Criminal Law Outline
A. Theoretical Underpinnings
– A crime is anything that any state or federal legislature says is a crime.
– Murder – the unlawful killing, with malice aforethought, of another human being.
– What makes for a Good Criminal Law?
a) People must know:
(i) of its existence, and
(ii) of its relevance;
b) Must know factual circumstances that make it applicable;
c) Must be able to comply with it; and
d) Must be willing to do so.
– Felonies vs. misdemeanors:
1) Felony – a serious crime that is punishable by at least one year in a state prison.
2) Misdemeanor – a lesser crime for which the maximum penalty is either
a) incarceration for less than a year, typically in a city or county jail rather than in a state prison; or
b) a fine or
3) Violation – Model Penal Code §1.04(5) defines a violation as an offense for which “no other sentence than a fine… or other civil penalty” is authorized, and saying that a violation “does not constitute a crime[.]”
– Constitutional Limits:
1) Ex post facto legislation (Article 1, §§ 9 and 10) – prohibits retroactive lawmaking by legislatures.
2) Cruel and Unusual punishment (Eighth Amendment) – punishment should be proportional to the crime, not excessive.
3) Due Process of Law (Fifth and Fourteenth Amendments) – prohibits retroactive lawmaking by judges.
– Getting to a verdict: must prove
1) Preponderance of the evidence (for most civil matters)
2) Clear and convincing evidence (special standard in juvenile, probate, child custody, and civil fraud cases).
3) Beyond a reasonable doubt (long-standing criminal standard).
– Reasonable doubt:
à The reasonable doubt standard differs in every court. However, the main objective is that the jury must be convinced enough to convict the defendant.
à Judge Blackstone’s view: Let 10 guilty men go free rather than convict a single innocent.
à Justice Harlan: “We do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty.”
B. Principles of Punishment
– We “punish” a criminal à in the case of a crime we attempt to impose a “societal condemnation and stigma,” typically in the form of a prison sentence.
– Utilitarian – forward-looking (what are the ramifications of a particular punishment?); consequentialist (cost/benefit); crime prevention; main goals:
1) General deterrence – prevent others from committing the same or similar crimes.
2) Specific det
4) Punishment should vary for every part and type of offense to deter all.
5) No greater than needed to induce compliance.
1) Equality of evil done to evil imposed.
2) Reflective – evil you do is done to you.
3) Public retaliation – proper punishment is based on lex talionis (punishment resembles the offense committed/eye for an eye).
4) Commit murder – must be executed.
– Retributivists are especially likely to believe in the principle of proportionality since retributivists believe that the main purpose of the criminal law is to require that criminals pay their debt to society by undergoing punishment, they believe that more serious crimes deserve more serious punishment.
– Utilitarians, by contrast, are likely to be less wedded to the proportionality principle since utilitarians focus on deterrence, they advocate punishing a given crime by the lease amount that will suffice for general and specific deterrence, and this amount may not correspond to the moral blameworthiness of the particular crime.