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

St. Johns University School of Law
Professor Simons
I.             INTRODUCTION
a.     Nature, Sources, and Limits of the Criminal Law
                                                                                                                                                                                              i.      What is Crime?
1.       Crime is conduct which if duly shown to have taken place will incur a formal and solemn pronouncement of the moral condemnation of the community
2.       Parts of a crime:
a.      Act        
b.      Harm
c.      Intent (Mens Rea)
d.      Causation
                                                             ii.      The Legislature’s Role
1.       Legislators not judges exercise primary responsibility for defining criminal conduct
2.       Legislature deals with crimes in advance of their commission by way of general directions…four conditions must be satisfied for such directions to work:
a.      primary addressee who is supposed to conform his conduct to the direction must know (a) of its existence and (b) of its content in relevant respects
b.      must know about the circumstances of fact which make the abstract terms of the direction applicable in the particular instance
c.      must be able to comply with it
d.      must be willing to do so
                                                            iii.      Jury Trial
1.       Granted to criminal Ds in order to prevent oppression by the government
a.      Not available for petty offenses (less than 6 months jail time)
                                                           iv.      Burden of Proof
1.       Due process clause requires the prosecutor to persuade the fact finder beyond a reasonable doubt of every fact necessary to constitute the crime charged
2.       A society that values the freedom and good name of every individual should not condemn a man where there is a reasonable doubt about his guilt
a.     What is a Defense
                                          i.    Any set of identifiable conditions or circumstances which may prevent a conviction for an offense
b.     Five General Categories of Defenses
                                                               i.      Failure of Proof Defenses
1.       All elements cannot be proven (like mistake in incest)
                                                             ii.      Offense Modifications
1.       All elements are satisfied but the actor has not caused the harm or evil sought to be prevented by the statute (like parent paying ransom to kidnapper)
                                                            iii.      Justification
1.       Harm caused by the legally justifiable behavior is a legally recognized harm which should be avoided when possible, but is outweighed by the need to avoid a greater harm or to further a greater societal need (like burning field to prevent spread of fire to town)
a.      Negates the social harm of the offense
                                                           iv.      Excuse
1.       Admit that the deed may be wrong, but excuse the actor b/c conditions suggest that the actor is not responsible for his deed…has not acted through a meaningful exercise of free will and not an appropriate subject for criminal liability (like insanity)
a.      Negates the blameworthiness of the actor for causing the harm
                                                            v.      Nonexculpatory Public Policy Defenses
1.       Public interest/policy based bars to prosecution …the D’s conduct is harmful, blameworthy and creates no societal benefit – the societal benefit underlying the defense arises not from his conduct but from foregoing his conviction (like SOL and diplomatic immunity)
c.     Other
                                                               i.      An offense punishable by death or imprisonment in a state prison is a felony
                                                             ii.      An offense for which the max punishment is a fine, incarceration in a local jail or both is a misdemeanor
                                                            iii.      Crimes have 2 components:
1.       the actus reus – physical or external portion of the crime
a.      consists of (1) a voluntary act; (2) that causes; (3) social harm
2.       the mens rea – mental or internal feature of the crime
a.     Dominant Approaches to Punishment
                                                               i.      Retributive – punishment is justified b/c people deserve it (backward looking in that justification is found in prior wrongdoing)
                                                             ii.      Utilitarian – punishment is justified b/c of the useful purpose that it serves (forward looking in that justification is based on supposed benefits that will accrue from its imposition)
b.      Utilitarian Justifications
   i.Jeremy Bentham – since punishment involves pain – it is justified when it produces enough good to outweigh the harm
1.Punishment should not be inflicted where it is groundless, inefficacious, unprofitable or needless
It should serve to prevent crime and make society better
 ii.Kent Greenawalt – beneficial consequences of punishment:
1.general deterrence – knowledge that punishment follows crime deters crime
2.individual deterrence – creates fear in the offender in repeating his act
3.incapacitation/risk management – puts criminals out of circulation, on parole, etc
4.reform – attempting to transform criminal into a happier more useful person
c.     Retributive Justifications
   i.Michael Moore – distinctive aspect of retributivism is that the moral desert of an offender is a sufficient reason to punish (deterrence and other goals are no part of the justification)
 ii.Immanuel Kant – even if a civil society resolved to dissolve itself with the consent of all members, every last murderer in prison should be executed first (so that everyone realizes the desert of his deeds)
iii.Assaultive Retribution – it is highly desirable that criminals should be hated and punishments inflicted should give expression to that hatred
iv.Protective Retribution – rules establish a mutuality of benefit and burden and benefits are conditioned upon assumption of the burdens
1.if a person acts criminally, they have acquired an unfair advantage and should be punished
v.Jeffrie Murphy & Jean Hampton – retributive punishment is defeat of the wrongdoer at the hands of the V that restores/equalizes the relative value of each in relation to each other
1.the retributive motive for inflicting suffering is to annul or counter the appearance of the wrongdoer’s superiority and thus affirm the Vs real value (the score is even)
d.     Who Should be Punished?
                                                               i.      The Queen v Dudley and Stephens
1.       Utilitarianism – forward looking – consequences of punishment are benefits for the future, i.e. to prevent crime
a.      Act Utilitarianism – In any situation, do the act that will do the greatest good
b.      Rule Utilitarianism – In all situations following a certain rule will do the greatest good
2.       Cost benefit balance – inflict minimum amount of punishment to achieve goals and only inflict pain if the benefit outweighs the pain
3.       Utilitarian Crime Prevention Goals
a.      General deterrence – creating a rule to deter other people from committing this crime or other crimes in the future
b.      Specific deterrence – creating a rule to deter the same person from committing the same crime again
c.      Incapacitation – imprisoning someone to get them off the streets
d.      Rehabilitation – punishing someone to cure them
                                                                                                                                       i.      General deterrence is the only justification that applies to this case – but most faced with this situation would still not be deterred (extreme circumstance)
4.       Retributivism – backward looking – punish b/c of the choice made and the harm inflicted (just deserts)
a.      Bases for determining what punishment is deserved:

have thought the GA statute was racist (fear of black men raping white women – GA was the only jurisdiction imposing death for rape)
a.     The Requirement of Previously Defined Conduct
                                                               i.      Legality
1.       A person may not be punished unless conduct was defined as criminal before act. There can be no crime without pre-existing law
a.      There are no common law crimes today – everything is under statute – judges cannot determine what crimes are
                                                             ii.      Separation of Powers
1.       It is up to the legislature to make the laws as the democratically elected representatives of the people, not judges
                                                            iii.      Fair Notice
1.       Legislative enactments give fair warning of their effect and permit individuals to rely on their meaning unless explicitly changed. A person may not be punished for an offense unless the statute is sufficiently clear that a person of ordinary intelligence can understand its meaning
a.      U àrequirement of fair notice enhances general deterrence principles: a person cannot be deterred from committing a socially unacceptable act unless he has fair notice of the line separating lawful from unlawful conduct. Essential part of deterrence is predictability
b.      R àwithout fair notice a citizen lacks adequate opportunity to conform conduct to the law: in the absence of such an opportunity, the retributive basis for moral condemnation is lacking. No free will in violation of the law
                                                           iv.      Due Process
1.       Vagueness: a vague statute does not give notice
2.       Overbroad: might encompass legitimate conduct
3.       Lenity: when a statute is ambiguous, then it will be interpreted in the light most favorable to the D
a.      criminal statutes should be strictly construed (Lenity has been rejected by the MPC and the NYPL)
                                                                                                                                       i.      § 5.00 NYPL – general rule that a penal statute is to be strictly construed does not apply
4.       A criminal statute must not be so “vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” A person is denied due process if punished for a violation of a statute that lacks such clarity
5.       In Re Banks – Banks is charged with peeping and he argues the statute is vague
a.      U theory doesn’t like vague statutes b/c it frustrates general deterrence – if overly broad – they will deter valuable conduct (like the death penalty for speeding = no one would drive)
                                                                                                                                       i.      vagueness risks under deterrence and over deterrence
b.      R theory doesn’t like vague statutes b/c it creates no clear choices and affects levels of culpability
                                                                                                                                       i.      If overbroad, the police can’t arrest everyone so they will start targeting who to punish (arbitrary enforcement)