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Advanced Criminal Law
Temple University School of Law
Strazzella, James A.

United States v. Russell
Meth case
Defense put forth = entrapment
Burden of persuasion – has to prove beyond a reasonable doubt – who has to get the jury convinced about so mething – in this case must P prove beyond reasonable doubt
–          elements of crime proved by P – things not elemenets of crime may have to be proved by D
Burden of production – all elements must be produced by X and proved beyond reasonable doubt
Previous Law on Entrapment – D is predisposed to commit the crime – then it is not entrapment – vs.
Defense theory– “an intolerable degree of governmental participation in the criminal enterprise” – did they facilitate/make the crime happen – could the crime have happened without their action (losing/minority theory)
–          overzealous law enforcement
Argument is that Shapiro’s involvement in the criminal enterprise was so high that to prosecute D would violate the fundamental principle of due process (constitutional) –
D’s defense is analogous to the exclusionary rule – based on bad conduct by the police – if you get evidence illegally, i.e. against the 4th amendment, can’t be used in court
–          D’s defense – if police are overzealous and the crime would not have been committed otherwise, then crime basically not in court (not guilty because entrapment)
Law after this case – basically the same as it was before (predisposition) 
o   acquittals are diff than judgments and dismissals – acquittals cannot be appealed
What to Punish – Substantive Due Process Limitations
Lawrence v. Texas
State statute criminalizing sexual intimacy between same sex adult members violates their Due Process Clause rights?
–          were Ds free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause? Yes.
o   Whether the Const confers a fundamental right – not necessarily to sodomy – but to
§ Private conduct in a private place (consensual) – the law is seeking to control a personal relationship – within the liberty of people to choose without being punished
§ Liberty protected by Const allows people the RIGHT to choose to enter upon relationships in the confines of their homes and their own private lives
§ Statute furthers no legitimate state interest which can justify its intrusion into the individual’s personal and private life (RBT)
–          not a strong history of punishing these acts (as Bowers stated) – the laws that did have ancient roots involved predatory acts against those who did not consent
–          presently only 13 states prohibit the conduct – 4 only against homos
Planned Parenthood of Southeastern Pa v. Casey – cited – confirmed that the Due Process Clause protects personal decisions relating to marriage, procreation, contraception, family relationships, and educction
Dissent – says if homo sodomy was fund right should be strict scrutiny – also says majority never estbalished that it was a fundamental right
No right to liberty under due process clause – rather
–          14th amendment allows states to deprive their citizens of liberty so long as due process of law is provided (?)
–          Substantive due process holds that Due process Clause prohibits states from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest (majority)
Societal Costs of Criminalization
Degredation of the image of law enforcement, discriminatory enforcement against the poor, official corruption – can see this in prostitution
–          disrespect to the legislature – the laws we do not enforce
Drug laws – despite best efforts, conduct seems to flourish – condemnation for the law – tougher laws make them tougher to catch, more intricate systems – bribery and corruption become involved of local gov
Proportionality and Some Possible Constitutional Limits on Punishment
The requirement that the punishment be proportional to the seriousness of the offense
i.e. MPC 1.02 – purpose – to differentiate on reasonable grounds between serious and minor offenses
– to safeguard offenders against excessive, disproportionate or arbitrary punishment
Other reasons as well i.e. the Benthan – Principles of Penal Law
–          the value of the punishment must not be less in any case than what s sufficient to outweigh the profit of the offese
–          when 2 offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the lesser
–          punishment should be adjusted in such a mnaner to each particular offense, that for every part of the crim there may be a motive to restrain the offender from committing it
–          punishment not greater than what is necessary to bring action into conformity with the law
–          value of the punishment outweigh the profit of the offense
Ewing v. California – supreme ct
D shoplifted 3 golf clubs – then sentenced to prison to 25 years to life under Cali’s “Three Strikes” law
Arg – sentence was grossly disproportionate to the crime so it violated the 8th amend ban against cruel and unusual punishment
Rule: 8th amend does not prohibit a state from sentencing a repeat felon to a prison term of 25 years to life under Three Strike

–          killing innocents – 13 death row inmates in ILL exonerated, 120 death row inmates released since 1973
–          cost
–          discriminatory – racial bias
–          Repeal and moratorium movements (not widespread acceptance)
–          Deterrence? – substantial deterrence vs no effect theories vs brutalization effect
o   Is the research any good?
–          Retribution
o   Punishment – but – eye for an eye? We don’t rape rapists – advanced society
o   Knowledge of impending execution – huge psychological pain
Constitutional Limitations
Scope of cap punishment narrowed by
a)      division of murder into 2 degrees
b)      introduction of discretion in sentencing even for highest category
Procedural Due Process – all states commit the dp decision to judge or jury – but none provided any standards to guide that discretion.
–          thus need some criteria
8th amendment – Furman v. Georgia­  – dp is cruel and unusual punishment
–          all on diff grounds – potential for discrimination, penalty incapable of proomiting is social or public purposes, randomness of the penalty’s imposition (14th and 8th amend violation), average citizens not support if fully informed, not comport with human dignity
But it was not an outright rejection or indication under what conditions it might be preserved.
2 alternatives arose
a) legislation to make cp mandatory in certain cases
b) guildelines to determine who would be subjected to cp
Gregg v. Georgia – S Ct
D – convicted of murder and sentenced to death – argues that the death penalty is per se unconstitutional – cruel and unusual punishment and violation of 8th amend – relied on Furman v. Georgia – inadequate stds and guidelines to avoid capricious and indiscriminate impositions of a death sentence. 
State arg – it had cured the constitutional defects by requiring the jury to find that one of 10 specific factors exist beofre the penalty is imposed – statute also provided for review of all such sentences by the Supreme Court to determine if the sentence was justified and if one of the factors was present.