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Criminal Law
SUNY Buffalo Law School
Ewing, Charles Patrick

Criminal Law 2008 Ewing
Definition of Crime: 1) Harm against society that’s 2) defined as a criminal in 3) NYPL or MPC with 4) punishment. All 4 elements have to be met.
Types of punishment
1. Fines ($$)-goes to state
2. Prison sentence-does nothing for the victim alone
3. Capital punishment
4. Probation
5. Community service.
Theories of Punishment
1. Deterrence/Utilitarianism
Aims of Deterrence/utilitarianism:
Reduce crime.
Limit punishment of the offender so that you’re not imposing unnecessary pain on the offender.
Under a utilitarian view, how do you calculate what the punishment should be? 
Punishment > Benefit from the crime
Punishment = likelihood of getting caught * likely sentence  
Punishment should be greater than the benefit, but only slightly greater. Marginal deterrence, attempting to deter people from committing worse crimes (e.g., deter people from killing in a robbery) 
Say that the benefit of burglary is $10,000, and that’s worth 6 months. If the threatened punishment is 7 months, the burglar would be deterred. (Must factor in likelihood of punishment, so actual sentence might be 5 years). 
Marginal deterrence means that armed burglary would be punished more than burglary.  
Does deterrence work if people are not rational? Not necessarily to be hyperrational, just commonsense ideas of risks. Perhaps you increase the punishment for crimes of passion instead of reducing it.
2. Retribution
The criminal should suffer for his crimes. It is morally wrong for the criminal to escape punishment.
No undeserved punishment
Calibration to blameworthiness
3. Incapacitation
There are some people who commit a lot more crime than others. A small percentage of criminals commit the majority of crimes, and if you could lock these superoffenders away, you could drastically reduce the crime rate. 
Identifying factors focus on drug use and criminality, both now and as a juvenile. 
82% of the people were found fit the model.
4. Rehabilitation
Treating people as ends rather than as means.  
Rehabilitation treats the offender most as an end, because you’re focusing on fixing the individual.
Reasons for punishment
A. Incapacitation; to keep someone from harming others for a time.
-It does work: put criminals behind the bar-no longer a threat excepts other inmates/correctional officers.
-Problem: When you end prison terms as he poses no threat, modern trend is that violent defender is always going to be violent, so they’re locked up forever–> rising costs & society isn’t tolerable of keeping people forever.
-unless we’re willing to pay for it/willing to lock people for forever==> politically unpopular.
B. Deterrence
            1. General deterrence-deter general public from committing the same crime in the           future.(sending message to other people not to commit similar crimes) -doesn’t carry much  weight;
-however, many crimes are impulsive/in need/passion so it will not likely deter others.
-People commit crimes because they are NOT rational.
-people don’t think about what they’re doing; even if they do again, they still do it.
            2. Specific deterrence-deter from committing the same crime: give message to a perpetrator that            he can’t do it again; relies on notion of correction, not rehabilitation:
C. Rehabilitation: medical model-penology: changing individuals into a better people by fixing psychologies; rarely works-
            1) It really isn’t why people cry that there is something wrong, they commit it because social values encourage criminal conduct.
             2) Rehabilitation is a bogus for justification of punishment in these era; we haven’t really tried to rehabilitate anyone. 
-Prison can’t rehabilitate anybody because of the nature of the prison.
D. Denunciation
-Set up values that we won’t tolerate in a society
-Doesn’t cost much resources
-Reasonable justification; sending a moral/ethical message to the society.
E. Retribution
-Eye for an eye, tooth for tooth
-people get what they deserve; making society feel better if we punish criminals.
-Prevalent on death penalty.
-limits amount of punishment that people get b/c retribution should mean giving you what you deserve; e.g. If you stole 3 golf clubs, you shouldn’t spend 25 years in prison.
I. Punishment
The Queen v. Dudley and Stephens (1884)
 Rule of Law: It is not legal justification to kill another to save oneself in the absence of self-defense.
1. Issue
If a man committed a murder in order to save his own life, in the absence of no violence or threat to his life, can it be justified?
2. Rule
Deliberate killing of unoffending and unresisting person is clearly murder, unless the killing can be justified by some well-recognized excuse admitted by law. Temptation is not an excuse.
3. Fact
4 men were isolated in a boat for 8 days without food and water due to tempest. 3 men killed a boy, who was unoffending or unresisting, in order to feed on him and save their lives until rescue comes. They’ve consumed blood and flesh of the boy upon killing him with knife. Later they were rescued. Had they not killed the boy and fed on him, they wouldn’t have made it. The boy, who was in much weaker condition, would have died before them.
4. Analysis
·         If sailors have drawn the straw and killed the boy, they would not have been charged because drawing a straw is a fair and just procedure. Everyone acknowledges that they’re willing to die.
Ø       they were liable because they deprived a fair chance to the boy; if they drew a straw, they might not have been liable because it’s fair.
·         After they were rescued, they talked about killing the boy; they did NOT think they did something wrong.
·         No pretense of fairness: they didn’t draw straw; they killed the weakest individual because he was weak.
·         What can be a justification for punishing Dudley and Stephens?
            -Seems as if there’s no right justification for punishment.
            1. General Deterrence? No, people wouldn’t be deterred if they’re in sailor’s shoe. They would still kill the boy to save their own lives.
            2. Specific Deterrence? No, sailors would commit the same crime if they face with the same situation.
            3. Rehabilitation? No, Dudley and Stephens were a very normal citizen; nothing to fix about them; they did what they could have done the best in a given situation.
            4. Incapacitation? No, Dudley and Stephens are not dangerous people that have to be locked up.
Alex Cabarga
 Man made sex tapes of Alex and little child; charged with kidnapping & rape.
1. Issue
Should Alex be held criminally liable? If so, what amount of punishment would you impose?
*Tree frog was convicted for 121 counts-life imprisonment.
Alex was charged with similar counts as Tree Frog.
·         What is some justification of Alex’s charge?
o        Incapacitation: No one would want Alex to walk around their neighborhood. No one can guarantee if he’s safe to be around kids.
o        Denunciation: Lesson to other people.
                                          : did Alex commit crime on his own free will?He was coerced to                                                       commit these crimes. However, because of lack of socialization, was he                                                       willing to rape the child? Can we say he intend to rape children?

hey have either experienced negative consequences of that behavior (e.g. prison sentence), or have been treated or trained to extinguish that behavior. The term is most frequently used in conjunction with substance abuse and criminal behavior.
Ewing’s sentence is justified by the State’s public-safety interest in incapacitating and deterring recidivist felons and supported by his own long serious criminal record (recidivism): it reflect a rational legislative judgment that the sentence is not grossly disproportionate and doesn’t violate 8th amendment.
Recidivist statute is justified for the purpose of incapacitating criminals for the safety of general public.
·               8th amendment doesn’t mandate one penological theory. Different sentencing might be justified by different penological theories. Therefore, 8th amendment doesn’t require strict proportionality between crime and sentence. It only consider if sentences are grossly disproportionate.
2. Legality
The due process clause of the federal constitution, found in the 5th and 14th amendment, has been interpreted by the Supreme Court to require that no criminal penalty be imposed without fair notice that the conduct is forbidden. The ‘void-for-vagueness’ doctrine, which as been held to require particular scrutiny of criminal statute capable of reaching speech protected by the first amendment, incorporates 2 considerations
1. Fair warning: A statute must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.
·         Ex post facto law-importance of giving NOTICE 
2. Arbitrary and discriminatory enforcement must be avoided
A statute must not encourage arbitrary and erratic arrests and convictions.
Nullum crimen sine lege, nulla poena sine lege – “No crime without a law, no punishment without a law” A person may not be punished unless her conduct was defined as criminal before she acted. The reasons for the principle:
Preventing the government from punishing its enemies by enacting vindictive, after-the-fact statutes
Fair notice – A citizen should be free to choose between lawful and unlawful conduct; without fair notice of what the law is, the citizen has no opportunity to conform her conduct to the law. Also, a person cannot be deterred from committing a crime without fair notice that the act is a crime.
Corollaries to the principle of legality:
Criminal statutes should be understandable to reasonable law-abiding people (specificity)
Criminal statutes should not delegate basic policy matters to policemen, judges, and juries for resolution on an ad-hoc and subjective basis.
Judicial interpretation of ambiguous statutes should be biased in favor of the accused (lenity)
Commonwealth v. Keller
-killing babies in bathroom
Rule; It is the common law of this Commonwealth that whatever openly outrages decency and is injurious to public morals is a misdemeanor and punishable at law.