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Criminal Law
University of Dayton School of Law
Shaw, Lori E.

Lori Shaw – Criminal Law – Fall 2010
1.       Punishment
a.       Will reject legislative intent only if there is the CLEAREST PROOF that the statute is so punitive to negate the state’s intention to deem it civil
2.       5 types of punishment:
a.       Retribution – seeks to punish a criminal simply because she deserves it.  Often referred to as the “just deserts” theory (Kant) or “eye for an eye” and demands an “equality” or “sameness in kind” between the crime and the punishment.  Looks to the past at criminal’s past acts, mental state and harm done to assess his just deserts.  Concerned with criminal’s blameworthiness and not to advance society’s collective welfare.  No excuses – you took a life, you give a life.
                                                               i.      CONS: It is possible for a person to deserve treatment which would violate his rights and which no one has the moral right to inflict (e.g., law student who cuts classes, doesn’t do reading but aces exam deserves at poor grade, but professor cannot do this)
                                                             ii.      CONS: Retributivists claim that this theory is superior to deterrence because it doesn’t “use” people as an example.  But what about the innocents in the system who are convicted and punished?  Aren’t they themselves used to sustain the system of retribution as a whole?
                                                            iii.      CONS: How do we know what a criminal deserves – both to the quantity and degree of punishment?
b.      Deterrence – notion of reducing future crime through fear of punishment.  General deterrence aims at frightening potential criminals other than the person punished.  Becomes an object lesson for those following in the criminal’s footsteps.  Operates on potential offenders as soon as it is publicly imposed; operates on criminal after their release from prison.
                                                               i.      CONS: Today’s crime-prone boys are too present-oriented and self-regarding for deterrence to work – “You never think about doing 30 when you don’t expect to live to 30”
                                                             ii.      CONS: Prison can be seen as a good “career move” for those in gangs. 
                                                            iii.      CONS: Things gained are present rewards for criminal behavior; rewards outweigh consequences: money, drugs, status, sex
                                                           iv.      CONS: Prison isn’t so bad – food and shelter and clothing there
c.       Incapacitation – Seeks to reduce future crime, but differs from deterrence in that it aims to physically deprive the criminal of the ability or opportunity to commit crime and tries to influence the criminal’s choices.  Once a criminal is released from prison/incapacitation and has the opportunity to offend again, its deterrent effect begins.  Takes two forms: collective (all persons of a designated offense get same punishment) or selective (individualized sentences based on prediction that particular offenders will commit serious offense again).  Gives society 4 benefits: punishes offenders and expresses society’s moral disapproval, teaches felons and would-be felons a lesson that do crime, do time, prisoners get treatment and education and if they’re in prison they cannot commit a crime.  
                                                               i.      CONS: Requires prediction about likelihood of the offender committing another crime.  How can all be accurate?  Each mistaken one punishes someone without need and at great cost to person punished.
                                                             ii.      CONS: Blaming someone for something that they have not yet and may never do
                                                            iii.      CONS: Open-ended.  If they present a risk of future crime, why not lock them up indefinitely?  How do you decide where to end it.
d.      Rehabilitation – seeks to reduce future crime by changing the criminal so that he no longer desires to commit a crime.  Is successful, criminal no longer needs to be deterred or incapacitated.  Cares about “why” you did the crime.
e.      Denunciation – To express publicly society’s disapproval of blameworthy conduct.  Concern for criminal’s blameworthiness but also has utilitarian dimension (which is conduct directed toward creating greatest happiness for greatest number of people).  Seeks through condemnation of criminal to educate society about/reinforce the norms reflected in common law. Examples are Scarlett Letter, stocks and pillors, yellow DUI plages
                                                               i.      CONS: Shaming someone with a drinking problem can cause them to drink more
                                                             ii.      CONS: Only works if offender is tight-knit with community. 
b.      3 was to interpret statutes
1.       Intentionalism – Look at legislative history and determine what the legislature meant.  Thinks that to follow the letter of the law would sometimes do more harm than good.  Looks to follow the spirit of the law.  Rule of Lenity – will only use to narrow criminal law but never broaden it; construed as favorably for the defendant as its language and the circumstances of its application may reasonably permit.Would look at:
a.       Title and text of statute.  If it’s clear, then text of statute governs.
b.      Look at common law
c.       Words of general meaning
d.      Legislative history
e.      Circumstances surrounding enactment (e.g., whether statute came from common law)
2.       Textualism (Scalia) – It is the law that governs, not the intent of the lawgiver.  Looks at a dictionary from when the statute was enacted to determine meaning. 
a.       Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former.
b.       The text is the law and it is the text that must be observed.  A text should not be construed strictly or leniently, but reasonably to contain all that it fairly means.
c.       Threat of interpretation is that you leave it open that judges will pursue their own objectives and desires.
d.      Dangerous to use legislative history because:
                                                                           i.      Provides too broad a playing field.  Can be ignored if the judge doesn’t like it, or called upon if he does like it.
                                                                         ii.      Legislative history is extensive and there is something for everyone
                                                                        iii.      Makes report language and floor speeches the “law” even though they receive neither a majority vote nor a presid

nt – someone puts in purse for you), OR
3.       Was aware of his control thereof, AND
4.       Sufficient period to have been able to terminate his possession
                                                             ii.      More info
1.       Receiving = possession – Bodily movement is not necessary for possession.  Ex – someone steals something and puts it in a direct deposit box to which you hold the key.  You didn’t do anything but you are still in possession. 
2.       Dangerous Instrumentality – ex. – house or car can be taken by government because used for selling drugs.  Why?  Taking it prevents it from continuing to happen.
3.       Innocent Owner – you own property and were unaware it was being used illegally.
4.       If statute prohibits “possession of a controlled substance” and you possess Vicodin, which is a controlled substance, the prosecution need not prove that you knew it was a controlled substance but only that you knew it was VIcodin
                                                            iii.      Sole possession – one person has it (in his hand/on his person/within reach)
                                                           iv.      Joint possession – more than one person possessing the same item (e.g., I forgot my highlighters can I use one of yours?)
                                                             v.      Actual possession – physical possession (on my person, in their clothing or within physical custody)
                                                           vi.      Constructive possession – when actual possession is lacking but the person nonetheless exercises some sort of control over an item (e.g., stuff in your apartment.  Lock on door so you maintain control over it)
f.        Was there vicarious liability?  Punishing one person based on conduct of another
                                                               i.      Don’t use in felonies.  Only in misdemeanors
                                                             ii.      Typically involved where public health and safety is a concern.  E.g., alcohol to minors, pesticides
                                                            iii.      Usually employer/employee responsibility (People v. Jackson – statute prevents inexperienced people from distributing dangerous chemicals so the company was vicariously liable for the employee’s act; State v. Guminga – waitress served alcohol to a minor in violation of a statute and restaurant owner held vicariously liable per statute, even though he was not aware of waitress’ action).
                                                           iv.      Not showing a party’s negligence.  Saying that, in this case, the person is responsible for the actions of another.