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Criminal Law
University of Kansas School of Law
Stacy, Thomas G.


Professor Stacey

Spring 2012


A. Ex. Client wants to know whether it is a crime to contribute money to Hamas. Where would you look for the answer?

1. Federal statutes, state statutes, case law (relevant when statutes are ambiguous); secondary sources; legislative history

2. KSA 21-3102: “No conduct constitutes a crime… unless it is made criminal in this code…” In Kansas, is the common law at all relevant? Yes it is- if statutes are ambiguous, provides interpretation

3. Dudley v. Stephens is an example of a common law approach to crime

4. Statutory Interpretation Exercise

a. Statute says: “It shall be a misdemeanor to operate a motor vehicle on a walkway through a public park.”

b. Why is a Ford Explorer a “motor vehicle?” Plain meaning of the term “motor vehicle”.

c. Does an electric golf cart = “motor vehicle?” literal interpretation- then what about a motorized wheel chair?

d. Problem with a literal interpretation you end up with conclusions that the legislature did not intend

e. How the term is defined in other jurisdictions (something legislatures look at)

f. What legislature had in mind:

1) danger;

2) preserve a park-like atmosphere

5. Basic Sources of Statutory Meaning: Legislative Intent, Revealed Through:

a. Text

b. legislative history (committee reports, floor debates, signing statements, etc.), if any.

c. Purposes, as revealed through its text, legislative history, or surmise (some have preambles that tell you the purpose)

d. Case law

6. Suppose the state supreme court has held that a motorized wheelchair is not a motor vehicle. What implications does this decision have re an electric golf cart? Why?

a. Is golf cart analogous to a wheelchair or not? Look at the reasoning the State Supreme Court used- would need to look at the holding- have to look at the reasoning and rationale and how it applies

b. Interpret statutes in light of their text, legislative history, and purposes. Also in light of case law applying them or any incorporated common law concepts.

c. Interpret cases in light of , e.g.

II. Purposes of Criminal Punishment:

A. Utilitarian View

1. Should defamation be a criminal offense? – general deterrence- one advantage of criminalizing defamation- maybe we could deter people from doing that, but on the other hand, might discourage speech that has great value

2. What would an utilitarian say? Another argument- criminalizing defamation would lead to significant costs, and benefits wouldn’t outweigh the costs- civil damages would be available anyway

3. What is an utilitarian view- measure the benefits against the costs

B. What are the utilitarian benefits of punishment?

1. Specific deterrents, general deterrents, incapacitation- prevent people from inflicting harm on society at large; rehabilitation- solitary confinement’s original purpose (reflection)

C. Retributivist view

1. View that the offender ought to receive what rational justice requires- doesn’t look at future consequences; look at degree of harm offender has inflicted on others; offender’s responsibility for that harm

2. Retributivist- whether criminal punishment is deserved as a matter of justice- needs to be proportionate to the offense: Measure the gravity of the offense by the amount of harm inflicted and the degree to which it prevents the person from making choices; and the degree to which the offender is responsible. Intentional wrongdoing is worse.

D. Utilitarian calculus of whether defamation should be a criminal offense:

1. Benefits

a. Added general and specific deterrence- better protects reputation

b. Incapacitation of chronic defamers?

c. Rehabilitation?

2. Costs

a. Not much added deterrence: $ damages generally work.

b. Prison more expensive than damage judgments

c. Deters valuable speech, too

d. Tool for suppressing unpopular ideas

E. Retributive Considerations:

1. Yes, criminal punishment deserved as a matter of rational justice:

a. Harm great: More severe infringement of another’s autonomy than, e.g., car theft.

b. Offender sometimes has high degree of responsibility.

2. No:

y could accurately judge whether the killing is necessary, and they were self-interested; and who decides who is to die?

B. . The British case of the Conjoined Twins

1. If surgically separated, Jodie would survive and have 90+% chance of living a life of normal length.

2. Separation surgery certainly will cause Mary’s death.

3. Do nothing: Docs say both would die, probably within 6 months

4. Doctors/experts presenting the case- impartial judge making the findings in writing- slippery slope concern carries much less weight in this case

C. Should slippery slope ever criminalize act that, considered by itself, is good or excusable? Isn’t this equal to punishing an innocent?

1. Coleridge: “We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy.”

2. Problem with Utilitarian Calculus in Criminal Law

a. Set up rules people can’t comply with and then punish them?

D. For law to influence conduct

1. people have to know what the law is; and

2. have to care about what the law is

E. Retributive Considerations

1. Basic argument against

2. What’s the retributive rationale for war? Death penalty? Self defense? How does it apply here?

a. Death penalty- killer is a wrongdoer; proportionate to the crime

b. War- nation commits a wrong that justifies the war

c. Self-defense- innocent person has a right to defend him or herself

3. Would retributivists ever think it’s okay to punish an innocent person? No

4. Why necessity killing is wrong according to retributivists- Parker didn’t do anything; innocent

5. One alternative- to do nothing