish unnecessarily – Only if a certain positive outcome will result
1.         Common Law – This has been almost entirely replaced by legislation
a)      Common law Rule is still the baseline – Statutory law follows that foundation
2.         Legislation – Codified the Common law (Model Penal Code) – This was an attempt to organize the criminal law; A-Z a set of criminal rules, similar to restatements, and a model for adoption
3.         NY Penal Law – Follows the organization of the Model Penal Code with some Difference
1.      Common Law
a)      Felonies – Punishment was death
b)     Misdemeanor – Something other than death; today, max sentence is a year or less
c)      Infraction
2.      Model Penal Code
a)      Felony: 1st, 2nd, 3rd degree
b)     Misdemeanor: Misdemeanor, Petty Misdemeanor
c)      Violation
3.      NY Penal Law
a)      Felony: A, B, C, D, E Felony
b)     Misdemeanor: A and B Petty Misdemeanor
c)      Violation
1.      Sentencing Systems
a)      Indeterminate: Wide judicial discretion, parole board makes ultimate decision on length
b)     Indeterminate (NY): Judge assigns maximum sentence, defendant is eligible for parole after 1/3 of the sentence.
c)      Determinate: Federal System.  No parole. Judge has little discretion.  Elements of crims have point values that make up the sentence
2.      Expressive Theory of Punishment
a)      Punishment is justified as a means of expressing society’s condemnation + values
b)     Pays attention to the message that is sent – Educates individuals – Utilitarian
c)      Victim vindication – Expresses society’s outrage, prevents private vengeance – Utilitarian
d)     Stigmatizes offender – Retributive
e)      Says that wrongdoer deserves punishment – Retributive
f)       Judge Karlin’s Sentencing Rationales – People v. Du
                                                                    i.            Protect Society (General Utilitraianism)
                                                                  ii.            Punish the Δ (General Retribution)
                                                                iii.            To encourage the Δ to lead a law abiding-life (Specific Deterrence)
                                                                iv.            To deter others (General Deterrence)
                                                                  v.            To isolate the Δ so she can’t commit other crimes (Inapacitation)
                                                                vi.            Restitution (Neither theory, an adoption of civil law values)
                                                              vii.            Uniformity in Sentencing (Retributive – Just Deserts – 2 people with same crime deserve same sentence; Utilitarian – General Deterrence – The more consistent the message you are sending, the better the deterrence)
3.      Shaming as Punishment
a)      Usually done in non violent situations
b)     Point is that you can sometimes accomplish a goal in alternate ways without flooding the prisons unnecessarily
c)      All a part of “restorative justice”
1.      To consider how bad a crime is, we consider
a)      Harm
b)     Culpability
c)      Dangerousness
2.      8TH Amendment – “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted”
a)      Coker v. Georgia – Δ – Coker
Charge – Rape, Escape from prison, armed robbery, kidnapping, motor vehicle theft
Elements of Rape – Carnal knowledge of a female, forcibly and against her will penetrating of her sex organ with yours (in Georgia) – Sex + force + against will
Defense pled – Insanity
Verdict – Guilty
The issue is whether or not the death penalty should be allowed for rapists (recidivist also)
b)      Supreme Court said that a punishment is cruel and unusual if:
                                                                    i.            (Utilitarian) It “makes no measurable contribution to acceptable goals of punishment and hence is nothing more than purposeless and needless imposition of pain and suffering” OR
                                                                  ii.            (Retributive) It is grossly out of proportion to the severity of the crime
c)      Coker case is still good law – Death Penalty is not appropriate for Rape
                                                                    i.            Argument For: To kill him is more specific deterrence since life in prison didn’t deter him.  More general deterrence when there is a death penalty.  Incapacitation in prison was not enough to stop him since he escaped.  He was already in prison for life and had no disincentive to not rape since death is not a punishment.  His culpability is through the roof since he made a deliberate and conscious choice to rape her
                                                                  ii.            Argument Against: (this argument won) The harm inflicted on victim was less than murder.

auchery + corruption – However, there was no statute that made this a crime – Judges interpreted as common law crime
a)      PA SCOTUS held – Δ can be prosecuted for committing a common law crime even if it hasn’t been specifically enacted into legislation – Affirmed
b)      All jurisdictions today have abolished common law offenses – Including PA (The dissent in the case has prevailed over time)
c)      Problem with prosecuting common law offenses
                                                                    i.            No Notice to Δ – Unfair.  Utilitarian.  If no one knows what the law is it won’t accomplish deterrence sufficiently.  Retributive.  If no one knows what the law is how can they be making a choice to break it
                                                                  ii.            Legislatures are in better position to make laws because they are elected. Courts interpret
4.      Keeler v. Superior Court – Charged with murder – The unlawful killing of a human being with malice aforethought – Is the unborn child a human being?  All elements there except not sure if a 5 month fetus is considered a “human”
a)      California statute was codification of common law, which in 1850 said killing a fetus wasn’t murder.  Therefore, killing a fetus isn’t murder since wasn’t considered a human when the law was passed – legislative intent
b)      Could argue “living constitution” – Dissent says that back then, they had no way of knowing the child would survive – Viability of the child has increased and the law does not reflect that – There is proper notice since the Δ can’t claim that he did not know the child would die, that was his intent.
c)      Judicial branch did not want to make laws for legislature (ironically they show restraint when it can save a baby’s life, but peeping toms, and debauchery they don’t care – idiots)
5.      People v. Eulo – Traditional common law definition of death was “complete cessation of circulation or respiration” – Argument is that he shot him in the head, but he was kept alive on respirators and equipment – So he didn’t kill him technically, the doctors did
a)      Medical community changed its definition of death and added the “OR lack of brain function”
b)      In this case, the judiciary did not care and interpreted the statute more broadly – Policy Consideration (the minds of liberals – idiots ok with baby’s dead, but not here)
6.      In Re Banks – Charged with violating peeping tom statute – Argues 2 things – 1) Constitutionally overbroad, 2) Constitutionally vague
a)      Penal statutes are generally construed as favorably to Δ as possible
b)      Here was ruled that it was not overbroad (definitely was)
a)      Crimes must be defined by the legislature
b)      Legislature cannot create retroactive crimes
c)      Judges can/must interpret legislative definition
d)     Judges cannot change judicial interpretations retroactively
e)      Overly broad – Unconstitutional
f)       Overly vague – Unconstitutional
F.      RULE OF LENITY – Criminal statutes should be “strictly construed” – Meaning that only when a penal statute is ambiguous with more than 1 interpretation possible, it shall be strictly construed in the favor of the Δ – Basically, tie goes to Δ, ONLY when ambiguous – If not ambiguous, read as construed