· Introduction- STRAZELLA; CRIMINAL LAW- FALL 2010
o Why do we have a criminal law?
· Smooth running of society
· Legislates morality
· Interesting
o If none of us have ever read a criminal law, how do we know to follow them, why do we follow them?
o Why should we study criminal law?
· You think you know something about it, but you don’t. Your experience with the criminal law is from afar, yet somehow we end up lawful people.
· It is an area in which you come in with bias or feelings about how things should be.
· The only statutory course is criminal law
· Mandatory implications to everyone
§ Whether or not it is carried out or handled equally is a separate issue.
· Historically a common law matter, now all crimes are statutory
§ Statutes gave fair notice and allowed gradation
§ Statutory reaction to perceived problems (rape law)
o Huge variation in criminal law from jurisdiction to jurisdiction
o Reading and interpreting statutes
o Understand the importance of facts
o Read and apply a statute
· Set of statutes and applying fact pattern to statutes to exam
o Bad thing about lawyers is they are lawyers
· The Justification for Punishment
o Why Punish
· Retribution
§ Retributivists claim that punishment is for punishments sake
§ Punishment is justified because people deserve it, they have done wrong.
§ Retributivists are backward looking, they see what has been done in the past and seek to justify punishment based on that.
§ Is it ok just to punish people absent a future purpose?
§ Criticism?
· Backwards moral alchemy
· Abandonment of any serious attempt to provide a moral justification for punishment
· What is the solution if its not ok to punish for punishments sake and nothing good is going to come from it (rehabilitation, general deterrence, specific deterrence)
· Utilitarianism
§ Utilitarians believe that punishment serves useful future purposes
§ Utilitarians are forward looking
§ Deterrence
· Need to be aware of repercussions, what the name is, and what the punishment actually was.
· Deterrent to the particular activity that the person was punished for.
· Would it be helpful for people to know the particulars of the crime?
· How would they know not what to do?
· Does deterrence have a greater effect for violence, or theft?
· Violence are crimes of passion usually
· Will deterrence work?
· Theft has planning, more deliberation
· For the purposes of deterrence, wouldn’t it make sense to know what the punishment is going to be?
· If deterrence effects anyone, it effects the people who are able and contemplating
· General Deterrence
· We don’t have evidence that it does work, we don’t have evidence that it doesn’t.
· Aimed at people who are in a position to commit the crime in the first place
· Aimed at people where the crime could be contemplated, if it can be achieved
· Very poor at deterring crimes of necessity
· Should necessity be a defense to crime, mitigating in sentencing?
· Should good deeds be taken into account to counterbalance it?
· Mental State?
· What if the benefits went not to the criminal, but to someone else, some third party.
· If they think something isn't a bad thing, they get no personal gain, no physical harm
o Assigning Punishment – Sentence Length
· United States v. Milken
§ Notes
· His defense was that the crimes were not based upon personal gain, they were technical crimes, and he has done many great things through his life.
· The judge was not buying it.
· Community service was not sufficient
· If I was a criminal, I would do really criminal things
· Judge felt it was the fact that they were hard to spot was the reason to punish.
· To do otherwise would encourage smart people to eat at the fringe of the law. Deter people situated like you, or people who aspire to it.
· People were aghast that he got 10 years for this.
§ Facts: D was one of the worst abusers of power in Wall Street history. He used his position of power to subtlety defraud thousands. D had made countless efforts in the past to serve his community. D was sentenced to 10 years out of a possible 28
§ Issue: Was this sentence proper given the non-violent nature of the crime and his otherwise spotless record.
§ Holding: The sentence was reasonable and within statutory range.
§ Reasoning: The sentence needs to deter others. What was disturbing was the length of the crimes, the abuse of power, his position of prominence. The court was angered that D would think his past great acts should nullify what he did.
§ Law: A sentence that is within statutory range is not up for judicial review less other error.
§ Crimes of deception that use prominence and power are particularly worthy of punishment in a community
· United States v. Jackson
§ Notes:
· Why was Jackson convicted for life?
· Conviction of possession of a gun during commission of a felony. Sentenced to life under three prior felony convictions.
· The statute is construc
he supreme court previously not view consensual homosexual activity as a fundamental right?
· Norms and culture of U.S. and Western Civilization in general.
· What were the legitimate state interests?
· Furthering the “powerful voices”, religious beliefs and respect for the family.
· Where does this belief in “respect for the family” come from?
· Seems to have religious roots.
· How is it offensive to a family if two men in Georgia want to have sex?
· Slippery slope straight down to gay marriage. It would become unconstitutional to restrict gay marriage.
· Why is the court changing their view
· MPC opposes
· States have struck down the statutes in many cases, 50 states versus 24 by the time of Lawrence.
· Attacks the Bowers reliance on this notion of Western Civilization's belief by stating the European view does not share ours.
· Does not involve minors, public conduct or prostitution, and is common to those in the gay community.
· Does not necessitate any change in legal relations (marriage).
· Dissent
· We were right in Bowers and we are right now.
· Not as careful in the writing and reasoning
· Scalia's claim that other sexual crimes will not exist (slippery slope) seems not to have happened.
· In terms of writing opinions, categorization makes a difference. Justices do overwrite their opinions.
· Issue: Is it appropriate for the state via criminal law to police the private sexual activities of it's people?
· Holding: No, The due process clause of the 14th amendment prohibits this kind of interference in the private lives of citizens.
· Reasoning: These were consenting adults. The MPC was very clear that it did not support such prohibitions because it undercut the authority of law, these sodomy statutes regulate behavior that harms no one, and historically such laws were arbitrarily enforced. The trend in other nations is to respect such activity.
· Rules: The law must tread lightly when considering what morals to enforce so as not to overstep it's constitutional bounds.
