CRIMINAL LAW
FARRELL
2013
Substantive Criminal Law
NOTES:
· Minimum standards of behavior necessary for functioning in society
· Answers these questions
o How do various jurisdiction define their criminal offenses?
o What are the basic elements common to every crime in the Anglo-American tradition?
o What does the prosecution have to prove in order for the judge to find a person guilty?
o What are the elements of particular crimes?
o What distinguishes the degrees of particular crimes?
o What level of punishment is appropriate?
· Stigmatizing of Wrongdoers: Attitude towards the wrongdoer with collateral consequences that extend beyond the term of punishment
Aims of Criminal Law
NOTES:
· Criminal Law is a method
o Commands – Must do, must not do
o Means for protecting society
· Criminals have incurred the moral condemnation of their community (Distinguishing point from civil wrong-doings)
Sources of Criminal Law
NOTES:
· Statutes – Crime if the conduct meets the codified definition
o Common Law
§ Misnomer – Rules are determined by statute
§ Problems: Societal evolution & Inconsistency between jurisdictions
o Model Penal Code (Product of the American Law Institute)
§ Model Penal Code jurisdictions have sought to update and reform their criminal codes, relies on statutory language
§ Goal of uniformity
o Federal Government – Through Commerce Clause to piggyback into Criminal Law
Justifications for Punishement
NOTES:
· Utilitarian / Consequentialist – Does the law really effect people’s choices?
o Deterrence
§ General Deterrence: Punishment to deter others
§ Specific Deterrence: Punishment to deter the individual defendant
o Incapacitation: Incarceration to keep the defendant away from other members of society
· Nonconsequentialist
o Retribution: Proportional Punishment, Giving the defendant what he deserves
§ Malum in se – Bad in and of itself
§ Malum prohibitum – Bad according to the law
o Rehabilitation: Reforming the defendant through vocational training, counseling, etc.
· Stigma – Government imposed stigma on individuals by means of treating the individual badly
o i.e., Fines, incarceration (Acts of punishment by the State that would be crimes by ordinary people)
CASE:
· Regina v. Dudley and Stephens (Boat out at sea, Men choose to eat the boy)
o Held to be murder – (1) Apply the applicable law, (2) Are the elements met? (3) Are there any affirmative defenses? (4) If guilty, what is the punishment? – Death, but a pardon had been arranged, effectively only 6 months in jail
o Defense of Necessity: Not murder if it satisfies an excuse like necessity
§ No absolute and unqualified necessity to preserve one’s life
§ No legal justification for the homicide
o Were the Goals of Punishment Met? No Deterrence, No Retribution, No Rehabilitation, Incapacitation ultimately
LAW REVIEW ARTICLE:
· Haven or Hell: The Experience of Lorton Central Justified
o Every persons experience in prison is different, the effects are different
o Are the goals of punishment being accomplished effectively? No
§ Retribution: All prisoners are generally treated the same in prison regardless of the offense, severing the retributive connection between past crime and present punishment
§ General Deterrence: Do criminals really evaluate the consequence before committing a crime? No, Most focus only on how not to get caught because criminals have intense motivations to commit crimes that they often believe will better their lives
· Family Visits: are a positive time in children’s’ memory, and does not have a deterrent effect
§ Specific Deterrence: Not effective, Memories of incarceration fade really quick once free.
· Specific deterrence fails when jail becomes a refuge.
§ Rehabilitation: People often end back in jail for many reasons
Dilemma of Expressive Punishment
NOTES:
· Why Punishment Must Be Expressive –
o Rehabilitation – Criminal needs to learn their conduct is wrong by expressing the proper moral standing of the public moral indignation of criminal acts, expressively
o Separates punishment from any other physical hardship – Punishment is in reaction to a wrong and expresses condemnation
§ Incarceration vs. Detention without Guilt
· i.e., Immigration asylum & deportation, protective custody, insanity hold, etc.
o Alternative punishments lack the expressive element
§ Disconnect between theory and practice
§ Community services involves activities that are worthy of praise and admiration
o Punishment needs shame – express appropriate moral condemnation
§ Caution – Shaming punishments may work against the American value of individuality
· Why Punishment is Not Expressive – Criminals are not receiving the message
o Problem of Audience – To Whom Does Punishment Speak? Judges and prosecutors
§ Message must be relayed to intended target group
§ No control over how it is conveyed when received second hand
o Problem of Ambiguity and Inconsistency – What Does Punishment Say?
§ Structural limitations of Punishment as a language
· What does a prison sentence really mean?
· Retributive punishment similar to the crime committed loses the effect when the state undertakes the same action in response
§ Inconsistencies in application
· Minimum sentences working against equal sentencing
· Race effects sentencing
Beyond a reasonable Doubt – the standard of Proof
NOTES:
· Reasonable Doubt: Objective doubt for a reason, that objective reasonable person would decide
o Every reasonable person could have doubts about anything, must be a doubt beyond this. The standard does not mean certainty.
· Creating a Reasonable Doubt:
o Case-in-Chief Defense – Attacking the prima facie case (i.e., Alibi, the elements are not proven)
o Affirmative Defenses –
§ Burden Shifts to the Defendant and is a preponderance of the evidence proof standard
· The standard is only raised for the prosecution, not that the standard is changed for the defendant.
· Prosecution has greater resources
· Value Judgment: 99 guilty people going free is better than one innocent person in jail
§ Justification Defenses – Justified even though it was a crime
§ Excuse Defenses
14th Amendment – Equal Protection Clause
STatory INterpretation
RULES:
· Statutory Interpretation – Start with plain meaning continue as needed through Legislative History & cite to Dauray
1. Plain Meaning: Ordinary common sense meaning of the words in their context
§ Exception: Definitional statutes, with definitions
2. Canons of Construction:
§ Noscitur a sociis – Doubtful terms of phrases may be determined by reference to their relationship with other associated words or phrases (Assume language is consistently used throughout)
§ Enjusdem Generis – Where words follow a specific enumeration of person or things, the general words should be limited to the person or things similar to those specifically enumerated (By association)
3. Statutory Structure: A statute is to be considered in all its parts when construing any one part
4. Statutory Amendments: Statute should be construed to be consistent with subsequent statutory amendments
5. Avoiding Absurdity: If one position is absurd, the other one must be right
6. Legislative History: When the plain meaning and cannons of interpretation fail, resort to legislative history (speeches, committee reports & drafts)
· Rule of Lenity – When ambiguity exists such that a statute doesn’t meet the due process fair warning requirement, the ambiguities must be resolved in the defendant’s favor. (Dauray)
o Before a man can be punished as a criminal under Federal Law his case must be “plainly and unmistakably” within the provisions of some statute.
o Model Penal Code § 1.02(3): Does not recognize the lenity principle, but requires instead that ambiguities be resolved in a manner that furthers the general purposes of the Code and the specific provision at issue.
· Void for Vagueness Doctrine – When ambiguity exists such that a statute doesn’t meet the due process fair warning requirement or when the statute authorizes arbitrary and discriminatory enforcement, the entire statute must be struck down. (Papachristou, Kolender, or Morales)
o Test: A statute can be void for vagueness in one of three ways:
1. The statute is so unclear that ordinary persons have to guess at its meaning
· No adequate notice of what conduct is forbidden
· Does not provide adequate standards of enforcement
2. The statute is overly broad in that it includes innocent conduct (i.e., apparent purpose)
3. The statute allows for unfettered police discretion
o Vague on its Face: Does not satisfy the test for any conduct
o Vague as Applied: Does not satisfy the test as applied
