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Criminal Law
SUNY Buffalo Law School
Chiesa, Luis E.

Chiesa, Criminal, 2014 Fall

Book: Substantive Criminal Law: Cases, Comments and Comparative Materials

Chapter 1: The Nature of Punishment

§1.01 Distinguishing Punishment from Civil Sanctions: In General

Substantive law

· The elements of a criminal offense which will then generate liability-rules that define crime.

Criminal law was common law but evolved →process called codification (restatement) off all laws and concluded in a structured drafted a Model Penal code 1962 (2/3 states follow)

ì Why care about the distinction between punishment (criminal law) and civil sanctions (civil law)?

Punishment triggers a set of procedural and substantive rights that are not triggered by civil

– Right to counsel, speedy trial, trial by jury, right to compulsory process, double jeopardy

– Prohibition of ex-post facto

– The hardest sanction is in criminal b/c you can be deprived of freedom. –you are afforded many procedural rights to make sure you did it

-criminal is designed to give doubt to the accused

Kennedy v. Mendoza Martinez

Issue: whether 401(j) is constitutional? F: Mendoza was born in US but left US to evade military service. Received a warrant for his arrest in deportation. He supposedly lost American citizenship. He appealed and it was dismissed. He sought a declaratory judgment. The CT ultimately decided that 401(j) was unconstitutional b/c they did not provide him with due process and it was punitive in nature. ——he wanted this immigration mater to be considered as criminal b/c you get more guaranteed rights and right to counsel can be included

· If the sanction states it is punitive- then that is the end.

· If it is unclear whether it is punitive –if it resembles punitive, then it is punitive

Test for penal or regulatory

· 7 elements

ì Whether the sanction involves an affirmative disability or restraint,

ì whether it has historically been regarded as a punishment,

ì whether it comes into play only on a finding of scienter,

ì whether its operation will promote the traditional aims of punishment-retribution and deterrence,

ì whether the behavior to which it applies is already a crime,

ì whether an alternative purpose to which it may rationally be connected is assignable for it, and

ì whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions

· totality of circumstance

-Circumstances taken into account- A test used to determine whether certain constitutional rights of a defendant have been violated. The test looks to all the circumstances attending the alleged violation, rather than to any particular factors.

While some factors may recur more frequently than others, the relative importance of any one factor depends upon the particular facts of a case

§ 1.03 Recent Developments

Sex offender registration

· Not punitive regime

· Made to protect public

· Intended for civil- imprisonment can still be imposed by moral condemnation

· May be applied retroactively to persons who committed sex offenses b4 the registration statute were enacted b/c statutes are not punitive in nature

§1.04 Comparative Perspectives

Spanish Constitutional Court

· Cannot keep a person in pretrial forever (speedy trial) pretrial amounts to serving time- this is known because pretrial time served is subtracted from sentence

§1.05 Scholarly Debates

· In order for a sanction to count as punishment it must be imposed for “an offense against legal rules” – HLA Hart.

· In order for a sanction to count as punishment it must “express moral condemnation” – Joel Feinberg. (pretrial detention does not count as punishment)

· In order for a sanction to count as punishment, either the punisher or a segment of the population must feel indignation as a result of the offender’s action – Leo Zaibert

Chapter 2: Purpose of Punishment

§2.01: In General

Why Punish?

· Consequentialist answers:

-To neutralize dangerous offenders

-To deter the offender from recidivating

-To deter others from engaging in similar offenses

-To rehabilitate the offender

1. Specific Deterrence – punishment discourages the offender from engaging in future crimes.

2. General Deterrence – punishment discourages the general population from engaging in crimes similar to the one being punished.

3. Incapacitation – restraining or neutralizing the offender in a way that prevents him from committing future offenses

Examples – imprisonment, death penalty, castration, etc.

4. Rehabilitation – treating the offender in order to reincorporate him to society

· Non-Consequentialist answers:

-To give to the offender what he deserves.

-To punish those who deserve to suffer for what they have done is intrinsically good

1. Retribution – punishment gives to the offender what he deserves

United States v. Irey

Irey raped, sodomized and sexually tortured over fifty girls in Asian countries. The maximum he could be sentenced to serve was 30 yrs but was only sentenced to 17-1/2 years—court made a crazy error-sentence was way too close to minimum sentence which was 15 years. Ct felt it was unreasonably light and an abuse of discretion.—sentence needed to 1) reflect the seriousness of the offense, 2) to promote respect for the law, 3) to provide just punishment for the offense, and 4) deterrence or incapacitation factor for the public

-He claimed he had an illness called “pedophilia” but did not excuse his acts but was considered—Counter Arg.: He knew what he was doing b/c he never did it in the US

4 purposes of sentencing

· Retribution

· General deterrence

· Specific deterrence

· Rehabilitation (weakest argument)

1. Medical model co

out reporting an incident to the police. Charges & convictions=D was tried and convicted of two counts of forcible rape and one count of robbery.

· One will have to give up consequentialist theories of punishment if you feel he should be punished because there is no consequentialist reason to punish him.

Victor Tadros, the Ends of Harm: The Moral Foundations of Criminal Law

Imagine: person committed many racially motivated murders. He has been identified but punishing him has no deterrent effects (only seeing the offense and getting him in custody.)

-The punishment for him must affect him- if the murderer live a happy life, something is wrong with the punishment. – The punishment does not fulfill is purpose which is to punish. He will get nothing out of the punishment. The msg of respecting the legal norms does not get fulfilled. I agree with his claim i) A Duty to Bear a Cost-

Empirical and Deontological Desert

Deontological desert= an assessment of moral blameworthiness-derived from right and good by moral philosophers

Empirical deserts=derived from social science studies of a community’s shared intuitions/principals of justice. (Not “true justice”-only a representation of the principals by which the community actually makes judgments about justice

Notes and questions p28

1) resemblance- Jokobs “positive general deterrence” to Kahan “expressive theory”

2) Jokobs “positive general deterrence”= consequentialist- ultimate aim is to achieve good consequences. Also punishment is instrumentally good because it promotes certain instructions that are essential to organize society.

-Kahan’s “expressive theory”-also consequentialist because it can be used to shape the beliefs and preferences of citizens in positive ways. Mainly, it suggest that offenders deserve punishment because their conduct expresses disrespect for important values. More reasons why the offender deserves punishment

My opinion: I think that the expressive theory is best conceived as retributive because it mainly suggest punishing for any offense. Under expressive theory, is any offense is considered disrespect for values?

3) My opinion: I would impose punishment on him even though it will not serve as deterrence or shape the belief of the general public/people. Punishment serves no punishment for consequentialist but it makes individualist and moral difference/ impact.