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Criminal Law
UMKC School of Law
Berger, Mark

Criminal Law Course Outline

Criminal Law

Fall 2017


Criminal law is a statutory system that is enforced mostly at the state and local levels. Differs by jurisdiction.

Model Penal Code (MPC) took almost 20 years to complete. Discussed in casebook (pg. 1092).

This is a model for jurisdictions to look at, consider, and adopt in one form or another.
Most, if not all, jurisdictions have revised their criminal laws under the umbrella of suggestions from the MPC.
Not legally binding like the Universal Commercial Code (UCC)
Introduced during Nixon administration (mid 1960s)
NO single penal code for the federal system. Even though this is secondary influence, it is still considered by a large number of federal judges

Justification for Punishment and What to Punish


Two types of sentences usually used

Presumptive sentencing system.

Presiding judges were given the ability to increase or decrease the severity of punishment based on the heinousness of the crime committed.
Factors that could decrease the sentence

testimony to character, or
other evidence that speaks to the defendant’s morality.

Sentencing guideline system of the federal government.

This introduces sentence terms that judges are bound to obey (mandatory minimum sentences, etc.).
Sentencing grid used to be a binding authority on judges, now it is not.
Any increase of sentence must be approved by a jury beyond a reasonable doubt.
If you hurt someone and the appropriate requirements are met, you can be punished.

US v Madoff – Symbolism plays an important role in both the retribution and deterrence contexts when choosing a proper criminal sentence.


Looks backward – Seek to justify punishment based on offenders’ behavior in the past
Just desserts, morally deserving, “revenge”
punishment should fit the crime

Regina v. Dudley & Stephens, (1884): Four men are stranded on a boat at sea. They kill and eat the smallest and weakest. Two were convicted to death but the penalty was reduced to 6mo. “the broad proposition that a man may save his life by killing, if necessary, an innocent and unoffending neighbor, it certainly is not law at the present day.”

Punishment model

suggests what we do to people ought to correlate with the harm they’ve caused
also correlates with blameworthiness
dominant philosophy behind our sentencing system in most jurisdictions
Substantive due process. With respect to some things, the state has no way to prosecute for certain behavior. Notion of due process is so flexible that society has given judges almost unreasonable power in being able to decide with little justification what crimes are and are not able to be prosecuted.

System of punishment has steadily gone toward retribution in the recent decades.

Utilitarian-based purposes – looks forward – seek to justify pun. based on the good cons. in the future

Deterrence (Prevention)

general deterrence

deter the criminal behavior
assumes a rational actor, so this is controversial because many so-called “crimes of passion”, the criminal may not really weigh the cost-benefit, therefore no deterrence in action

specific deterrence

deter the criminal

State v. Chaney (Alaska 1970), an air force man was given lenient one year concurrent sentences for robbery and rape. This did not effectively serve to express society’s condemnation of the act or to in any way deter future criminals.
U.S. v. Bergman (U.S. Dist. Ct., S.D.N.Y. 1976), a wealthy, elderly philanthropist was convicted of defrauding Medicare. Rehabilitation, specific deterrence, and incapacitation were not at issue in this case, but the need to generally deter others like Bergman, to affirm that the law has teeth, and to reflect the gravity of the crime required that he spend some time in prison. He received 4 months.

usually a mixture of the consequences faced for the crime and the likelihood of the perpetrator being caught/prosecuted.
there are questions as to how long we can sentence convicts in the name of deterrence.
there is a propensity for sentences to become too lengthy if we over-prioritize deterrence.


reform criminal conduct by way of developing skills in prison to transform them into productive citizens
Difference of opinions as to importance, resources – are they capable?
viewed as a very progressive reform when it was introduced in the 1800s.
Very large limits as to what the courts can consider rehabilitation
Would electric shock therapy count as rehabilitation?
Is putting someone in jail a form of rehabilitation? What sort of facilities are made available to prisoners? It is undeniable that some people do have a moral turnaround while in prison, although a lot of people would argue that it is i

o be continued or imprisoned . . . against his will.”


Martin v. State (Ala. Ct. App. 1944) Martin was drunk at his home, where he was arrested and taken to a public highway where he became loud and profane. The court reversed his conviction for public drunkenness, stating that under the plain terms of the statute, a voluntary appearance was presupposed.
People v. Newton (Cal. Dist. Ct. App. 1970) During a traffic stop, Newton was shot in the abdomen and then he shot Officer Frey. He claimed that the shot to his abdomen rendered him unconscious and his shooting of Frey was therefore involuntary. The court held that refusing the jury instruction to the effect of involuntary action being a complete defense was prejudicial error and reversed his conviction.


General Rule: There is no liability for failure to Act UNLESS a duty is imposed by law

Pope v. State, 396 A.2d 1054 (Md. Ct. App. 1979) Pope took in a woman and her baby who had nowhere else to go. While at Pope’s home, the woman went into a violent religious frenzy resulting in fatal injuries to the baby. The court reversed Pope’s conviction of felony child abuse on the grounds that she was not responsible for the baby’s supervision while the mother was present. The court said she had a moral duty but no legal duty, and so could not be guilty of a felony.
Jones v. United States, 308 F.2d 307 (D.D.C. 1962) Jones was convicted at trial of involuntary manslaughter after his housemate’s baby died of neglect when he had the means to provide for it. The court reversed and remanded because the trial judge failed to instruct the jury to first find a legal duty to care for the child.


Statute creates a duty to act
Contractual duty to act
Actor creates the peril
Reliance – begins to acts and then (also includes when one voluntary assumes responsibility for another’ care and other is so secluded, helpless that it prevents other from aid