Outlining: use cases as examples for principles/concepts, headings; use cases for examples within analysis, keep complexity and nuance in your answer, don’t over simplify to come up with easy answers
· Traditional v. MPCà differences should be recognized and fleshed out in subheadings
· Exam: 2 questionsà likely a policy question, and an analysis question
o Criminal liability of particular individuals in a fact pattern
o Policy from point of view of someone who is working as a leg. Aid
o Don’t worry about other states; laws except CA
o Trends in the law, areas where there are different doctrines in different jurisdictions, uniform v. disparate
o Where there are disputes and how they affect the analysis
o Open-book, hand-outs, bring in outlines and class notes
· the architecture of the criminal justice system: process, participants, and the role of discretion
· The start of a criminal case – police discretion – the first portal
· Charging: the prosecutor’s office
o The charging decision – prosecutor’s discretion
o The applicable law – common law vs. legislative statute; MPC
o Grand jury vs. prosecutorial charging and preliminary hearing
§ Grand jury – closed and confidential
§ Preliminary hearing – open court in front of a judge
o In the courthouse – judicial discretion
§ Arraignment, counsel, and settings
§ Plea negotiations
§ Post-trial: sentencing and probation – determinate vs. indeterminate sentencing
· What is punishment
o Civil commitments – punishment or not?
· Why punish
· Retribution – just desserts
o x was done, y is deserved. Punish the crime, not the individual
o not looking at future consequences of punishment – it is a backwards looking theory of punishment
o Proportionality – punishment should be proportionate to the crime.
o Harm retributivists
§ what is really important is how much harm was caused
o Culpability retributivists
§ more concerned with the action/intention as opposed to the result – focused more on the mental state of offender
· Deterrence – reducing crime through fear of punishment
o General deterrence
§ Frighten the general public – potential offenders
o Specific deterrence
§ Frighten the person punished from re-offending
o For deterrence to be effective, those who are the focus of the deterrence factor must be deterrable. The cost must be greater for the benefit for deterrence to work.
o Certainty of consequences vs. magnitude.
· Incapacitation – Deprives criminal of the ability to commit the crime. Cannot re-offend if they are incarcerated.
o Underlying assumption that criminal’s behavior is predictive of future behavior – likely to offend again.
§ General approach. Someone engages in a criminal act, anyone engaged in that act would get a similar sentence.
§ trying to find a subgroup of offenders that most needs a strong response in terms of incapacitation.
§ Gives a group of offenders a longer sentence than others who committed similar offense
§ Look at way in which offense was committed (violence or not); repeat offender or not.
o Beyond incarceration, another type of incapacitation would be chemical castration.
· Rehabilitation – changing the person in such a way that they no longer desire to engage in offending behavior
o One area where rehabilitative model is making a resurgence is with first-time non-violent drug offenders. Community-based drug treatment programs rather than prison.
· Denunciation – focuses on social msgs which we are sending when we declare an individual morally blameworthy
o Both from standpoint of message sent to offender and society at large, we are drawing a line in the sand as to what behavior is acceptable and what is not
o By defining what is and what is not criminal, we promote people’s understanding of social values.
· How we punish
o Types of punishment
§ Incarceration; shaming; experimental
o Implementing punishment
o Sentencing power and discretion
§ Federal sentencing guidelines
ú Advisory, rather than mandatory
o An alternative approach to punishment: restorative justice – making amends for the offense
§ responsibility of offender to make things right, both with victim and larger community
§ reintegration of offender back into community. Allows offender back into community, and allows community to help shape the offender.
· How much punishment
o Proportionality – liability must be assigned according to relative seriousness of offense
o CA Three Strikes Law—Proportional or not?
Ch. III –MAKING CRIMINAL LAW
Legislators and Judges: Doctrine of Legislative Supremacy, Judicial Interpretation
status; punish for doing as opposed to being
· Blameworthiness requires an actà retribution, culpability, not comfortable blaming people who have not done anything
o Deterrenceà must involve action from which to deter people
o Problems of proof
o Incapacitation: can think whatever you want but not carry out… don’t need to incapacitate people for simply thinking thoughts that may be out of one’s control
o Profiling: requiring an act limits inferences t what are objectively observable
AFFIRMATIVE ACT: Prosecution must show without reasonable doubt that defendant engaged in the act
· An act, must be voluntary and while actor was consciousà can’t always make a clear distinction
o Mental State must be demonstrated that is typically set forth in the statute;
o Result Crimes( as opposed to Conduct Crimes): haven’t committed crime if the result has not been achievedà someone must die for the crime to b committed
§ Causation: your action caused the death
o Attendant Circumstances: something in the situation that must be proven in order to find the defendant liable for the particular crime
§ statutory rape: attendant circumstance is age of person with whom the defendant had sex (usually under 16)
§ burglary of an occupied dwelling as opposed to an abandoned structure: was the structure an inhabited dwelling (attendant circumstance)
Voluntariness: Model Penal Code § 2.01 (1985)à American Law Institute’s attempt to reform Criminal statutes to reflect more modern values, promote more uniformity among the states, to modernize terms, etc. 50s-60s, adopted wholly or piecemeal by 2/3 of states, still influential for states that did not adopt it
· 1. A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable
· 2. The following are not voluntary acts with the meaning of this Section:
o a) a reflex or convulsion