CRIMINAL LAW
PROF. NUNN
FALL 2013
GENERAL
I. Classification of Crimes
A. Malum in se (mala in se)
· Wrong in itself
B. Malum prhohibitum (Mala prohibita)
· Regulation for convenience
· Offense against the social order
II. Objective Tests v. Subjective Tests
A. Objective Tests
· Objective tests look to what a reasonable person would have done in light of the facts of the case
B. Subjective Tests
· Subjective tests consider the D’s situation and his own special characteristics
III. Pragmatic Definition
A. Conduct control
· Commands within the law directed at individuals
· Ex. Prohibiting individuals rom frying eggs on the sidewalk
B. Power Control
· Commands within the law directed at the State and its agents
· Controls when the State has the power to impose sanction on a citizen
· Ex. Can be arrested if caught frying eggs on the sidewalk, but can’t be arrested if not frying eggs on the sidewalk
C. Balance
· The more you impose criminal restrictions, the more power you give the state
· The more conduct control, the more power control
· Positively correlated
IV. Realist Definition
A. Crimes are:
· Contingent: can change with politics
§ What actions are determined to be criminal depends on who has the power to make them
· Indeterminate: subject to interpretation
· Discretionary: subject to discretionary enforcement
§ Just because a law is enforceable doesn’t mean that it will always be applied
V. Sources of Law
A. Statutory Law
· There used to be old common law crimes when American states adopted the English use of common law but some states then began recognizing crime in statutes
· Today crimes are typically codified in statutes
B. Common Law
C. Model Penal Code
· Pulls from codified criminal statutes
· Not law, not legally binding anywhere
· Gives importance to legality, culpability, and proportionality
JUSTIFICATIONS FOR PUNISHMENT
I. General
A. 3 Types of Justifications Required for Punishment
· Why impose punishment at all? (General justifying aim)
· Why impose punishment on a particular individual? (Distribution)
· How much punishment should be imposed? (Degree)
B. Social Cohesion
· Punishment serves a function in helping to hold society together
· It also strengthens the bonds of social solidarity
II. Utilitarianism (Jeremy Bentham)
A. Basic Ideology
· Punishment only admitted in as far as it promises to exclude some greater evil
· Theory that punishment is justified because it is useful, either to the defendant or society
· The purpose of all laws is to maximize the net happiness of society
· Punishment is justifiable if and only if it is expected to result in reduction in pain of crime that would otherwise occur
· Assumes human beings are rational and calculate costs/benefits and that humans avoid criminal activity if punishment outweighs criminal rewards
B. Critiques
· May permit punishing the innocent because it benefits society
· May result in disproportionate punishment
§ Ex. 3 Strikes Law
III. Retributivism
A. Basic Ideology
· General Justifying Aim:
§ Punish because acts are blameworthy or to maintain equality
· Distribution:
§ Punish a particular individual because he deserves to be punished
· Degree:
§ An “eye for an eye”/ Jus tallionis
§ Punishment should be proportionate to the crime committed
· People have free will and should be punished for making blameworthy decisions
B. Critiques
· May require punishment when not effective or efficient
· Does not tell you how much punishment someone actually deserves
· Morality of punishment cannot be assumed in all cases
· Retributivist arguments collapse in absence of equality/fairness
§ It has been argued that we all have a burden of self-restraint
§ Some people do not feel like they are part of society because they don’t have access to much of it, so they commit crimes because they don’t feel subject to society’s laws
IV. Other Justifications for Punishment
A. Classic Mixed Theory
· Stresses need to distinguish between aim of punishment and limits on its permissible use
§ Aim is Utilitarian and Degree is Retributivist
o Enhance social welfare by preventing crime but can only pursue within retributive limits
§ Can only be punished if you commit a crime, and only in proportion to that crime, and only if doing so would produce a world with less crime
B. Deterrence
· The point of criminal punishment is to d
· Contractual duty
· Voluntary assumption of care and prevent others from rendering aid
· Duty based on creation of peril
§ You created the peril so now you have an obligation to assist
D. Liability for Duty
· To be liable one
§ Must have a duty
§ Must know of the duty
§ Must be able to perform the duty
· Not liable for failing to perform duty when
§ There is a conflicting duty with other parties
§ Assisting a party will put someone else at risk
E. Public Policy
· Why is there no general duty to aid others?
§ Priorities: there are a limited amount of resources in the CJ system, focus is on acts of commission rather than omission
§ Vagueness: it is difficult to describe acts of omission
§ Overreaction: more people are doing things they don’t need to do over concern of being punished for not doing something
§ Laissez-faire ideology: don’t want more government interference
III. Model Penal Code
A. Liability for an omission only when “a duty to perform the omitted act is otherwise imposed by law”
· OR, the law defining the offense calls for a duty to perform the omitted act
B. Doesn’t differ much from common law
IV. Cases
A. Jones v. U.S.: Jones found guilty of involuntary manslaughter due to failure to provide for a baby, which resulted in its death.
· Can be criminally liable for breach of a legal duty if you fall into one of the above categories of duty
B. Pope v. State: Pope found guilty of child abuse. She did nothing while a mother of a child savagely beat it in her presence. She also failed to take the child to get medical attention. Both the mother and the child were staying in her home temporarily.
· Do not have to legally provide care for someone if you have no legal duty to do so
· Pope had no duty to care for or protect the infant because the mother was always present
