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Criminal Law
SUNY Buffalo Law School
Chiesa, Luis E.

Criminal Law, Chiesa; Fall 2013
Deserved punishment, according to blameworthiness, as a value in itself (deontological desert)
Things are inherently good or inherently evil
Utilitarians or Instrumentalists (Consequentialists)
Punishment as a means of avoiding future crime
Traditionally through mechanisms of:
Deterrence (special and general)
Incapacitation of the dangerous (i.e. jail time)
Weigh the costs: economic, inflicting harm on offenders
Only punish if the benefits of punishing outweigh the costs (even if ∆ is deserving of punishment) (i.e. if rehabilitated, no reason to punish)
More recently utilitarianism defined through power of social influence
Criminal law harnesses that social influence by having punishment track shared community intuitions of justice (empirical desert)
Retribution (punishment that looks back at what you did and punishes based on what you deserve)
One form of deontological theory of punishment
Punishes a wrongdoer in itself- doesn’t look at potential consequences for the future, just looks to the past.
The offense was inherently wrong
General Deterrence: goal is to achieve socially desirable end w/in the public
Unclear whether it actually works in particular cases
Special Deterrence: goal is to deter specific offender at hand (i.e. put someone in jail so they won’t want to commit the offense again)
Incapacitation: (special deterrence) takes away a person’s ability to commit the offense again
Rehabilitation: (special deterrence) specific treatment to the offender
Empirical Desert: the best way to make citizens law-abiding is to punish them with what they deserve, not in regards to general deterrence
When there’s a perceived injustice it generates unrest and the law loses its power.
Thus, the law must punish in a way that is perceived as fair
Retribution v. Empirical Desert
Retribution tries to achieve the universal ideal of justice.
Empirical desert track a specific society’s conception of justice
Legislativity: Legislature is the only governmental body allowed to criminalize conduct.
Statutes must be taken at their face; courts cannot change the intent/meaning
It is the legislature’s job to create criminal laws
The legislatures represent the “will of the people,” courts do not (Democracy argument)
Criminalizing conduct takes away one’s liberty/life, thus people want to feel that they “consent” to the laws- not that un-appointed judges have the ability to criminalize conduct.
(Some jurisdictions have adopted common law crimes in penal code)
Specificity: prohibition on vagueness
Criminal statutes cannot be too vague as per the due process clauses of 5th and 14th Amendments
They must give fair notice about what the prohibited conduct is
A person of common intelligence should not have to guess at the meaning of a statute, otherwise it is too vague (overinclusive)
Versus underinclusive: too narrow as to exclude conduct that society believes is punishable and ought to be deterred (generally a problem with legislativity)
Prospectivity: ban against ex post facto laws
Crimes can only be punished in a prospective fashion. They cannot retroactively make conduct criminal and punish for that conduct when it was previously lawful
Procedural laws generally fall outside of ex post facto ban
According to the US Sup. Ct., there are four types of ex post facto laws:
Laws that retroactively criminalize conduct that was not criminal at the time the act was performed.
Laws that retroactively aggravates punishment (or the gravity of a crime) compared to the punishment (or the gravity of the crime) at the time the act was performed.
Laws that retroactively change the amount of evidence that is necessary to convict the defendant.
As a general rule, procedural laws that do not change the amount of evidence that is necessary to convict the defendant do not trigger ex post facto concerns even if they are applied retroactively to the defendant
At common law, most courts applied a rule that required them to strictly construe ambiguous statutes in favor of the defendant.
This rule of strict construction is also called the rule of lenity.
Nevertheless, the modern trend is to abolish the rule of lenity and substitute it with the “fair import” rule. See, e.g., MPC §1.02(3).
According to the “fair import” rule, “when the language is susceptible of differing constructions it shall be interpreted to further [the aims of punishment] and the

D must also be physically capable of performing the omitted act (i.e. omission must be “voluntary”).
Belief that the result of something by way of an omission is less reprehensible than positive conduct that causes that same result.
There are some omissions that are punishable when there is a legal duty to act.
Criminal liability for omissions is triggered when:
The law specifically/expressly defines the omission offense
There was a legal duty to perform the omitted act and the omission contributed to bringing about a criminal harm (MPC §2.01(3)(a)and(b))
Examples of Legal Duty
Parent-child (blood relation is not relevant)
People with close relationships (there are limits)
Facts to determine if a legal duty exists:
Close relationship
Duty imposed by a statute
Voluntarily assuming to help (once you start helping, you must continue)
You create the risk (i.e. hit/run)- triggers one’s responsibility to act
Omissions- Legal Duties to Act
There is a legal duty to prevent a harm proscribed by law when:
Statute imposes a duty to care for another
∆ stands in a close status relationship to victim or perpetrator
Duty imposed by K
∆ voluntarily assumed duty to help
∆ created the risk that endangered victim
∆ must be physically capable of performing the omitted act 
Possession Liability Under MPC –
It is unclear whether possession is an act, an omission or something else.
You are in possession of your shoes right now. Does that amount to an act? Omission? Something else?
Possession liability MPC REQUIRES when D is:
In possession of an object that the law prohibits possessing, and
He is aware of his possession for a sufficient period to have been able to terminate the possession. MPC §2.01(4).