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

Dean Simmons
Criminal Law
Spring 2010

Theoretical Underpinnings

Sources of Criminal Law

Common Law

All felonies punishable by death
Also had misdemeanors


NY: A-E Felonies, A-B misdemeanors, violations
MPC: 1-3 Felonies, misdemeanor, petty misdemeanor


Cali – codified common law
NY: mixed MPC and common law
40 states have adopted large portions of the MPC. But it isn’t the law anywhere (always modified)

General Part of Crime
1. Actus reas —————————————————————————————–Act
2. Mens Rea —————————————————————————————Intent
3. Causation ———————————————————————————–Causation

Principles of Punishment

Utilitarian (Bentham)

Forward-looking, consequentialist, crime prevention
The good of the many
Punishment itself is an evil, utilitarians want the minimum punishment that will get the job done
Why punish?

i. General Deterrence: deter other people who would commit crimes
ii. Specific Deterrence: deter that person from committing other crimes
iii. Incapacitation: can’t commit crimes while incarcerated
iv. Rehabilitation: teach person to be better or cure them

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 good
Goals: to protect society

Retributivism (Kant)

Backward-looking; Just deserts; people get what they deserve; non-consequentiality
Looks at harm caused and culpability of defendant
Does not care what consequences of punishment will be
Positive Retributivism: desert requires punishment
Negative Retributivism: desert allows punishment (you can’t punish somebody unless he just deserts)
Remorse – may lessen retributive desert.
Goals: to punish defendant

3. Harm – Injury Caused
4. Culpability – choice made

Principle of Punishment







Crime Prevention & Punishment Minimalization –
Purpose of punishment:

General deterrence
Specific deterrence

Just Deserts

Negative retributive: Desert allows punishment (you can’t punish somebody unless he just deserts)
Positive Retributive: Desert requires punishment

Harm: Injury Caused
Culpability: Choice Made

Level of Crimes

Levels of Crimes

1. Common Law

2. Modern Penal Code

3. NY

§ Felony (punishment is death)
§ Misdemeanor (punishment is something other than death) (Modern time: maximum sentence is a year or less)

§ Felony: 1st, 2nd, 3rd degree
§ Misdemeanor: Misdemeanor,
Petty Misdemeanor

§ Felony: A, B, C, D, E felony
§ Misdemeanor:
§ A Misdemeanor,
B Petty Misdemeanor

§ Infraction

§ Violation

§ Violation


Sentencing Systems:

Indeterminate: wide judicial discretion, parole board makes ultimate decision on length
Indeterminate (NY): Judge assigns maximum sentence, defendant is eligible for parole after 1/3 of the sentence.
Determinate: Federal system. No parole. Judge has little discretion. Elements of crimes have point values that make up sentence.

Expressive Theory of Punishment:

Punishment is justified as a means of expressing society’s condemnation.
Pays attention to the message that is sent – educates individuals – utilitarian
Victim vindication – expresses society’s outrage – prevents private vengeance – utilitarian
Stigmatizes offender – retributive
Says that wrongdoer deserves punishment – retributive.
Judge Karlin’s Sentencing Rationales – People v. Du

i. To protect society (general utilitarianism)
ii. To punish the defendant (general retribution)
iii. To encourage D to lead a law-abiding life (specific deterrence)
iv. To deter others (general deterrence)
v. To isolate the D so she can’t commit other crimes (incapacitation)
vi. Restitution (Compensation – civil)
vii. Uniformity
g. Economics of deterrence

Risk of — .69 (Chance of getting caught)
Failure — .90 (Chance of getting convicted)
à .62 x 13 years = 8 years

Chance of Success — .38 x $2.600 = $1,000

h. Why give recidivists more punishment
i. Does

y of the offense – seriousness of the harm compared with the severity of the punishment for proportionality
ii. Intra-jurisdictional analysis – look at how other crimes in the state are punished in relation for proportionality.
iii. Inter-jurisdictional analysis – Look at what other states do in relation.
4. Legality

Policies Underlying legality:

i. Democratic Legitimists
ii. Fairness
i. Notice
f. Unconstitutionally vague
ii. Arbitrariness
f. Unconstitutionally Overbroad

Constitutional Prohibitions

i. Ex post Facto Clause
i. Prohibits retroactive lawmaking by legislatures
ii. Due Process Clause
i. Prohibits retroactive law making by judges

Generally, it can’t be a crime unless people know it’s a crime. It must be narrow enough that people know what’s illegal, and that it doesn’t outlaw constitutionally-protected behavior.

d. Commonwealth v. Mochan
i. When the conduct alleged is not prohibited expressly by criminal statute, a violation of the legality principle does not exist if a statutory provision permits punishment of common law offenses
e. Keeler v. Superior Court:
i. California statute was codification of common law, which in 1850 said killing a fetus wasn’t murder. Therefore, killing a fetus isn’t murder.
ii. Could argue living Constitution –
i. Notice – if law is out there – we assumed that you know it
ii. Separation of powers – judicial law –making?

Statutes are overbroad only if they can be read to outlaw constitutionally-protected behavior.

i. In Re Banks: peeping-tom statute not overbroad.
i. “Any person who shall peep secretly into any room occupied by a female person shall be guilty of a misdemeanor and upon conviction shall be fined or imprisoned in the discretion of the court.”
ii. Objection
f. Unconstitutionally vague
g. Unconstitutionally overbroad – could be read to arrest people committing 1rst amendment rights

Penal statutes are construed as favorably to defendant as possible.

i. Crimes must be defined by the legislature
ii. Legislature cannot create retroactive crimes
iii. Judges can/must interpret legislative definitions
iv. Unfairly ambiguous statutes may be unconstitutional
i. Statutory vagueness – Can people read it and know what is illegal
v. Overly broad statutes may be unconstitutional