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

Dean Shaw – Criminal Law- Spring 2012
Criminal Law Outline
1.       Identify all Non-Mental elements, conduct, attendant circumstance & breach
2.      Identify the mental state of all non-mental elements
3.      Interpret using policy arguments
4.      Interpret using textual, dynamic and intentionalist approach
5.      Identify cause
6.      Identify result
Conduct was xx and mental state required xxx
Attendant Circumstance xx and mental state required xxx
Results xxx and mental state required xxx
I. To determine if a statute is criminal or civil
The stated/manifest legislative Intent: what the legislature says express and implied, language in the statute & location of statute i.e. is it in criminal section of code.  The history of the statute.  Note this test is NOT dispositive.
Court will reject the legislature’s manifest intent ONLY if there is the clearest proof that the statute is so punitive in purpose or effect as to negate the state’s intention.  Burden of proof on the Plaintiff.   Factors considered are:
1.       Is the purpose historically regarded as punishment?
2.      Does it promote the traditional aims of punishment aims i.e. retribution and deterrence?
3.      Is it an affirmative disability or restraint?
4.      Does it have a rational connection to a non-punitive purpose?
5.      Is it excessive with respect to a non-punitive purpose?
II. Purposes of Punishment
1.      Deterrence (Forward Looking Utilitarian)
{Mental Restrain}-reducing crime through the fear of punishment. Makes you mentally stop and think.
a.      Specific or special deterrence-specific to the person who commits the crime
b.      General deterrence-not specific to the criminal.  Intended to deter other potential criminals from committing crimes.  Moral argument against “its not fair to use one person against the other.” Moral argument for “it is fair punishment you made the decision & society needs protection.”
2.     Incapacitation (Backwards & Forward) {Physical Restrain or loss of privileges not always jail, breath test, sterilization}
Based on likelihood to repeat the crime.  Deprive the criminal opportunity to commit a crime. Specific as it focuses on the individual.  Morally justified since criminal made the choice & it also protects society.
a.      Gov’t can civilly commit mentally ill -does not further retribution or deterrence.
b.      Collective incapacitation punishes all persons convicted of a crime with the same sentence e.g. 5 yrs. for robbery.
c.       Selective incapacitation involves individualized sentences based on predictions that particular offenders would commit serious offenses at a high rate if not incarcerated.  Moral arguments say this is not fair we can’t completely predict what people will do and punishment should be equal.
3.     Rehabilitation- (forward looking)
Change criminal so he won’t want to commit crime.  It’s a benefit to society and is more practical & cheaper to treat than incarcerate. Reducing recidivism is good. Others believe that some people just don’t change and society should not have to pay for other peoples mistake, this is not fair.  Drug problem no excuse to commit a crime without punishment. This is a wax and wane initiative.
4.     Retribution- (backward looking)
Punish because criminal deserves it “just deserts” supported by Immanuel Kant as “sameness of kind.” Does not matter who you are.  Looks to the past.  Punishment has boundaries it should be equal to the crime eye for an eye i.e. limiting factor.  Morally justified b/c you are choosing your own fate.
5.     Denunciation- (forward & backward)
Uses shame to show society’s disapproval e.g. DUI license plates.  This looks backwards at the crime but forward to deter you specifically and generally from doing it again and a bit of incapacitation.  This only works when society agrees as to the use of the punishment.  This is also good as a method when nothing else works.
HYPO: Two people steal food one for hunger in a snowstorm and the other for sorority hazing.  Ge

ity as many statutes are not clear and do not reflect major political controversy.
2.      Nothing prohibits congress from delegating to their staff so there is no reason why their notes can’t be relied on.
3.      Should we now also abandon dictionary, customs and other legislative history? This will not lead to better law.
4.      The problem with legislative history is the abuse not it’s use.  Care not drastic change is all that is warranted.
IV. Conduct “Actus Reus”
Actus Reus: An Act of bodily movement, an omission to act, or possession.
* Prosecution has to prove all elements beyond a reasonable doubt*
Bodily Movement (speech included)
1.       Refers to the act
2.      Does not involve thought needs action
3.      Is set out in criminal statute
4.      Must be voluntary
5.      Bodily movement (speech included)
6.      Status (not allowed to punish for status e.g. being a drug addict but can punish if you are found using or possessing drugs) Robinson v. California: didn’t allow punishment for status contrast to Powell v. Texas liable for drinking publicly.
·         Deal with attendant circumstances separately if both are requirements e.g. stolen and artifacts are separate circumstances.   
·         If statute ambiguous use your state’s requirement or if following the MPC then all elements of mental state as required should be applied.
Torts is different from Criminal Law b/c torts has only 1 mental state to establish.  Criminal law requires you establish each one of the non-mental state elements.