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

Criminal Law Outline
Dean Lori Shaw
“Criminal Law: A Contemporary Approach” Bloch & McMunigal
Hyperlinked Table of Contents
I. Punishment
II. Making Criminal Law
III. Conduct
IV. Mental States
V. Homicide
VI. Causation
VII. Justifications and Excuses
VIII. Attempt and Solicitation
IX. Complicity
X. Conspiracy
I.                  Punishment
A.            Introduction – Criminal Law vs. Civil Law
1.                  Criminal Law – Punishment is different. Life & Liberty is at stake. The crimes are against the state (society’s harmed). 
B.             What Is Punishment?
1.                  Kansas v. Hendricks – (KS law hospitalizing sex offenders) Double Jeopardy and Ex Post Facto clauses of the constitution only apply if it’s “punishment.” A statute is civil or criminal according to the legislature’s intent. Finding of scienter required for criminal law.
C.            Why Punish?
1.                  Retribution – An eye for an eye & “just desserts.” There’s a notion of proportionality. You can’t punish beyond the harm caused by the crime.
2.                  Deterrence – It looks to the future. The fear of punishment deters crime.
(i)                Specific Deterrence – Deters an individual from doing something bad again.
(ii)             General Deterrence – Deters others who see the first person punished – using them as an example.
3.                  Incapacitation – Taking away someone’s ability to do something bad in the future. The principal justification for imprisonment in U.S. today.
(i)                Collective strategies – all persons would receive the same sentence for the same crimes
(ii)             Selective strategies – sentences would be individualized based on predictions about who would be most likely to commit crimes again.
4.                  Rehabilitation – Change person so they don’t do crimes again. Rehabilitation has been out of fashion for the past few decades.
5.                  Denunciation – Criminals should be shamed. Lends to social cohesion & criminals are showed up as violators of societal rules & norms.
D.           How We Punish
1.                  Types of Punishment – Imprisonment, Fines & Restitution, Death Penalty, Probation, Parole
2.                  Implementing Punishment – Distribution of punishment demographically – minorities punished more than others. 
3.                  Sentencing Power and Discretion – Federal sentencing guidelines – formulas used for sentencing. Began as “mandatory minimum sentences.” Are meant to deal with the flaw of indeterminate sentences – same crimes get different sentences. Judges discretion became limited to months rather than years.
4.                  An Alternative Approach to Punishment: Restorative Justice – Restorative justice is “a process of bringing together the individuals who have been affected by an offense and having them agree on how to repair the harm caused by the crime.” The purpose is to restore the victims, offenders and community. It gives the victim a role in the punishment. Has the potential for disparate punishments.
II.              Making Criminal Law – Legislature makes law, Executive enforces law, Judiciary applies the law.
A.            Legislators and Judges – Common Law judges can make criminal law. In the U.S. today, the legislatures have the ultimate authority to make and define criminal offenses. The term “legality” is used to express the preference for legislatively defined crime and for clear and advance definition of crimes. Many states have done away with common law, & most now only recognize statutory crimes, with a few others using common law crimes as a supplement.
Keeler v. Superior Court – (Man killed unborn child) CA S.C. refused to say killing of unborn fetus was “murder.” Only the legislature should be able to create new crimes.
Rule of Lenity – To construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit. As in the case of a question of fact, the defendant is entitled to the benefit of the doubt as to the interpretation of words in a statute. Legislatures vary in their attitudes to the rule of lenity.
1.                  Common Law Versus Statute
(i)                Legitimacy – It’s a concern that the judicial branch is undemocratic. The legislative process is more open to public scrutiny & to democratic influence. Legislatures are accountable to the people.
(ii)             Accessibility and Comprehensibility – Statutory law is more accessible than case law & perhaps more understandable too, but that’s arguable.
(iii)           Prospective versus Retrospective Operation – Ex post facto makes retrospective crimes unconstitutional. Statutory crimes only are prospective, but that makes them less flexible too. Common law can adapt to new situations. Statutes can be ambiguous too.
(iv)           Balancing the Particular and the General – Common law judges have a tension between the cases before them at the moment, and future cases their judgments will effect. Statutory law doesn’t have this tension, but legislatures are pressured by public opinion and high profile cases. Both situations can lead to injustice.
(v)             Keeping Criminal Law Current – Judges must wait for cases to come to them. Legislatures can act at any time. Stare Decisis can block judicial law reform. Lack of time, lack of consensus, and weak governments can create practical problems for legislatures in judicial reform.
(vi)           Institutional Competence – The legislative process involves a lot of deliberation & input from outside groups. Hearings can be held, experts can be summoned, committees have professional staff who can collect data and study an issue. Legislatures often fail to use these tools though, and they often don’t know the details of what they’re voting on.
B.             Statutory Interpretation – Judges interpret statutes, often controversially.
1.                  Intentionalism – Spirit of the law. 
Church of the Holy Trinity v. United States – (Church hires English reverend) The court uses intentionalism (and ignores Textualism) to interpret a federal statute that keeps out foreign workers. How Intentionalism works:
(i)                First looks at the Title o

ere the failure to act may constitute a breach of a legal duty: 1) Where a statute imposes a duty to care for another. 2) Where one stands in a certain status relationship to another. 3) Where one has assumed a contractual duty to care for another. 4) Where one has voluntarily assumed the care of another AND so secluded the helpless person so as to prevent others from rendering aid.
MPC Penal Code § 2.01 (3) – Liability for the commission of an offense may not be based on an omission unaccompanied by actions unless: (a) the omission is expressly made sufficient by law defining the offense; or (b) a duty to perform the omitted act is otherwise imposed by law.
1.                  Distinguishing Act from Omission – Sometimes it’s difficult to distinguish between act and omission and the line is not clear. Showing the existence of a duty can be hard, and there is more to prove for a crime of omission rather than for an act.
2.                  Duty to Report or Rescue – “Good Samaritan” laws requiring reporting or actual rescue if crimes in progress are witnessed. Good Samaritan laws are counterproductive in regards to The Delayed Samaritan and The Passive Samaritan.
(i)                The Good Samaritan – Helps by calling police, or even physically helping.
(ii)             The Hopelessly Bad Samaritan – Refuses to help and no legal threat or conscience will make him act.
(iii)           The Legally Swayable Samaritan – Would be Bad with no duty-to-report, but could be Good faced with legal coercive force.
(iv)           The Delayed Samaritan – Initially does nothing, but later wants to report.
(v)             The Passive Samaritan – Never reports, but when police come to ask they tell what they saw.
H.           Possession – Can count as conduct. Actual vs. Constructive
Actual Possession – Something is on someone’s person. Real.
Constructive Possession – Dominion or control over the item. Mere proximity is not enough. Fictive.
MPC § 2.01 (4) “Possession is an act…if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.”
1.                  Sole Actual Possession – One person with actual physical control.
2.                  Joint Actual Possession – Two or more people with actual physical control.
3.                  Sole Constructive Possession – One person with dominion.
4.                  Joint Constructive Possession – Two or more people with dominion.