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Criminal Law
University of Georgia School of Law
Dervan, Lucian E.

Criminal Law
Prof. Lucian Dervan
Fall, 2012
Tension between defining criminal and civil law
·         Community condemnation of criminal conviction distinguishes
·         Common Law – roots of American criminal law
o   Began to change as legislatures started to supplement Common Law (late 19th / early 20th century) – Statutory Law
o   Though we don’t use common law any more, we sometimes look to those cases for guidance.
·         Courts
o   US Constitution establishes limits to statutes, States can go above and beyond in conferring rights.
o   Interpretation of statutes
·         Model Penal Code
o   Coherent model code for the state legislatures to adopt
o   This is not law – it is a blueprint for state legislatures to use when switching from common law to Codified law.
Standard of proof in criminal case – beyond a reasonable doubt
Standard of proof in civil case – preponderance of evidence
* 7.4 million people in USA are in prison/or court supervision
·         (1/100 people behind bars; 1/31 on court supervision in US)
What does innocence mean?  – Jury doesn’t find people innocent; only guilty or not.
·         Standard at sentencing is a lower standard (preponderance of evidence) – In sentencing a drug convict who was acquitted of murder, judge can take the murder into account when sentencing even though he was acquitted (preponderance of evidence is used to decide aggravating and mitigating factors).
Queen v. Dudley and Stephens
Brooks not charged because he did not commit the act of murder (actus reus) even though he did eat.
·         Stephens and Dudley were the ones who killed/hatched the plan.
“Who should be punished, and how much?”
Pepole v. Du
·         Defendant Du killed 15 year-old girl whom Du suspected of shoplifting from the family’s liquor store in South Central LA.
·         Liquor store had been terrorized by gangs for years.
·         After a jury convicted Du of voluntary manslaughter, Superior Court Judge Karlin sentenced Du to ten years in state prison, but suspended the sentence and placed Du on probation. 
·         7 objectives of sentencing a defendant in CA (pg 54)
·         There was a presumption against probation in the case because a firearm was used.  Judge found the case unusual for three reasons (pg 55).
o   This case garnered much attention in LA, and was a precursor to the LA riots of 1992 in which 2000 Korean businesses were burned, including the Dus’ liquor store.
Mixed theory approaches to sentencing (between retributive and utilitarian)
·         Garvey theory:  Person can legitimately be punished only if he committed a crime, only in proportion to that crime, and only if doing so would produce a world with less crime. 
o   Theory never results in more punishment than is retributively deserved, but can result in less punishment of a wrongdoer than is retributively deserved if utilitarian goals would not be furthered by full punishment. 
·         Another theory sets maximum and minimum punishments for offenses on the basis of retributivism, whereas utilitarian goals would determine – within those parameters – the actual sentence.
·         Indeterminate sentencing system:  if trial judges have broad sentencing discretion (in which judge, not the legislature, sets appropriate punishment for each offender within broad legislative imposed paramaters).
o   Fell out of favor in the 1970s.
o   American Law Institute’s redraft of sentencing provisions (in 2009) abandoned indeterminate sentencing.
o   Until 1970s, when it fell out of favor (crime rates going up, so rehab not working, went the thinking).
§  Focused on rehabilitation.
§  Dominant theme of US sentencing changed to Retribution (Truth in Sentencing), which is determinate sentencing – no range; no parole (1986 Feds abolished parole, except good time reduction of 15%).
·         Determinate sentencing:  legislature passes guidelines for punishments to crimes, which a judge can only go outside the bounds of if specific mitigating factors are present in the case.
·         Restorative Justice – recognizes crime as first and foremost being directed against individual people.  Emphasis on restoration of losses, allowing offenders to take direct responsibility for their actions, and assisting victims in achieving some closure.
o   Incarceration is not a primary feature of Restorative Justice.
o   Victim-offender mediation is central
o   Members of the community become involved in reparative probation boards or peacemaking circles to ensure that the offender takes responsibility for his acitons.
o   Most often used to deal with property offenders, rather than violent criminals.
·         Other forms of sentencing:
o   Fines
o   Boot camps
§  Goals – recidivism (not much better than general prison population – problem with returning to same social environment when they leave boot camp); operating costs are much higher than prison.
o   Home Confinement
§  Cheaper – individual released must pay for GPS bracelet, private guards, etc.
o   Community Service
o   Shaming – Scarlet letter sentencing (see notes on Gementera case below)

Theories of punishment:
·         Retribution – punishment
·         Deterrence:
o   Specific – keep people from re-offending
o   General – maybe won’t deter specific person who has already been convicted, it will deter general public/community.
·         Incapacitation – take offenders off the street; don’t let them commit same crime again.
·         Rehabilitation – become better citizen with help of treatment/counseling/etc.
·         In Du case, book wants us to think about four theories of punishment:  Retribution, Deterrence, Incapacitation, and Rehabilitation
Commonwealth v. Mochan
Superior Court, PA (1955)
·         Defendant Mochan placed several telephone calls to Louise Zivkovich during which he made comments portraying the victim as lewd, immoral, and lascivious.
·         D was charged with intending “to debauch and corrupt, and further devising and intending to harass, embarrass and vilify” Louise Zivkovich.
·         The Defendant was accused of calling the victim’s house and among other things, making indecent comments intending to injure the victim.
·         No Pennsylvania statute specifically forbade the Defendant’s actions, but rather, he was convicted under the common law of outraging decency and injuring public morals. The Defendant thereafter appealed.
Rule of Law: Common law crimes continue to be punishable under the law.
Issue: Was the Defendant properly convicted for violating the common law crime of outraging decency and injuring public morals?
Holding: Yes. Conviction affirmed.

·         The Pennsylvania Penal Code, at the time of this case, provided that common law crimes were still punishable.
·         Under the common law, “[w]hatever openly outrages decency and is injurious to public morals is a misdemeanor at common law.”
·         The defendant’s phone calls suggested sodomy and consisted of lewd, immoral, and filthy language. These acts, at least potentially, injured public morality. The defendant’s conviction was therefore justified.