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Criminal Law
University of Cincinnati School of Law
Moore, Janet

Criminal Law Moore – Spring 2013
Justifications of Punishment
1.      Utilitarianism: Is it worth it?
a.       Justification for Punishment: means to accomplish ends, looks forward
b.      Fundamental Principle: Maximize net of Social Good
c.       Source of authority: empirical cost-benefit analysis
                                                               i.      Value of pain or pleasure
1.      Intensity, duration, certainty or uncertainty, propinquity or remoteness
                                                             ii.      Punishment is in itself bad, so it must be weighed to see if it is appropriate. Punishment ought not be inflicted when:
1.      It is groundless, inefficacious, unprofitable, needless
                                                           iii.      However, without uniform enforcement, a punishment may be uncertain, and fail to deter
d.      Beneficial consequence of punishments:
                                                               i.      General deterrence
1.      People know they will be punished for criminal activity to they are deterred from committing them. The punishment of one can deter others.
                                                             ii.      Individual deterrence
1.      Deter repeat offenses from an individual. May have more severe punishments for repeat offenders
                                                           iii.      Incapacitation
1.      Imprisoned people are removed from the public where they cannot commit more crimes
                                                           iv.      Reform
1.      Punishment may help reform people so they do not engage in it again.
2.      Retributive: Is it right?
a.       Justification for punishment: perpetrator is culpable. They deserve it
b.      Source of authority: self-generation of governing law
c.       Fundamental Principle: proportionality “eye for an eye” punishment is justified when it is deserved, when the wrongdoer freely chooses to violate society’s rules
d.      Wrongdoer should be punished, whether or not it will result in a reduction of crime – not a means to an end
e.       Looks backward at the crime committed
1.      Offender receive punishment appropriate to the crime he has committed
a.       Very Both utilitarians and retributivists agree,  retribution)
                                                               i.      Utilitarians: punishment linked to predictions of future harm
                                                             ii.      Retribution: proportion punishment to crime already committed
b.      7 justices believe that 8th Amendment prohibits grossly disproportional punishment
2.      8th Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment be inflicted.” – Incorporated by 14th
a.       Restricts the death penalty to certain circumstances
                                                               i.      Atkins v. Virginia: You can’t kill mentally retarded adults, they do not have the mental capacity for that conviction
                                                             ii.      Coker v. Georgia: death sentence for rape is grossly disproportionate and excessive punishment for the crime and is therefore forbidden by 8th Amendment because it does not include death/serious injury of another and only temporarily impedes on one’s life (Cruel) and no other states killed for rape (Unusual). NEED BOTH
                                                           iii.      Kennedy v. LA: death is also disproportionate in child rape cases, should not apply to instances where the victim’s life was not taken. The child’s hurt is not lessened when law permit death of the rapist. When punishment is death, both victim/family may be more likely to shield the perpetrator from discovery when the offender is in the family.
                                                           iv.      The court is driven by race/history is trying to narrow the scope of capital punishment
b.      Challenges to proportionality of punishments: Length of sentences (after Weems) and proportionality of bail and fines
                                                               i.      Weems v. US: the punishment clause “was directed, not only against punishments which inflict torture, ‘but against all punishments which by their excessive length or severity are greatly disproportioned to the offense charged.’”
                                                             ii.      Ewing v. California: The stresses DEFERENCE to the state legislatures. Three strikes rules are meant to keep repeat offenders off of the streets. P is a recidivist, therefore CA’s penal scheme instructs for a longer sentence. “Eighth Amendment … forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.”
c.       Juveniles
                                                               i.      Cannot be executed
                                                             ii.      They can’t get life without parole in non homicide cases
                                                           iii.      They can’t get mandatory life without parole in homicide
                                                           iv.      Grahams nose counting- 37 states allow life w/out parole for juveniles
3.      8th Amendment Limitations Analysis to determine disproportionality of Capital Punishment – (for non capital, same go through but deference to legislatures)
a.       Step 1
                                                               i.      Is it grossly disproportionate? (Retributive)
                                                             ii.      Is this measurable contribution to legitimate punishment goals? (Utilitarian)
                                                           iii.      Look at seriousness of the offense and the harm to victim. Is that balanced by the severity of the penalty?
b.      Step 2
                                                               i.      How many jurisdiction punish this way?
                                                             ii.      How many juries, judges punish this way?
                                                           iii.      How often are these sentences carried out?
c.       Step 3
                                                               i.      If you have gross disproportionality, it doesn’t matter if it has a legit purpose- It violates the 8th amendment
                                                             ii.      Grossly disproportionate to crime trumps legitimate punishment goals. Retributive trumps utilitarian
d.      Step 4
                                                               i.      Evolving standards of decency
                                                             ii.      In the end our own judgment will be brought to bear
Limitations on Criminal Law
1.      Reasons for limitation
a.       Criminal statutes should be understandable to reasonable law-abiding persons
b.      Criminal statutes should be crafted so that they do not delegate basic policy matters to policemen, judges, etc, for resolution on a subjective basis
c.       Trial and appellate courts need to know what the law is to apply it fairly and consistently
2.      Principle of Legality – Judiciary
a.       “no crime without law, no punishment without law”
b.      A person may not be convicted/punished unless his conduct is defined as criminal
3.      Ex Post Facto – Legislatures
a.       U.S. Const. Art. I §9 No

ind – must be willed by actor
2.      Involuntary acts are when the actor has no conscious control
                                                           iv.      “Voluntary act” is an element of every criminal offense
1.      Exceptions:
a.       Crimes of possession
                                                             v.      Martin v. State: D can't be convicted under the statue because he was forced to get out of his house by the police officers so his presence while drunk on the public highway was involuntary.
                                                           vi.      Rule of Law. An “act” committed during unconsciousness is not voluntary, and therefore one cannot be held criminally culpable for said act. However, voluntarily induced unconsciousness, such as by drugs or alcohol, is not a complete defense.
b.      MPC:
                                                               i.      Provides that no person may be convicted of a crime in the absence of conduct that “includes a voluntary act or the omission to perform an act of which he is physically capable”
                                                             ii.      §  2.01(2): the following are not voluntary acts within the meaning of the section:
1.      (a): a reflex or convulsion;
2.      (b): a bodily movement during unconsciousness or sleep;
3.      (c): conduct during hypnosis or resulting from hypnotic suggestion;
4.      (d): a bodily movement that otherwise is not a product of the effort or determination of the action, either conscious or habitual
c.       Omissions:
                                                               i.      Subject to a few exceptions, a person has no criminal legal duty to act to prevent harm to another, even if the imperiled may die in the absence of assistance
                                                             ii.      Exceptions (i.e. you must act):
1.      Status relationship (parents to kids, spouses, masters to servants)
2.      Contractual obligation (medical care; lifeguard)
3.      Omissions following an act
4.      Creation of a risk (i.e. negligence followed by omission)
5.      Voluntary assumption of the care of another (duty to continue to provide aid)
6.      Duty of a landowner
7.      Statutory duty
a.       Person to pay taxes, stop for accident, parents to provide food to kids
b.      Bad Samaritan laws make it an offense for a person not to come to aid of a stranger in peril under certain cases
                                                           iii.      Act/omission distinction is based on the premise that the law should prevent people from actively causing harm, but that it should not compel persons to benefit others
1.      Omissions are more ambiguous than acts. It is harder to determine the motives of a non-actor.
2.      It is difficult to draw a line between when you have a duty and when you don’t
3.      Well meaning bystanders often make matters worse by intervening in ongoing events
4.      Issues of personal freedom and liberty