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

Criminal Law Outline
Professor Simons Spring 2010
Exam tips
· When forming arguments, the administrability of whatever lines are drawn is a factor to consider. How easy would it be to apply the rule…to enforce it….to punish for lack of abiding… and so forth
Sources of Criminal Law
Ø Common Law
v All felonies punishable by death
v Also had misdemeanors
Ø Legislation
v NY: A-E Felonies, A-B misdemeanors, violations
v MPC: 1-3 Felonies, misdemeanor, petty misdemeanor
Ø States
v Cali – codified common law
v NY: mixed MPC and common law
v 40 states have adopted large portions of the MPC. But it isn’t the law anywhere (always modified)
Ø Principles of Punishment
v Utilitarian
§ Act-Utilitarianism – in any situation do the act that results in the greatest good
§ Rule-Utilitarianism – in all situations, follow the rule that does the greatest go
§ Forward-looking in nature and consequentiality, cost-benefit analysis

§ Goal: Crime prevention for society and punishment minimalization through the following strategies
· General deterrence: Deter other people who would commit crimes
o Uniformity (predictability helps general deterrence)
· Specific deterrence: Deter that person from committing other crimes
· Incapacitation: Can’t commit crimes while incarcerated
· Rehabilitation: Teach person to be better
· Negative Retributism: No matter how great society’s benefit is; can’t punish someone who has done nothing wrong
· Want to deter people from committing crimes at all but if that is not possible law wants to only allow people to commit the crimes in the least violent way
v Retributive
v Focus on a Backward looking mentality and is Non-consequentialist in nature
v Goals: Looks toward Just deserts to individuals committing crimes
§ Harm: what were the results of the defendant’s
§ Culpability: choice made by the individual under the circumstances
· The amount of harm that possible can occur
· Look at the amount of planning and continuous thought process
· Intentional v. unintentional
· Remorse: some evidence of remorse may lessen retributism desert (culpability)
o Not a hard and fast rule
v Negative retributism
§ Desert allows punishment: Can’t punish someone if they don’t deserve it
v Positive Retributism
§ Must punish someone if they deserve it: Desert requires punishment
Ø Economics of Deterrence
Ø What goes into a person’s decision to commit a crime?
vAverage take: 2700
vArrest: 69%
vTrial: 90%
vSentence: 13 years
vRisk of Failure: 63% (increase for general deterrence)
vLikelihood of Success: 37% (decrease of specific deterrence)
vThe typical wrong reaction to try to reduce crime is to increase sentences
vGeneral deterrence only works to the extent that potential criminals know the specifics about the consequences
Ø Expressive Theory of Punishment:
v What values are criminal laws sending across to society?
v Punishment is justified as a means of expressing society’s condemnation.
v Pays attention to the message that is sent – educates individuals – utilitarian
v Victim vindication – expresses society’s outrage – prevents private vengeance – utilitarian
v Stigmatizes offender – retributive
§ Shaming Punishment (Standing outside Wal-mart with “I stole” sign)
· Is it a just sentence in caparison to the culpability and harm done by the individual
§ Counter utilitarian argument
· Does this actual promote social goals of general deterrence and specific deterrence?
v Says that wrongdoer deserves punishment – retributive.
Ø Proportionality
v Court must weigh Harm v. Culpability v. Dangerousness to society
Ø Constitutional proportionality (Death Penalty)
v 8th amendment (cruel and unusual punishment) is a check on proportionality
v Coker v. Georgia
§ Should the death penalty be allowed for rape cases?
· Death penalty is not appropriate for rape
§ Policy reason: we want an incentive for rapist not to murder victim
v A punis

ined in
v MPC: “a bodily movement that is the result of effort or determination”
v Why not punish people who thought about committing crimes?
§ Proof problems
§ Prediction problems
§ Freedom of thought
v Dangers
§ Punish innocents
§ Overdeterrence
§ Social unease
Ø The following are involuntary acts within the meaning of this Section 2.01(2) :
v a reflex, seizures, or convulsion;
v a bodily movement during unconsciousness or sleep;
v conduct during hypnosis or resulting from hypnotic suggestion;
v Bodily movement that otherwise is not a product of the effort or determination of the actor volition, either conscious or habitual
Ø Test example: Defendant has seizure disorder and doesn’t take his medicine. Gets in the car and drives and kills someone is his guilty of a crime? Yes, not taking the medication and getting into the car to drive is the act and crime.
Ø Find a voluntary act in which the defendant could have criminal liability
Ø State v. Utter: war vet father stabbed son, conditioned response. Not a defense.
Ø Why not punish involuntary acts?
v Not deterable
v Not culpable
Ø Omissions:
Ø Legal duty to act
Ø Knowledge of the facts that create the duty
Ø The ability to help
Ø A duty to act is created by (but Narrowly Construed)
v Statute Duty
§ Failure to file taxes
§ Doctors, police, teachers, and priests to report probable child abuse
§ Good Samaritan statute
v Voluntary assumption of care
§ Friend gets sick and you stay by the wait for help
v Create the situation of danger itself
§ Hit child but not your fault still a duty to help