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

Overall Structure of the course:

Fundamentals: questions
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?
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?

1) Utilitarianist:
a) Is this act a crime: step into shoes of person who is accused at time and moment of crimeèdid this person choose the path of lesser harm? focus on consequences; path of less harm; look forward cares about the past only to the extent it will impact the future

b) If so, should we punish: step into shoes of sentencing judgeèany purpose to punishing: punishment in itself is a harm, must be outweighed by a benefit (future goals)
i) 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
ii) Individual/specific deterrence: mean to deter future misconduct from D
(1) Incapacitation
(2) Intimidation: upon release, D’s punishment reminds him that if he returns to a life of crime, he will experience more pain.
iii) Reforms/Rehabilitation: treatment as opposed to jail meant reform D

c) How much? Punishment proportional if
i) the greater the profits from a crime, the greater the punishment
ii) the more aggravated crimes should have greater punishment to encourage minimization of crime
iii) punishment should never be excessive

2) Retributivist:
a) Is this act a crime: look at free will involved (look at context), if there was affirmative choice to do harmè that person is morally culpable; dual premises: humans possess free will + punishment is justified when it is deserved

b) If so, should we punish:
i) Positive retributivist: always punish even if no societal benefit (if nuclear holocaust tomorrow kill everyone of death row); punish because person is guilty, they deserve it (culpable)
(1) Assaultitive: deters private vengeance and send symbolic message of general deterrence; it is “morally right to hate criminals” right to hurt them back; treat criminals like “noxious insects to be ground under the heel of society” (Stephen)
(2) Protective: criminals have right to be punished, restoring moral equilibrium btw criminal and society; Locke violating social compact; obligation/duty to punishèpunish to restore equilibrium (Morris)
(3) Victim-oriented: reaffirms the value of value of victim and restores equilibrium between criminal and victim; room in the criminal law for forgiveness and mercy (Hampton)

ii) Negative retributivist: before punishèmust make sure actually guilty; morally wrong to punish an innocent person even if society would benefit

c) How much? Proportionality
i) Internal=moral culpability of wrongdoer vs. must be proportional when looking at this wrongdoer relative to all other wrongdoers; person v person; intentional v negligent (by mens rea)
ii) External=social harm caused by crime (crime X vs. crime Y);
(1) “eye for an eye” Kantian equality

3) Generally: Proportionality: How much?
a) Federal Sentencing Guidelines
b) Now moving toward discretion
c) Persuasive Authority: other jurisdictions, scholarly treatises
d) D’s burden to cast doubt: cast as many alternative theories

4) Constitutional Requirements of Proportionality
a) Generally:
i) 8th amendment: is a factor for capital and non capital offenses;
ii) Consider tests and views of justices;

b) Capital/Death Penalty Cases: Two-Pronged Coker Test for Excessive and Unconstitutional Punishment:
i) Whether the punishment makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering [U] OR
ii) Is grossly out of proportion to the severity of the crime [R] (1) Determination: compares to other sentences within jurisdiction and outside jurisdiction; trying to gauge public sentiment (prongs 2 and 3 of the Solem test)
iii) If punishment scheme fails either prongèUnconstitutional

c) Non Death Penalty Cases: Ewing-Kennedy Test: Gross Disproportionality + deference to power of state leg
i) Apply First prong of Solem, (gravity of the offense and the harshness of the penalty) and if it determines that the offense was “serious,” è any penalty short of death sentence is proportional.
ii) The other prongs of the test only come into play if the court determines that the offense at issue is petty and the sentence imposed is severe (grossly disproportionate).
(1) Considerations:
(a) Depends on how jurisdiction grades the crime and Δ’s rap sheet
(i) Ewing court evaluating “three strikes” rule,Δ stole golf clubs but court says case not about shopliftingè grand theft $1,200 + two previous “serious” crime convictions;(long rap sheet; 3 felonies-a.k.a. “serious” crimes; regardless that last felony is wobbler:$1,000; 25-years to life)
1. wobbler: can be a misdemeanor, can be felony depending on whether or not Δ has past history (priors); presumptive felonyèbut prosecutor has discretion to bump it down to a misdemeanor

Solem’s Three Factor Test of Proportionality

gravity of the offense and the harshness of the penalty; threshold factor must fail this factor to get to the rest
sentences imposed on other criminals in the same jurisdiction (what other crimes in this state received the same sentence as Δ did?)
the sentences imposed for commissions of the same crime in other jurisdictions


eria stated in the Code and, insofar as such criteria are not decisive, to further the general purposes stated in this Section.;

NY rejects:
The general rule that a penal statute is to be strictly construed does not apply to this chapter; but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the objects of the law

doesn’t explicitly accept or reject lenity

NY rejects lenity

Approaches to Statutory Interpretation: there is no hierarchyè depends on the judge; argue all

1. Plain Meaning: When the language is clear and unambiguous, courts just give statute its plain and definite meaning. Otherwise resort to intent.

2. Legislative Intent: The intent of leg controls the interpretation of the statute; (jurisdiction will give hints as to tools to use to decipher intent, i.e. MPC 1.02 3 )

3. 50-50 Rules of Statutory Interpretation
a. Where a statute is susceptible to two interpretations, one constitutional, the other unconstitutional, the court should adopt the constitutional one. Minimize the amount of times statute is found unconstitutional

4. Lenity
a. Criminal statutes must be strictly construed. Where all else is equal, adopt the interpretation that favors the Δ over the state; fallen out of favor; lenity ALWAYS as LAST resort: NY Penal Law § 5.00 does NOT adopt, MPCdoesnot explicitly accept or reject;

Sources for Statutory Interpretation
1. Modern usage/popular understanding of term, dictionary, law dictionary, prior precedent on general statute, placement and purpose of term in the statute, etymological origins of the term, leg history of statute, policy purposes, prior versions of statute/existing common law at time of enactment
2. Example:
a. U.S. v. Foster: statutory interpretation of the word “carry”
i. “Whoever, during and in relation to any crime of violence or drug trafficking crime…uses or carries a firearm, shall, …be sentenced to imprisonment for five years”
ii. Transport v. on physical person “packing heat”
iii. Majority: firearms within reach-not limited to carrying on person; supreme ct broad interpretation