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Criminal Law
SUNY Buffalo Law School
Chiesa, Luis E.

Criminal Law Chiesa Fall 2016
Chapter 1 – Nature of Punishment
Substantive – what is a crime, what conducts give rise to punishment. The rules that define crimes, limiting the states power to punish.
Why distinguish between punishment and civil sanctions? à punishment triggers right to counsel, speey trial, trial by jury, right to compulsory process, double jeopardy, prohibition of ex post facto laws.
What is punishment? – Distinguish from civil sanctions: tort liability, civil commitment, suspension of driver’s license. Punishment triggers a set of procedural and substantive rights that are not triggered by civil sanctions. Several examples:
– Right to counsel, speedy trial, trial by jury, right to compulsory process.
– Double jeopardy
– Prohibition of ex post facto laws
Double Jeopardy: Can’t punish twice for the same offense.
SCOTUS RULE – a sanction is penal as opposed to civil if:
– the statute authorizing the sanction is expressly punitive in nature
– the sanction more closely resembles punishment than non-punishment
Whether the sanction involves an affirmative disability or restraint à disability and restraint on citizenship (imprisonment), can’t enter the U.S., not a slam-dunk bc can go anywhere else in the world.
Whether it has historically been regarded as a punishment à yes, use stripping citizenship as punishment.
Whether it comes into play only on a finding of scienter (fact done knowingly) à
Whether its operation will promote the traditional aims of punishment-retribution and deterrence à yes, retributive, should be punished
Whether the behavior to which it applies is already a crime à yes, criminal
Whether an alternative purpose to which it may rationally be connected is assignable for it.
Whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions.
Constitutionality of depriving an American of their citizenship as a punishment, without affording the accused 5th and 6th Amendment rights. Is sanction/ draft evasion/deportation punitive?
Does the sex offender registration and notification law constitute retroactive punishment forbidden by the Ex Post Facto Clause?
Distinguishing Punishment from Civil Action
Kennedy v. Mendoza (strip of citizenship is punitive. Need due process, double jeopardy)
F. Dual citizenship. Avoided draft left U.S., came back. Served time. 5 years after he got out, issued arrest and deportation for draft evasion
R. 6th Amendment – right to trial, due process (only applicable for fed crimes)
I. Constitutionality of depriving an American of their citizenship as a punishment, without affording the accused 5th and 6th Amendment rights. Is sanction/ draft evasion/deportation punitive?
A. No. It is punitive. Lacking procedural safeguards which the Constitution demands. Punishment cannot be enforced without due process.
N. Counsel must advice non-citizen clients of deportation risks of entering a guilty plea in a criminal proceeding. Don’t need to advise clients of “collateral consequences” because they are not criminal matters. (loss of professional license, eviction from public housing).deportation hearings are civil but closely related to criminal process.
MPC Distinguishing Punishment from Civil Action
Penal vs. non-penal based on the sanctions imposed
Code treats the severity of the penalty as essential to determining whether it should be considered penal or non-penal. More severe the sanction = more likely to be penal
Imprisonment or probation is vied as penal bc it is so severe.
Smith v. Doe (Punishment: Can’t punish retroactively unless non-punitive statute)
F. Doe, sex offender or child kidnaper incarcerated in Alaska must register. Released info on the internet.
R. Ex Post Facto: retroactively changes the legal consequences of actions that were committed, or relationships that existed, before the enactment of the law.
I. Does the sex offender registration and notification law constitute retroactive punishment forbidden by the Ex Post Facto Clause?
A. Alaska Sex Offender Registration Act's retroactive application does not violate the Ex Post Facto Clause because the act is non-punitive. The act was clearly intended as a civil, non-punitive means of identifying previous offenders for the protection of the public. Registration didn’t impose any affirmative disability or restraint.
N. statutes may be applied retroactively because they are not penal in nature. Act imposes no physical restraint, so does not resemble punishment of imprisonment. Stat may take measures to restrict the freedom of the dangerous mentally ill. This is not punishment. It is confinement for mentally ill who are dangerous to the public. If detention for the purpose of protecting the community from harm necessarily constitutes punishment, then all involuntary civil commitments would have to be considered punishment. Usually shaming sanctions are punitive, but court said the purpose of the registration wasn’t to shame but to send out truthful info to the public so they can protect themselves against dangerous individuals.
Spanish Constitutional Court: Cannot keep a person in pretrial forever (speedy trial) pretrial amounts to Pretrial amounts to serving time- this is known because pretrial time served is subtracted from sentence. 6 months detention, state passed a new law to keep for 2 years. He claims he shouldn’t be under that law because it was after the conduct. Pre-trial detention à to protect the public, make sure they don’t leave. IT IS NOT PUNITIVE. It negatively effects the D’s freedom (depriving). Pre-trial detention on the other hand is so much like punishment. So they take time off the total bid. Purpose is in case there is doubt for them to appear, cause harm to the community, failure to post bail.
Comparative Perspective
HLA Hart: In order for a sanction to count as punishment it must be imposed for “an offense against legal rules”. It must be triggered by a violation of rules (offense against legal rules). The punishment is imposed for the offence of a legal rule. Why the violation of the legal rule is relevant (retributivist, deterrence). Punishment must involve pain/other consequences considered unpleasant.
Joel Feinberg: In order for a sanction to count as punishment it must “express moral condemnation (strong disproval)” (pretrial detention does not count as punishment). Punishment has a symbolic significance. It has an expression of moral condemnation, did wrong but morally wrong. (parking ticket, offside penalty are not moral condemnations).
Leo Zaibert: In order for a sanction to count as punishment, either the punisher or a segment of the population must feel indignation (anger) as a result of the offender’s action. People feel anger towards sex offenders. Ex: silent treatment to a friend, doesn’t seem like a punishment but someone feels something. Same for a state punishing someone without communicating anything, also same for deportation. Punisher feels indignation to offender.
Chapter 2 – Purpose of Punishment
1. Substantive reasonableness
U.S. v. Irey (substantive reasonableness. Statutory min wasn’t = seriousness)
F. Irey was a sexual predator who abused ~50 children for years. He was convicted and sentenced to 17 ½ years (close to the minimum sentence). District court described Irey as suffering from the “illness” of pedophilia.
R. 3553(a)– factors consider when sentence is substantive reasonableness:
i) the nature of the circumstances of the offence and the characteristics of the defendant.
ii) Sentence imposed to reflect the seriousness of the offence to provide just punishment – reflect the harm done and the public interest in preventing a recurrence. (“just desert” – punishment fit the crime/amount of blameworthiness).
iii) the need for the sentence imposed to afford adequate deterrence to criminal conduct (general deterrence).
iv) the need for the sentence imposed to protect the public from further crimes of the defendant (specific deterrence or incapacitation).
I. Whether the sentence is substantially unreasonable?
A. Not just punishment. The sentence was at the statutory min. 17.5 years does not reflect the seriousness, respect for the law, and does not provide just punishment for actions.
N. Medical models – See crime like a disease à shift to cure à  Retribution, deterrence (gen,spec

ey Facts= D and a friend picked up a prostitute in their car. They beat her and raped her four times. They took money from her purse and then allowed her to leave. They threatened her about 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.
Robinson: Empirical Desert: Desert intuition of the community. Survey the community. Whatever community thinks is what Empirical Desert is. Based on the given community believes as desert.
Punish wrongdoers in accordance with their desert, not bc it is intrinsically good, but bc doing so produces good consequences. General agreement that murder is worse than robbery. No agreement on the end point of punishment. Retributivist but only because it is the best deterrence, it will lead to less crime. Punish in ways that is fair to the pop. Believes in deterrence but says we should follow retribution. If gov’t punishes properly, then people will cooperate with the government and respect the norms. Gov’t gets more “legitimacy chips”. Then wants to punish for something that is not agreed on by the public. The gov’t can cash in with their chips because people can trust them (insider trading).
Kahan: Expressive theories suggest that offenders deserve punishment because their conduct expresses disrespect for important values. Punishment then counteracts the offender’s expression by reaffirming the primacy of the values disrespected by the offender. When offender kills, disrespect to human life. Punishment is strong disproval of the disrespect, we reject this expression. It reassures citizens that they can stand behind the law (can be trusted), and protect the values.
Expressive era view/theory: the purpose of punishment is moral condemnation. –imposing the proper for and degree of affliction on the wrong doer, society says that those offenses counts as wrong. –if they do not sanction the offense, it looks as if they are endorsing the offense.
-an individual deserves punishment when they show disrespect for important values.
-proper punishment appropriately expresses the values disrespected. -(deterrence)
-weight of punishment is determined by level of harm to society.
-another way deterrence is reinforced-preference formation-instilling aversions of prohibited behavior. These are also known as “moralizing” or “moral educative”
                        -the law moralizes through good will-perception of justice
Tadros: don’t punish bc they deserve it. Theory why offenders have a duty to being punished. Ex: Dog not on leashe, bites a child. The owner has assumed a duty to be harmed. Prefer he suffers physical harm and not the child. Doesn’t rely on deterrence.
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-