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Criminal Law
University of Georgia School of Law
Watson, Camilla E.

Watson, Fall 2009
I.                   INTRODUCTION
A.     Sources of Criminal Law:
1.      Statutory Codes/Constitutions – all 50 states & fed. govt. have different & non-binding codes
2.      Judicial precedent/English Common Law – stare decisis
3.      MPC
B.     MPC Scheme (1962)- elements of each offense divided into 2 types:
1.      objective actus reus requirements
2.      culpability mens rea requirements (purpose, knowledge, recklessness, N)
C.     Burden of Proof
1.      Due Process Requirement – Am. 14 says prosecution must prove all elements of a crime beyond a reasonable doubt.
2.      Should be divided into two parts: (burden of production & b.o.persuasion)
A.     Ways theories affect legal decision-making:
1.      influence decisions of legislatures in defining offenses & defenses, prescribing penalties, and allocating resources
2.      influence judges in interpreting & applying criminal statutes
3.      influence judges in sentencing offenders
B.     Retributivism
1.      A person who does wrong should suffer in proportion to his wrong-doing
2.      Theory is “backwards looking”
3.      Limiting principle: there is no affirmative justification (Immanuel Kant)
4.      Contractual analysis: there exists a social contract that an individual gets something from society; criminals have broken this contract
5.      Problems with Retribution:
a)      Lacks fair consideration of those who don’t start out w/equitable benefits (Murphy)
b)      Emotional values at stake – people suffering exclusion don’t have an investment in society
c)      Cabarga case: Tree Frog raised Cabarga who then abused other kids w/Tree Frog. Tree Frog sentenced to 527 yrs; Cabarga sentence lowered to 25 yrs w/possibility of parole.
C.     Utilitarianism
1.      Purpose is to maximize the net happiness of society – only future consequences are material to present decisions (doesn’t consider blameworthiness)
2.      Jeremy Bentham says there are 4 times when punishment shouldn’t be afflicted:
a)      Misapplied: evil is more than compensated by a good (self-defense, etc.)
b)      Inefficacious: person acted w/out intention (kids, idiots, etc.)
c)      Superfluous: same ends may be obtained by more mild mean
d)      Too expensive: if evil of punishment exceeds evil of the offense committed
3.      Deterrence – imposing punishment may cause her (specific) or others (general) to fear penalty for future crimes & thus deter them from doing them. 
a)      Theory assumes:
(i.)               Punishment is harsh enough to fit the crime
(ii.)             People are able to comprehend & weight the cost/benefit of crime
(iii.)           Certainty of punishment must exist (most think they won’t get caught)
(iv.)           Punishment must be proximate, swift
b)      Problems with deterrence:
(i.)               May lost idea of blameworthiness (can’t punish innocent just to deter)
(ii.)             Uses people as a means to an end (a “perfect” society)
4.      Rehabilitation – punishment in form of restraint enables offender to be treated and their character altered permanently. Downfall of this theory:
a)      Different people take different time to recover; made uniformity of punishment very difficult
b)      Some people could fake success in rehabilitation
c)      It is patronizing; interference with personal autonomy
d)      Focuses too much on the individual and not the crime
e)      Gets costly b/c some people will be staying much longer for minor offenses
f)       Too much leeway given to correctional officers, judges, etc. – makes it easy to discriminate
5.      Incapacitation – restraints on offender’s liberty, thus making it impossible for her to engage in criminal behavior during the period of restraint
a)      Theory assumes:
(i.)               Past offenders will be repeat offenders
(ii.)             Offenders taken off the street will not be immediately replaced by someone else – THIS assumes:
–          opportunities for crime are not abundant
–          we are dealing w/crimes that require skills
–          not a high demand for crime (prostitution, drugs, etc.)
(iii.)           Crimes will not be committed in prison
(iv.)           Social protection is limited for the general, free society
(v.)             It is worth it to keep repeat offenders in jail, despite high costs
b)      If we could figure out who the repeat offenders are, we could target them, incapacitate them before they commit crimes
6.      Punishment may serve educational function
D.     Proportionality of Sentencing – doctrine provides assurance that an offender receives punishment appropriate to the crime he has committed.
1. Utilitarianism and Proportionality
a)      punishment must outweigh the potential profit to the criminal of committing the offense
b)      the greater the mischief of the offense, the greater the punishment should be
c)      grade offenses in such a way to induce a person to choose always the least mischievous of two offenses
d)      punishment should be set in a manner to induce a criminal to do no more mischief than what is necessary for his purpose
e)      cannot inflict more punishment than necessary, since punishment is bad in it of itself, just do what’s necessary
2. Retributivism and Proportionality
a)      the offender owes a debt to society, punishment is a mode of repayment. The payment due must be proportional to the offense committed
b)      theory does not assert like for like. Rapists are punished by getting raped, but a punishment that requires the wrongdoer symbolically to repay his debt.
A.     The Need for an Actus Reus
1.      Individual cannot be punished for a potential crime solely on desert – cannot punish someone for

icient period to have been able to terminate his possession.
8.      People v. Grant – Ill. App.(1978) – Grant had a medical history of psychomotor epilepsy causing a number of violent attacks on people in the past. He was sitting in a bar drinking one night when the police came in and escorted someone outside. D burst through the crowd of people outside and struck an officer in the face twice; he was put under arrest w/great force and found in seizure in cell later.
Arguments. D claims b/c of seizure his mind went blank, thus he couldn’t have committed a voluntary act. Automatism is state during which person is capable of action but not conscious of what he is doing – it is not insanity. If found insane, Grant would be institutionalized; involuntary act has no reprecussions.
Significance. Remanded. If jury finds him not insane or consciously committing the offense or recklessly bringing about his seizure & state of automatism, he should be convicted.
9.      The King v. Cogdon – Cogdon acquitted from charge of murder of daughter Pat.
10. People v. Newton– Newton stopped by 2 officers & ordered from his car. Struggle over gun; 1 officer wounded and shoots Newton in stomach. Newton loses consciousness, but continues struggle – gun goes off; 2nd officer shot and killed. Since there was no volition because he was unconscious, he cannot be held liable.
D.     The Prohibition of “Status Crimes”
1.      Defining a crime in terms of a “status” rather than a particular activity violates the Eighth Am. prohibition against cruel & unusual punishment.
2.      Robinson v. California – U.S.(1962) – A California statute made it a criminal offense for a person to “be addicted to the use of narcotics.” Police officers (in L.A.) observed track marks on D and heard him admit to occasional use of narcotics.
Significance: This statute is analogous to criminalizing a disease; violation of the 8th and 14th Ams. It also takes away the actus reas requirement for a crime. Stewart’s assumption that drug use & addiction are involuntary could have the repercussion of not ever being able to criminalize drug use on the lack of the voluntary element needed. J. Harlan concurred under the retributive punishment theory b/c he would only authorize punishment if there was a past act committed. White dissents: feels drug use is voluntary act.