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Criminal Law
University of Dayton School of Law
Chaffee, Eric C.


I. Punishment
a. Reasons for Punishment
i. Deterrence: reduce crime through fear / terror of punishment to public and offender
1. Specific deterrence: aimed at stopping the individual criminal from repeating his crime
2. General deterrence: aimed at making all people stop a specific crime
3. The theory of deterrence relies on the assumption that would-be offenders are reasonably rational and respond to their perception of the costs and benefits attached to alternative courses of action
4. Some scholars contend that a large fraction of crime is committed by persons so impulsive, irrational, or abnormal that even if there were no delay, uncertainty, or ignorance attached to the consequences of criminality the majority of crime would still occur
ii. Rehabilitation: change criminal so they no longer wish to commit the crime
iii. Incapacitation: deprive criminal of ability or choice or opportunity to commit crime
iv. Deterrence, Rehabilitation and Incapacitation: all future oriented, makes punishment useful, consequentialist or utilitarian
v. Retribution: punish because criminal deserves it – “just deserts” – same in kind
1. retrospective and blameworthiness
vi. Denunciation: publicly express society’s disapproval of blameworthy conduct
b. Sentencing Power and Discretion
i. Factors in Sentencing
1. Seriousness of defendant’s present offense
2. Prior criminal history and likelihood of rehabilitation
3. Need to confine the defendants to prevent further harm
4. Circumstances of offense and extent of harm
5. Effect of sentence deterring defendant and society
6. Effect of sentence imposed on community condemnation
7. Restoration of victim to community
ii. Statutes
1. Sets only max or min for sentencing to prevent cruel and unusual punishment and to make punishment for crimes relatively proportional
2. Sets a range because of mitigating circumstances (varying facts)
3. Don’t give judges absolute discretion because they are fallible and have biases and it also maintains uniformity, equality and consistency
iii. In determining the sentencing
1. Begin with the law (ie statutes) -which will give a min or max sentence – and then move to the policy arguments
a. If judges have complied with the law, they have a wide discretion on sentencing the case within statutory guidelines
2. Retribution is very important in many courts (although that was not the case in United States v Bergman)
3. Sentence may have a variety of justifications (ie deterrence and retribution, etc)
4. Sentencing rationale = policy choice of STATE legislatures NOT federal courts
c. How much Punishment
i. Proportionality
1. ensures punishment is equivalent to blameworthiness excessive punishment is beyond what is deserved and is therefore in violation of the retributive principle and has no utility and is therefore a waste of public resources
2. Proportionality Test (illustrated in Ewing):
a. gravity of offense and harshness of penalty
b. sentences imposed on other criminals in same jurisdiction
c. sentences imposed for commission of the same crime in other jurisdictions
3. No bright line – are we surprised?
4. 8th Amendment forbids only grossly disproportionate sentences to crime rather than strict proportionality
a. 8th Amendment protects from cruel and unusual or excessive punishment
ii. Recidivism statutes
1. Purpose is for incapacitation and deterrence
a. Rationale: criminal will continue repeating the crime
2. Ie Three Strikes statutes
II. Making Criminal Law
b. Legislators and Judges
i. Today the legislature is the ultimate authority in making criminal law, subject to constitutional constraints
ii. Legislature considers public policy and constitutional arguments and then passes legislation
iii. Codification: replacement of an accumulation of criminal provisions with a comprehensive set of simultaneously enacted statutes
iv. Common Law Offenses:
1. Some states fall to common law when there is no statutory code applicable to a given crime
a. TAKE AWAY (on some states accepting usage of common law in criminal cases):
i. Fine for Florida and New Mexico to use common law because everyone is on notice what the common law is of England, etc
ii. New common law crimes are NOT admissible because they do not provide fair notice
iii. Interpreting a statute is not creating a common law crime – it is an interpretation
2. Khaliq v Her Majesty (in jolly old England)
a. Determined that selling glue and sniffing paraphernalia is not a new crime, it’s just a modern example of conduct which has been regarded as criminal and categories of criminal conduct are not closed or static
b. Hume- constitutes an indictable crime by way of causing real injury to the person
i. In some countries, there are common law offenses where the courts fill in the blanks
ii. Jurisdictions in the US take different approaches to common law
a. Courts cannot be superlegislatures
b. 14th Amendment prevents people from being convicted of crimes they don’t have fair warning of
c. Keeler – Killed a fetus
i. HELD – NOT murder because:
1. Not in jurisdictional power of court to define crimes and cannot enlarge a state, insert or delete words of statutes
2. Even if the judicial branch could expand the statute, under due process, it could ONLY be adopted PROSPECTIVELY so as to give fair notice that it constitutes a crime
v. The Rule of Lenity
1. when in doubt, the defendant gets the benefit of the doubt
2. “policy to construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit just as in the case of a question of fact, the defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute”
3. US EXCEPTION: “applies only if after seizing everything from which aid can be derived we can make no more than a guess as to what congress intended”
4. In criminal law the rule of statutory limitation is the rule of lenity
5. US has Rule of Lenity because when the US was founded people were afraid of governments and wanted to protect their citizens’ right
6. There is a discrepancy on what the rule of lenity means: Some say to use it with ANY doubt and others say to use the rule when there is doubt AND ONLY WHEN aid is derived and nothing more can be determined
c. Common Law v Statutes
i. Legitimacy
1. criminal law authorizes imposition of more severe sanctions than civil law; judges are viewed as oligarchic and unrepresentative of society compared to legislatures, therefore that process is less democratic than through legislatures
ii. Accessibility and comprehensibility
1. easy to find and understand and is uniform, supplies no erroneous interpretations and usage by officials and ; gives fair warning and offers better deterrence and makes it easier to lay blame; HOWEVER sometimes statutes are vague
iii. Prospective v Retrospective Operation
1. Statutes operate prospectively (retrospective operation is banned by the US Constitutions prohibition of ex post facto laws) while common law can create new crimes or expand existing crimes and apply it retrospectively
iv. Balancing the P

the law should be determined by what the lawgiver promulgated rather than the intent of the lawgiver because it is the law that governs
3. It is only the laws enacted which bind us and not the intent
4. Legislative history should NOT be used as an authoritative indication of a statutes meaning
5. Look to 1) context, 2) tradition, 3) custom, 4) precedent, 5) dictionary meanings, 6)administrability
6. Arguments for not using legislative history: only statute is law and non-elected members contribute to the legislative reports
7. Arguments for legislative history: acknowledge they are not law, they just help to understand the meaning of the words of the law
8. Keeler case decided textually – the word “fetus” is not in the statute
v. Dynamic
1. Look to: 1) constitutional text, 2) background history, 3) subsequent interpretational history, 4) related constitutional developments, 5) current societal effects
2. Theory behind dynamic approach: should include information which can be quarried out of it in the light of the new situation
3. Interpretation involves three perspectives: 1) textual perspective, 2) historical perspective, 3) evolutive perspective
4. When the text is ambiguous or the original expectations of the statute have been changed by changes in society and law, then must look to the evolutive perspective making current policies and societal conditions most important
5. Keeler case decided dynamically – include fetus in the definition of human being because now a viable fetus has 98.8% chance of survival
g. Specificity
i. Penal laws should be written in plain language, clearly and unequivocally expressed as to not be misunderstood or perverted; so concise as to be easily remembered with all technical phrases clearly defined
ii. For a criminal statute to be constitutionally valid, it must be specific as to what act is criminal
iii. Vagueness can invalidate a law for two reasons:
1. Fails to provide fair notice
2. It may authorize or encourage arbitrary or discriminatory enforcement
iv. City of Chicago v Morales
1. This case DOES NOT deal with statutory overbreadth
2. Three reasons this statute violates constitution:
a. overly broad – it encompasses constitutionally protected rights
b. vague – average intellect couldn’t interpret the statute
c. allows for arbitrary enforcement
3. Court relies on the ARBITRARINESS argument to invalidate the statute Criminal
h. Best places to look on how to decide to argue a case:
i. Statutes
ii. Similar cases regarding the statutes
iii. The perspective the presiding judge usually takes
III. Conduct
a. The elements of an offense
i. Legislatures require some sort of conduct for criminal liability – it has a conduct element also known as actus reus
b. Why Require Conduct:
i. Blame sufficient to warrant criminal sanction is met only when the person entertaining the bad thoughts chooses to act on them
ii. Deter bad thought from turning into actions