Select Page

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

Crim Law Outline Fall 2009—
Criminal Law Fall 2009—Dean Shaw
I.     Punishment
A. What is Punishment? 
(1) Kansas v. Hendricks (p23)
If the purpose of the statute is not retribution (place blame on prior conduct) or deterrence (to prevent others from doing the same acts) then it’s a civil statute and it is not punitive. 
Facts: The jury found Hendricks to be a sexually violent predator and committed him to the State’s custody because he has a “mental abnormality” as described by the state. They committed him because of a new law barring sexually violent predators.  
Issue:   Does the Kansas Sexually Violent Predator Act establish criminal proceedings?
Holding: No, b/c it’s not statutory, the intent of the act was to create a civil commitment to protect the public from harm, and it doesn’t implicate the two requirements of criminal punishment: retribution or deterrence. 
B. Why Punish? P. 28
Punishment is best served by terms proportionate to the seriousness of the offense
(1) US v. Bergman
Court looked at general (for public) and specific (for criminal) deterrence in determining defendant was guilty. 
Facts: Defendant committed fraud by padding claims for Medicaid to his nursing homes.   
Issue:   Why should defendant be punished for this crime? 
Holding: Defendant is guilty because general deterrence to society is needed (not specific deterrence—because he’s not dangerous), retribution is a factor, and no penalty reduces the seriousness of the crime. 
2.    Retribution
‘just’ desserts theory—one gets what he or she deserves
Eye for an eye
Can’t be greater than the crime they commit
3.    Deterrence-notion of reducing crime through fear of punishment intimidates or terror law.
Aims at frightening other offenders
Makes an examples of criminals
Has a mental focus—stop and think about it before you do it
General deterrence aims at frightning potential offenders other than the on punshed so they don’t commit crimes.
Specific deterrence- once in jail doesn’t commit crime again cause he doesn’t want to go back to jail.
4.    Incapacitation-seeks to reduce crime
Aims to deprive the criminal of the ability to commit a crime and denies offender of the choice to commit a crime
Physically keeps someone from committing a crime
Principal justification for imprisonment
5.    Rehabilitation-also seeks to reduce future crimes
Aims to change the criminal so he no longer desires to do the crime. 
Focus on the person, not the past act
6.    Denunciation-expresses publicly society’s disapproval of blame worthy conduct
Seeks through condemnation of a criminal, express society’s disapproval of the conduct. Ex: drunk driving plates, publish names in newspaper
C. How we Punish?
1.    Types of Punishment
Monetary Fines, imprisonment, shaming, executions
2.    Implementing Punishment
3.    Sentencing Power and Discretion
Trial judges typically exercise the power to punish with restraints that differ by jurisdiction
Sometimes use SENTENCING TABLE P. 71 comparing offense level to criminal history category
4.    An Alternative Approach to Punishment: Restorative Justice
Process of bringing together individuals who have been affected by an offense and having them agree on how to repair the harm caused by the crime—to restore victims, restore offenders, and restore communities
Ex: Victim offender mediation programs
II.   Chapter 3: Making Criminal Law
Today criminal liability is in statutes and judges interpret the criminal statutes
A. Legislators and Judges
Legislator—ultimate authority over the creation and definition of criminal offenses (subject only to constitutional constraints)
‘legality’—expresses a preference for clear and advance definition of crimes
(1) Khaliq v. Her Majesty’s Advocate (1983 Scotland)
When a statutory law does not exist, the common law can be used to invoke a need
Facts: Defendant sold children glue and paraphernalia for inhaling the glue
Issue:   There was no law that defined glue as bad, but there is common law that discusses that use of poisonous substances to the danger of health and life
Holding: This is a ‘new’ crime and common law can be used to invoke a need where there is no specific statute. 
(2) Keeler v. Superior Court
Court looked at legislative intent and common law at the time the statute for murder was created.
Facts: Defendant stomped out his wife’s baby and killed the baby. 
Issue:   Did the action constitute killing a human being? 
Holding: No, it was not murder because the legislature did not intend the meaning to include unborn children. 
b)    Rule of Lenity
RULE OF STRICT CONSTRUCTION OF CRIMINAL STATUTES/RULE OF LENITY: The general trend is to create a penal statute that is as favorable to the defendant as possible. Defendant is entitled to benefit of every reasonable doubt as to the true interpretation of words or construction of language used in a statute. Courts often place restrictions on the operation of the rule of lenity (i.e. middle ground approach). 
Most jurisdictions recognize only statutory crimes. Common law crimes=historic resource and reference point. 
Coding statutes reduces inconsistency and redundancy and prompts legislature to address broad questions that arise. 
2.    Common Law versus Statutes
Legislatures create statute through a political process and not applied to specific facts. 
a)    Legitimacy
                                                Legislature is elected and legislative process is open for public scrutiny and input them the                                                       judicial process people can call legislature and ask them to vote for certain issues.

re ambiguous then consider the original legislative expectations
3)      Look at the subsequent evolution of the statute and its present context
III. Chapter 4: Conduct
A. Elements of an Offense
Criminal Liability requires conduct (actus reus—action/non-mental state)
B. Why Require Conduct
Retribution—punishment requires blame and you can’t blame someone’s thoughts, so you need action
Deterrence—aims to prevent offender during the thought phase and before action phase
Incapacitation—conduct requirement protects thoughts/daydreamer, thoughts don’t threaten society
CONDUCT proves circumstantial evidence to prove what offender was thinking
C. What is an Act?
‘Act’ is a bodily movement. There are limits to the legislative ability to define an act and to allow for judicial interpretation of an ‘act’. 
D. Status
Can you punish for being rather than doing? 
Ex: status of a drug user, not actually catching them w/drugs. 
Status—involuntary acquisition of that quality and degree the individual has control over the characteristic…part of their being that is involuntary. Different from a condition
Against 8th & 14th amendments to punish for status (i.e. race, age, gender, etc.)
(1) Robinson v. California
Can’t convict someone of something beyond their control (status).   
Facts: Officers caught defendant on the street and inspected the track marks on his arms as well as discoloration, scarring, etc. He admitted to using drugs.
Issue:   Should it be an offense for a person to be addicted to narcotics?  
Holding: The act of using the drugs is crime, but not the status of being a drug addict. The court cannot punish for status—it would violate 14th amend (due process) and 8th amend (cruel and unusual punishment). Can’t convict someone of something beyond his or her control. 
(2) Powell v. Texas
Criminal penalties can only be imposed on someone who has committed an act or some type of behavior. 
Facts: Defendant is a chronic alcoholic who went out to the street after being drunk. 
Issue:   If the defendant is does it violate the 8th amend (cruel and unusual punishment) because he is a chronic alcoholic?     
Holding: Appellant was not convicted on his status, but rather his action for being drunk in public.