CRIMINAL LAW OUTLINE—Nunn Fall 2006
GENERAL PRINCIPLES
I. The Criminal Justice System
A. Purpose of criminal law: to ensure that social order is kept; to protect individual rights; fair standards by which everyone is judged; to protect innocent people; to control crime; to control institutions of punishment, keep them operating in a fair way = CONFLICT between controlling criminals and controlling police.
B. Punishment: must fit the crime (proportionality); satisfy the social demand for punishment (retribution); to channel & control it as well as to exercise restraint; Must not punish ex post facto (Act occurred before was unlawful.)
C. Why do people comply w/ the law?
1. rational calculation of your material self-interest (Bentham)
2. expectations of fairness & reciprocity by fellow citizens, respecting fault principle
Day 1: What is a Crime?
What is a crime?
a. Anatomy of a crime:
i. Actus Reus—Act or omission
ii. Mens Rea—Mental Element
iii. Concurrence—Guilty act as a result of guilty mind
iv. Causation—of Act and Mind related to harm
b. Two Types:
i. Malum in se: wrong in itself (ex. homicide; running red light)
ii. Malum Prohibidum: regulation for convenience (ex. Parking or speeding)
c. Crime:
i. An offense against the state
ii. Focus on intent
iii. Proof Beyond a Reasonable Doubt: The fact finder must have an abiding conviction of the truth of the charger.
iv. The victim is not a party to the case, but a witness.
v. Overlap b/w morality and Law
Day 3 and 4: What to punish?
d. Problems with the Enforcement of Morals
i. May give majority group excessive ruling power (Lord Devlin)
ii. ↓ Power of Community to Control Conduct through non-governmental means.
iii. ↓ Power Control and ↑ Conduct Control
iv. More: Diminish respect for law where not enforced; Discriminatory
enforcement; difficulty obtaining evidence (police degradation to collect sordid evidence, ex., prostitution and drugs); criminal genesis (creates more
crime by enforcing morals (ex: black market alcohol during Prohibition)); Diversion of resources (courts!, police, etc.).
v. Criminal Law operates best when specific; Moral pro
h to retribution
i. “to feel guilty is to judge that we must suffer,” moral culpability
ii. best view of retribution isn’t vengeance or eye for an eye
h. Morris:
i. punishment restores the equilibrium of benefits & burdens when one person fails to exercise self-restraint and imposes burdens on others
ii. to avoid unjust enrichment (easy to see when talking about robbery, but can see murder as getting the benefit of power)
iii. problem = assumes world of equivalent opportunities
i. Critique:
i. May punish when not effective or required
ii. Is punishment even useful?
iii. wouldn’t permit plea bargains or other “discounts for cooperation” when socially useful
iv. Marxist view (Murphey): criminals are generally poor; there cannot be blame as crime comes from capitalism: greed and economic disparities.
Response to Murphey: poor people have a choice whether to rob.
