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Criminal Law
St. Johns University School of Law
Levine, Kate

Criminal Law Levine Spring 2017
Structure of System
All specific crimes are made up of the general part
What makes a criminal law?
Actus Rea (Act) + Mens Rea (mental state)= culpability principle
Theories of Punishment
Kant, Moore
Kant: positive retributivist > guilty must be punished (eye for an eye)
Punishment is justified b/c people “deserve it”
Guilt is necessaryà negative retributivism
Guilt is sufficientà positive retributivism
Michael Moore: Positive retributivist
Punished as much as you deserve
Don’t consider what the victim wants b/c it’s about society
See this today, ex. Boston bombers, didn’t consider that some victims didn’t want the death penalty
Backward looking
Desert, blame-worthiness, moral culpability
Kant—most forceful strain, guilty must be punished, closest thing to an eye for an eye
It’s about benefit to society, so a means to an endà his biggest problem with utilitarianism
People who commit murder must die
A society that won’t kill a murderer makes them complicit in murder (the strongest theoretical version of retributivism)
Could require punishments that on net do much more harm than good
Can shade into revenge
Assumes a level playing field
Utilitarian: punishment is justified b/c of its social usefulness
Utilitarian justificationà threaten punishment to stop someone from committing an act
Economic approach to crime control:
Potential offenders calculate costs and benefits of committing crime
Specific deterrence: stop offender from committing future acts
General deterrence: punish one offender to deter other from committing similar act
Definition: punishment should be about reforming offender and readying them for re-integration into society
for society: treating offenders makes “us” safer
for offender: rehabilitate so that offender can lead “full” and “flourishing” life
popular until 1970s, then became taboo
paternalistic aspect (help you become a better person)
subjective and discretionary, bias falls heavily on low-income & diversity
some people may not be able to be re-habilitated
programs may set people up for failure
Definition: if someone is in prison, they cannot commit crime
Strong version: lock more people up, crime goes down
Prison is more “efficient” than “violent crime”
“a thug in prison can’t shoot your sister”
selective incapacitation: target those most likely to commit crime at higher rates
Hard to figure out what the limits are
Spending more time in prison may make someone more likely to commit a crime once they’re released
Skewed formulaà drug imprisonments
Cons of Utilitarianism:
Could require the punishment of an innocent person, if the net benefit to society would be greater
Could also result in very severe sanctions for minor infractions
Assumes a rational actor
Justifications for Punishment:
Jeremy Bentham (deterrence)
Considers punishment an evil, but if it stops a greater evil its worth it
Punishment is justified b/c of its social usefulness
To cause enough pain so that its more than pleasure from the act
Forward looking
Prevent persons from committing crime
Cost vs. benefits
All men calculateà criminal activity is a rational choice
Statutory Solutions
Model Penal Code §1.02
Purposes; principles of Construction
(1) the general purposes of the provisions governing the definition of offenses are:
(a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests
(b) to subject to public control persons whose conduct indicates that they are disposed to commit crimes;
(c) to safeguard conduct that is without fault from condemnation as criminal
New York Penal Law §1.05(6)
The general purposes of [sentencing] are… to insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the rehabilitation of those convicted, the promotion of their successful and productive reentry and reintegration into society, and their confinement when required in the interests of public protection
In both:
How much the theories of punishment influence them
Everything’s in there, things are mixedà can justify different crimes by using different theories
NY has adopted the MPC almost in full
Testing Out the Statutory Schemes:
(1) The ∆, a 17 years old, is a high school dropout, is homeless, and has grown up in nine different foster homes. He shoplifts a candy bar from a store with 75cents. The store- as well as neighboring stores- have lost thousands of dollars to shop

legislature intended the statute to mean
why didn’t the court convict?
Rule of lenityà need to make fair warning
U.S. v. Dauray (2000)
Federal statute punishes the possession of “3 or more books, magazines, periodicals, films, video tapes, or other matter” that have passed in interstate  or foreign commerce and “which contain any visual depiction [of] a minor engaged in sexually explicit conduct.”
Issue- these were just images and
Court’s Methods of Interpretation:
(1) Plain meaning: What’s “other matter” and “contain”
court says “picture containing an image” don’t determine plain meaning
(2) Canons of Construction: tools to determine what meaning is
meaning od doubtful terms/phrases may be determined by reference
(3) Statutory Structure:
3 or more meant images, and maybe paper=container
(4) Statutory Amendments:
here, would be retroactive, change in statute in 1999
court says Amendment shows it was always legislative intent
(5) Avoiding Absurdity: a statute should be interpreted in a way that avoids absurd results
here, statute would allow ∆ to have a million images, as long as not contained
(6) Legislative History: Scalia hated this b/c allows for subjectivityà lots of legislative history, cherry picking
encourages lazy lawmaking, legislature might do their job b/c the court would have to go clean it up
This case makes the legislature write a better statute, refuses to interpret the statute b/c of how ambiguous it is
The Rule Of Lenity: limitation on Crim law’s reach [NOTICE] Air in favor of defense because the statute can’t be read to support either side
Only applies when it’s the last resort, when all other tools of interpretation fail to clarify the statute’s meaning
The MPC gives lenity no special consideration at all
Ambiguityà must be a grievous ambiguity or uncertainty
Degrees: Today: the weaker versions are more common