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Criminal Law
University of Illinois School of Law
Bilz, Kenworthey Jennifer

Criminal Law
Bilz
Fall 2012


·         Theories of Criminal Law
·         Why Punish?
o   Deterrence-Punish to deter actors from committing acts that cause social harm
§  Main goal of the deterrence theory is to increase societies overall good
§  If punishment does not benefit society, there is no point  
§  Specific Deterrence: aim to deter single actor from committing future social harm
·         Incapacitation-if an actor is separated, they cannot commit future social harm and be rehabilitated
§  General Deterrence: aim is to deter society as a whole from committing future social harm
§  Marginal Deterrence: Punishment of offenses must be sufficient to cause actors to prefer lesser offense
·         If small offenses are punished too harshly, incentive for actor to commit greater offense (X robs store, Y sees him. If robbery and murder are similar, no point to leave Y alive)
o   Retribution-an actor should be punished for causing social harm and only causing social harm—the benefit of society should have no role in determining whether or not to punish.
§  Social harm creates an imbalance in society, punishment should seek to restore that balance but only that balance (a sophisticated eye for an eye form of punishment)
o   Expressive-punishment is the an expression of the community’s condemnation of the act
§  Social harm expresses a devaluation of the victim, punishment seeks to restore the value of the victim.
§  Expressive is a legitimized way to be vengeful—it informs society that the act is wrong and will be punished and the wrongdoer deserves to be punished
§  State v Chaney-man was convicted of rape, given light sentence. COA stated sentence failed to express the community’s condemnation of the serious crime and didn’t inform society that rape was a serious crime, which would be dealt with accordingly.
·         How to Punish?
o   Imprisonment
§  General Deterrence-even if rehabilitation and specific deterrence are unnecessary, imprisonment is necessary for general deterrence
·         US v Bergman-an old man with no chance of rehab and no need to be deterred from future crime was sentenced to prison in order to deter future acts
o   Shaming Penalties
§  Less expensive and express appropriate condemnation as community has chance to express their disgrace
§  Criticism
·         Could lower self-esteem, which could led to further actions since no longer caring about how one is perceived by peers
·         Only worthwhile in close knit communities since larger urban areas allow for a person to “blend” into the sea of people, a luxury not affording to persons living in towns where everyone knows your name
·         Very little control on the outcome, how the public will react, may punish the actor far too severely and it would be wrong to subject one to that unpredictability
o   Fines
§  Deterrence-do a similar job in deterring criminal activity and do not deplete gov’t resources
§  Retribution-equal crimes deserves equal punishment but lower class will lack ability to pay and the upper class will more than likely suffer greater reputational harm
§  Expressive-fines don’t really express moral condemnation, informs society that the law can be bought 
o   Community Service-punishing through community service is more visible, has more of a redeeming value, and benefits society more
§  Takes away from the nature of community service—takes away from the honor of community service.
·         Instutional Dimension of Criminal Law
·         Courts
o   Legality-A person may not be punished unless their action was defined as criminal under law
§  Rule of lenity-statues should be strictly construed to the benefit of the actor and any ambiguities should be narrowly defined
·         Keeler v United States-D beat up gf who was pregnant, court ruled he could not be charged with killing the fetus, since statue only made mention of human being, and D deserved fair notice to what a crime is
§  Rationale-changing the law is a job for the legislature, allows for fair notice that an activity is a crime, which promotes economic activity, as it allows one to pursue their own ends by reducing risk factor of ambiguous laws.
§  Criticism: overstepping the power of the legislature often forces them into action quicker, more efficient to for judges to interpret laws as circumstances change, and more times than not, criminals don’t consult law books
o   Desuetude-prolonged failure to enforce laws among widespread use, voids laws (rejected by most courts)
§  Rationale-prevents selective prosecution
§  Criticism-the proper forum for changing laws is the legislature
·         Commonwealth v Stowell-man caught have sex with prostitute, couldn’t prove it though and was charged with adultery. Court ruled they are not in the position to invalidate old laws
·         Jury
o   Right to Jury
§  Both defendant and state have right to jury trial
·         Duncan v Louisiana and United States v Moon-courts ruled that the right to jury is under the sixth amendment, however, a defendant does not get his choice, it goes both ways
§  Rationale-places the criminal justice system in the community, 12 heads are better than one, legitimizes the verdict
§  Cons: juries are often ignorant of the law or unable to understand the complexity of the case/laws being argued unfairly place a burden on the community and is rather expensive to maintain.
o   Nullification-Juries have the right nullify laws for no reason
§  Although they have that right, a judge does not have to inform them of that right
·         US v Dougherty-court ruled that judges do not have to inform the jury
§  Pros-checks the power of overzealous prosecutors and judges and infuses the criminal justice system with community sensibilities, sends message to system that laws are unjust/racist/etc
§  Cons: juries instructed of nullification were more likely to use it, with the effect depending on the type of the case (drunk driving cases were more than likely nullified even if law doesn’t prove it) nullification likely to occur in race based cases (however, could be a case of juror activism where black jurors nullify cases that would put black youth away for small crimes)
o   Mercy-A judge has the power to set aside verdicts, switch verdicts, or reduce punishments
§  Commonwealth v Woodard-convicted of murder, judge later reduced charge to manslaughter
·         Gives power to judge to override corrupt and biased juries. Sort of a have your cake and eat it

n-causation is the 1) Antecedent but for which the result in question would not have occurred and 2) the relationship between the conduct and the result was not interrupted
Common Law
·         Actual Cause (But-for Test)-but for defendants actions, would the social harm have occurred? If no, defendant is the actual cause of social harm
o   Defendants behavior does not have to be the sole and exclusive cause
·         People v Arzon-D set fire to building, firefighter died while responding to a second fire in the building after responding to the defendants. Court ruled D was to blame due to but for his actions
o   If defendants actions accelerate the social harm, they are the actual cause
·         Brackets v Peters-man raped old lady. While in recovery, she began to weaken and eventually died. Court ruled that D was actual cause because his actions accelerated the death.
o   Acts, which occur simultaneously and inflict social harm, both actors will be held to be the actual cause
·         Legal Cause-an act that was the actual cause of social harm is also the legal cause as long as the end harm was a reasonably foreseeable result
o   Intervening Causes-independent forces that come into play after the defendants act
o   IF AN INTERVENING ACT LOOK FOR ATTEMPT TOO
§  De Minimis-if the action is so insignificant compared to second social harm, the court will overlook it (I punch you and on way to hospital, you die in car crash)
·         Foreseeable Intervening Causes  
§  Dependent Causes-Acts in response to the conduct that are foreseeable do not break the chain
·         Negligent medical treatment does not break the chain unless the negligence is gross negligence
·         Action taken in response to danger is considered dependant
·         Actions undertaken due to defendants actions will be considered dependant
o   Stevenson v State-court ruled that even the women committed suicide, she did so to avoid further harm from defendant.
§  Independent Causes-causes that are not foreseeable will break the chain (while at hospital, a bomb goes off)
§  Free, Deliberate, Informed causes will break the chain
·         Hendrickson v Commonwealth- wife choose to sleep outside after fight with her husband and froze to death. Court ruled wife made the decision and was not forced to sleep outside.
·         Exception-take victims as they are
o   Regina v Blaue-although the V made a deliberate, informed, and free decision to refuse medical treatment that would have saved her life, she decided against it due to religious reasons. Court ruled take victims as you find them.