Criminal Law Outline
Professor Bloch
Spring 2008
CRIMINAL LAW SYSTEM
I. Purposes and Functions of Criminal Law
A. Lowest common denominator
B. Protect individuals
C. Preservation of basic rights and liberties
D. Restriction someone’s ability to infringe on others’ rights, restrict non-law abiding conduct
E. Personal autonomy respected
F. Socialization process by articulating what conduct is condemned (deterrence is one component of teaching people what is accepted)
G. Social impact of criminal law (can create social order)
H. Makes us feel better, that there is a sense of justice (retribution)
II. Civil v. Criminal (Main difference: moral blameworthiness
A. Criminal law is concerned with redress to individuals and society
B. Criminal law is about what is socially permissible?
C. Criminal law has a greater role of intent, greater burden of proof (evidentiary certainty), requires more public enforcement, deliberately attempts to inflict punishment
III. Principles
A. Constitutional Principles: Due Process and Fair Warning (5th & 14th Amend)
1. Ex Post Facto: Legislatures are forbidden from criminalizing acts that were innocent when does, or for increasing the severity of the punishment.
2. Principle of Legality: Criminal law must explicitly be stated in a statute (forbids judicial law creation, ensures fair warning)
3. Void for Vaguness/Specificity: Cts can strike down statutes for being unconstitutionally vague, ensures fair warning
4. Rule of Lenity: If there is ambiguity in the law, should be interpreted in a way that favors the Δ. (See Keeler) (Note: MPC does not adopt this rule.)
B. Civil Commitment: Due process only protect those who have committed a crime. A person can be committed without having committed a crime. Charged in civil ct as being inherently dangerous to themselves or others.
MAKING CRIMINAL LAW
I. Judges and Legislatures
A. Common Law (judge made law)
1. Offers flexibility and can stretch (like bubblegum) to fill a need “if it amounts to real injury” (See Khaliq)
2. Judges are primarily concerned with adjudicating particular cases and producing law only as necessary to resolve those cases
3. Khaliq v. Her Majesty’s Advocate: Selling glue as an inhalant to children was not a defined crime in Scotland. Creating common law to make this a crime is OK b/c this is an old crime being committed in a new way. Common can stretch to fill needs/ gaps.
4. Pro:
(a) Can fill in holes
(b) Interprets ambiguous statutes
5. Con:
(c) Retrospective
(d) Inconsistent use of terminology in Common Law
B. Statutory Law (legislators)
1. Made primarily by legislature
2. Most criminal law today has a statutory basis
3. Pro:
(a) More democratic legitimacy
(b) Statutes are easier to find and more comprehensible (if they are adequately drafted)
(c) Prospective (can grow, also can be retrospective – see CA three strikes law)
(d) Keeps the law current
(e) Higher institutional competence (greater resources)
4. Con:
(a) Does not factor in view of the minority
(b) Statutes can be difficult to find and hard to understand if poorly drafted
(c) Sometimes takes too long to come up with the law
C. Executive Implementation
1. Exercise of discretion by executive officials in implementing and enforcing the law
D. Principle of Legality
1. Only the legislature can make criminal statutes (subject to the 7th Amend. Proscription on cruel and unusual punishment)
(a) Keeler: Δ knew victim was pregnant and purposely hit her causing her to lose the baby. From the rule of legality, we do not punish crimes that are not previously in the statutes.
(b) Policy considerations:
(1) Do not want to grant prosecutors too much power
(2) Must be careful b/c of implications for abortion
2. Supports Ex Post Facto reasoning: If the conduct was not criminally prohibited at the time the actor engaged in the conduct, then the principle of legality prevents punishment.
3. Protection of our constitutional rights
(a) Notice
(b) Due Process
E. Rule of Lenity: Strict construction of criminal statutes as favorably to the Δ as the language and the circumstances reasonably permit (Keeler)
II. Statutory Interpretation
A. Legislative Intent
1. First, Look to the statutory language
2. Second, Look to statutory history do determine intent
(a) Note: Usually statute must have some ambiguity to turn to history, although not always
3. Church of the Holy Trinity: U.S. church contracted with a pastor in England to work in the U.S. church. Violated federal law preventing U.S. employers from contracting with foreign “laborers” for U.S. employment. Holding à the term “laborer” in the federal statute applied only to cheap unskilled labor, not to professional occupations such as ministers and pastors.
(a) Underlying xenophobia: Do not want unsavory characters and do not want them to take jobs from U.S. citizens.
4. Con: Legislative intent can cover for judge’s intent.
B. Textualism
1. Plain Meaning: “The text is the law, and it is the text that must be observed…A text should be construed reasonably, to contain all that it fairly means.” (J Scalia)
2. Rationale:
(a) Intentionalism is bad because the judge can do whatever they want. Legislature does not have intent if they don’t know it’s an issue, and intent can deviate from statutes
(b) More efficient: don’t have to argue about intent
3. Resolving Ambiguity: Look at laws on the same subject and the public history of the time the law was passed (do not leg. intent)
C. Dynamic Statutory Interpretation
1. Permits consideration of text, historical backgrounds, subsequent interpretation, related developments, current societal facts.
(c) More integrated approach to studying factor (text, historical background, related developments, current societal facts, etc.) in determining what the statute means.
(d) Dynamic read the most current statute. (Intentionalists fixated at the time when the law was drafted. Modified Intentionalists interpreted based on the purpose of the statute)
2. Law is flexible and should reflect current societal values
PUNISHMENT
I. What is Punishment?
A. Kansas v. Hendricks: Δ cannot stop committing pedophilia and stated that “the only sure way to keep him from sexually abusing children in the future was ‘to die….’” New civil commitment in the probate code is not punishment because (1) Not retributive (does not affix culpability), (2) Not a deterrent (people with such a mental abnormality would not be deterred), (3) Legislature choose to write this provision in the probate code. Court has a narrow view of punishment.
B. United States v. Bergman: Δ has many character witnesses,
cause of higher penalties for crack cocaine offenses
(b) Racial profiling
2. Solution: More individualized, tailored sentencing with less punitive, more rehabilitative and corrective programs; Need more honesty in dealing with politicians (Tonry)
C. Sentencing Power and Discretion (for more uniformity)
1. US Sentencing Commission established sentencing guidelines that used to be mandatory, but now are only advisory
(a) Guidelines were based on sentences that judges were handing out
(b) Congress abolished parole, but sentences could be reduced by up to 15% for good behavior
(c) Guidelines eliminate the executive power exercised by the Parole Commission, reduce judicial power, and consolidate power in the Sentencing Commission and in prosecutors
(d) Pro: consistency
(e) Con: Not individualized and does not take differing circumstances into account
D. Restorative Justice (Brings Victim into the Process)
1. Alternative approach focuses on accountability of the offender for the crime and for repairing the harm caused by the crime
(a) Usually works to involve the victim and the offender directly in addressing the consequences of the crime (usually through a mediation process between offender and victim/victim’s family). In this way, victims often play a substantial role in determining the scope of the reparations for the crime.
(b) Goal to bring the victim into the process and reduce recidivism by hopefully triggering empathy in the offender
(c) Relatively new: Used for less serious offenses and for juvenile cases
(d) Theories of punishment: rehabilitation and deterrence
2. Advantages
(a) May empower the victim to participate in identifying and requiring the type, scope, and extent of reparations
(b) The direct involvement with the victim and the consequences of the offender’s conduct may work to reduce recidivism for offenders.
(c) Might be more cost-effective and result in higher satisfaction and less alienation of the harmed party.
3. Disadvantages
(a) Has potential to produce disparate consequences for offenders whose criminal conduct was substantially similar
(b) Extent of harm in a particular case may be disproportionate to the blameworthiness of the offender
(c) Might be frightening to harmed party; Party may be reluctant to express extent of emotional harm
(d) Might increase vulnerability of harmed party
(e) Might provide offender a false sense of minimal consequences
VI. How Much Punishment? (Sentencing)
A. Principle of Proportionality
1. Retributive purpose: Punishment in proportion to blameworthiness
2. Deterrence/Utilitarian purpose: Excess punishment has no utility and is a waste of resources
