Criminal Law Outline

 
Weithorn_CrimLaw_Spring_2010
 
 
 
 
Table of Contents
 
 
Criminal Law Introduction                                                                                                              3
 
 
Theories of Punishment                                                                                                                   4
 
 
Constitutional Considerations                                                                                                        7
 
 
Conduct                                                                                                                                          10
 
 
Mental States                                                                                                                                19
 
 
Homicide                                                                                                                                        27
 
 
Justifications, Excuses & Defenses                                                                                                38
 
 
Rape                                                                                                                                                51
 
 
Attempt Liability                                                                                                                           59
 
 
 
 
 
 
 
 
 
Criminal Law – Introduction
 
Various actors within the criminal justice system have substantial discretionary power (arrest, prosecution, sentencing)
 
Federal Sentencing Guidelines reduce Judges Discretion
Congress dramatically reshaped federal sentencing practices in the 1980s by creating the Federal Sentencing Guidelines, which are representative of a trend in many states.
 
US v. Booker 2005 – Struck down mandatory federal sentencing guidelines for violation of 6th amendment rights of trial by jury, since judge, rather than a jury, decided factual questions for sentencing, but allowed them to be used in an advisory role only
 
Civil vs. Criminal Wrong –
Criminal law sanctions behavior
Civil wrong prices behavior
 
Policy Arguments – Talking Points
Finnie – Accused Prostitutes Want Brothel’s Privileged Exposed – Protecting the Privileged
If police protection is a privilege enjoyed by San Francisco brothel patrons, lawyers for three women facing solicitation charges in a prostitution case aim to change the practice.
Tonry – Malign Neglect – Race, Crime, and Punishment in America
Disproportionate black criminality is the product of social and economic disadvantage, much of it traceable to racial bias and discrimination, more overt in earlier times than today.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Theories of Punishment
 
Retributive – Backward orientated
Premise – Humans generally posses free will and may justly be blamed when they violate society’s mores
Harm Retributivist – Punishment should only be measured in how much actual harm one creates
Culpability Retributivist – Punishment should be measured in how blameworthy your state of mind is
Proportionality – In order for retribution to work, the punishment must fit the crime proportionally to other crimes of lesser or greater degree
Final Report of the Illinois Criminal Code Rewrite and Reform Commission, Final Report
For a system of criminal justice to be fair, liability must be assigned according to the relative seriousness of the offense committed. It is critical that a criminal code’s system of grading offenses recognize all, and only, suitable distinctions among the relative severity of offenses and develop a scheme to grade each offense proportionally to its gravity in light of those distinctions.
 
Utilitarian – Forward orientated
Premise – People are generally self-indulgent and rational characters
(1) Deterrence
(1) Specific – Instill fear into the criminal
(2) General – Instill fear into society
Bentham – Deterrence works on the pain/pleasure principle (cost/benefit analysis)
Criticism – Deterrence does not work if the criminal does not think rationally
(2) Incapacitation
(1) Collective – all persons convicted of a designated offense are viewed as requiring a pre-determinate amount of incapacitation. Remove them from society and preventing them from causing additional harm.
(2) Specific/Selective – Individualized incapacitation based on predictions that particular offenders will repeat offenses (three-strikes-law)
Criticism – Incapacitation is biased against marginalized groups, measuring employment history and education as a tool for determining likelihood of recidivism. It rests on the assumption that certain criminals are likely to re-offend.
 
 
 
 
 
(3) Rehabilitation
Defined – Rehabilitation seeks to change the criminal so that he no longer desires to commit crime, not simply make him scared to commit crime (deterrence)
Criticism – Very difficult to implement. Degree of reprehensibility does not coincide with ability to be rehabilitated
Example – California Prop 36 – Mandatory Rehab for first time non-violent drug offenders. Study showed saved $1.5 Billion.
(4) Denunciation
Defined – Denunciation tries to shape and define social values by educating the public on what acceptable. Its goal is to maintain social cohesion
Criticism – Certain groups who have different social values (gang members) will not feel the effects of denunciation
(6) Restorative Justice
Defined – The goals are to restore the victim by making them whole and restore the offender back into the community
 
Policy Arguments – Talking Points
 
Dolinko – Three Mistakes of Retributivism
 The inevitability of mistaken convictions mean that some will be pun