CRIMINAL LAW
wEISBERG
FALL 2011
Purposes of punishment:
Retribution: Backward looking
· Punishment should be exacted based on what a person deserves (what they did, not who they are)
· Contra claim that punishment does not accomplish anything: punishment happens because it should!
o May help promote sense of moral uplift
· “Limiting Retributivism” – cannot punish UNLESS it is deserved (limits, but does not require, punishment)
· Protective retribution: criminal represents free rider who upsets balance between burdens and benefits of society. Balance must be restored.
· Victim vindication: punishment represents vindication of rights of victim in the face of criminal challenge
· Rooted in natural law
o Sentences are ordered according to desert
Utilitarian Theories: Forward looking
Deterrence:
· General: Discourage people in society (who haven’t committed a crime yet) from committing crimes
o General deterrence requires social signaling – these signals target certain audiences.
o Probability of prosecution is a greater deterrence than the severity of the punishment.
· Specific: Discourage a specific individual from committing additional crimes (once committed one)
· Utilitarianism: deterrence can be consistent with punishing innocent people (unless you take a broader view of the social calculus to include faith in government).
Incapacitation: Physically prevent a person from committing a crime (must have committed a past crime)
· May (sometimes) simply force criminals to be victims of crime in prison
o i.e. criminals deserve less protection from crime than innocents
· This doesn’t account for opportunity to commit crime (incapacitate one criminal to prevent a crime, another criminal may fill their place) – also account for cost of incapacitation = try to incapacitate the prolific “creative” criminals that create more opportunities for crime (not those who will be replaced)
· [No preventative/preemptive incapacitation allowed in our Constitutional system]
Rehabilitation:
· Legal system fixes flaws in character/behavior of criminal, so they will not commit additional crime
· Specific deterrence v. becoming “moral” human beings ultimately irrelevant
o deterrence = negative motivation (I’m a bad person but I dislike punishment)
o rehabilitation = positive motivation (I want to be a good person and I dislike doing bad things)
· Incarceration doesn’t necessarily rehabilitate in any way (may incapacitate during rehab process)
“Void for vagueness” (due process) – law must be clear about boundary between the legal and illegal
Actus reus + mens rea + (attendant circumstance) + (result) – (affirmative defense) = crime
Entitled to jury trial for any crime that carries a punishment of more than six months
Cannot be tried for same crime twice: double jeopardy
Exceptions:
1. Can be tried in different jurisdictions
a. Rodney King trial
2. Victories at intermediate level can be appealed, unless acquittal has been reached
Sentencing constraints:
1. Indeterminate
a. Judge unable to determine ultimate length of sentence, as parole board controls release
2. Unstructured
a. Judge can only exercise discretion within limits
3. Mandatory minimum
a. Often used in conjunction with drug offenses
4. Automatic sentencing enhancements
a. “Three Strikes Law” an example
Four (common) subject matter sources of appeal:
1. Federal Constitution
2. State Constitution
3. Statutory misinterpretation
a. Can rely on “Blackstonian” principles to infer legislative intent
4. Facts
Three (common) procedural bases of appeal:
1. Jury instructions
2. Evidentiary ruling (judge kept out some evidence that actually DID go to an element of the crime)
3. Insufficiency of evidence (evidence, as a matter of law, doesn’t prove elements)
a. Hardest type of appeal to win
Prosecution only allowed to appeal prior to attachment of jeopardy
1. Typically attaches when jury is seated
Federal crime v. state crime
1. Lots of overlap
2. Bank robbery an example of overlapping crime
Uniform law
1. State law
2. Uniform Commercial Code an example
a. Promulgated by American Law Institute
3. Quasi-federal in nature
a. Goal of uniformity
Model law
1. No expectation of uniformity
2. Value is normative
3. Represents consensus of states
4. Model Penal Code
a. Also promulgated by American Law Institute
b. Two parts
i. General part
1. Represents general principles
2. Very influential
3. Focus on clarity and ease of judicial interpretation
4. Largely descriptive
ii. Specific part
1. Less widely adopted
2. Should be consulted
Rule of Lenity (or leniency) ~ leniency in favor of the defendant? (on points of law in particular)
What is a crime?
1. Felony = punishable by >1 year in prison
a. Resulted in mandatory death sentence under old common law rules
2. Misdemeanor = less than a felony
3. Violation = not quite a crime (usually) – fines only?
Battery = forceful, nonconsensual touch (aggravated if intent to inflict serious bodily harm)
Assault = attempted or threatened battery (aggravated if intent to inflict serious bodily harm)
Larceny = theft; taking property of another – permission + intent to permanently deprive owner thereof
Robbery = Larceny (or attempt) + assault (avg. age under 20… almost all under 35)
Burglary = trespass onto someone’s property with intent to commit a crime; breaking and entering + intent
Where do criminals go?
1. Jail = local, county facility
a. Ei
he policy (Casey as convicted felon could not possess a firearm). Casey would not let officers retrieve gun, but offered to do it for them. Not guilty: no constructive possession of the firearm;
Adkins (Ky 2011): Physical possession ≠ “intent to control”: Adkins claimed that he pocketed drugs to keep them from his young son, with the ultimate intention of turning them in to the police. Court ruled that defense of “innocent possession” must be considered.
Barger (OR 2011): Viewing and searching for pictures on computer ≠ possession: Must either know that pictures are stored in cache or physically manipulate them in some way to “possess” or “control” child pornography.
· Search history (Dobbs (10th 2011)) may also help establish intent to control or receive
· May still be able to impose accomplice liability
Location:
Lewis (N.J. 2005): Constructive possession is located with the person, not the drug (though the drug must be close enough to infer possession on the person): Man convicted of cocaine possession w/in 500’ of school. Cocaine was > 500’ away, but man was observed moving between the cocaine and the school area (to sell marijuana)
Duration:
Lane (7th 2001): Short period of possession (merely taking gun in hand) long enough to establish dominion+ control [could be different drugs]: felon purchased gun for a friend;
· Must consider relatively dangerous nature of guns, as compared with drugs
Distribution:
Morrison (NJ 2006): Sharing ≠ distribution; cannot convert a double-possession case into a distribution case (distribution worse offense): two kids buy heroin together.
Shaffer (10th 2007): Distribution can be passive; convicted of distributing child pornography when he downloaded images and videos from a peer-to-peer computer network and stored them on his computer in an accessible shared folder; analogy to self-serve gas station.
Furtherance:
Gonzalez (9th 2008): border patrol agent caught on camera taking bale of seized marijuana for himself; convicted of firearm possession “in furtherance of the drug trade” b/c firearm emboldened and enabled him
Voluntariness: cannot be convicted of an involuntary act, since such is not really an act
Newton (NY 1973): Criminal liability extends only to a voluntary act: man with firearm on plane from Bahamas to Luxembourg makes surprise stop at JFK.
· Jurisdictional mistake enough to eviscerate voluntariness of action
