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Criminal Law
University of Mississippi School of Law
Nowlin, Jack Wade

Criminal Law – Nowlin – Summer 2010
            -Declaration of Independence: the government is needed to protect the natural rights of citizens. Substantive criminal law is a tool used to protect these rights – defines rights by identifying criminally indictable acts versus acts that are not criminal
Crime: an act or omission prohibited by law for the public good, prosecuted by the state, and punishable by fine, incarceration, or death
            -Malum in se: intrinsically wrong; wrong in and of itself
-Malum prohibitum: wrong because it is prohibited; for example – jaywalking – not intrinsically wrong, just need a rule we all agree upon to maintain order
Basic Purpose of the Criminal Law: the protection of natural rights; promote and define minimum contribution to social life – above common decency, below heroic virtue
Costs of Criminalization:
1.      Scarce resources (judicial systems, prisons, etc.)
2.      Restriction of personal liberty
3.      Might encourage lawlessness if too many things are criminalized
4.      Greater danger of organized crime, violence, and corruption
5.      Infringement on privacy
Principles of Legality:
1.      No law, no crime
2.      No ex-post facto laws (retroactive application of  laws)
3.      Laws must be written with reasonable clarity (Due Process of the 5th and 14th Amendments)
a.       Vague laws may trap the innocent and are open for abuse; “uncertain meanings lead citizens to steer far wider of the unlawful zone than if the boundaries of forbidden areas were clearly marked” (State v. Palendrano)
b.      Advance Notice: a statute is unconstitutionally vague if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute
c.       Enforceable Legal Standards: must be sufficiently certain so that courts will have adequate guidance when called upon to enforces them; without any fixed standard for juries and judges to decide what is made criminal means a statute is unconstitutionally vague
d.      Protection Against Enforcement Abuse: statutes that are so worded as to place unfettered discretion in the hands of the police are void for vagueness
4.      No unforeseeable judicial enlargements of criminal statutes (Separation of Powers AND Fair Warning)
a.       Keeler v. Superior Court of Amadour County: rewriting statute is an improper use of judicial power
5.      Citizens must be given fair warning to steer between what is lawful and unlawful
a.       State v. Palendrano: Common Scold was never legislatively defined
b.      Keeler v. Superior Court of Amadour County
Criminal Liability?
            -Did the accused commit each element of the offense?
            -Are there any exculpatory defenses?
            -Are there constitutional prohibitions against conviction or sentencing?
Sources of Criminal Liability:
1.      Common Law: an evolving body of principles built by accretion from judicial decisions (opinions) rendered in the context of countless individual disputes; also derived from treatises (such as Blackstone and Coke); English Common Law is a major source of law in the U.S.
a.       Even though the criminal law is highly codified, the common law provides definitions and examples that courts use to interpret criminal statutes
2.      State Statutes: sometimes called the “Pennsylvania Model” or “State Statutory Model”
a.       Criminal law matters are largely governed by statute and most jurisdictions have comprehensive criminal codes that define general principles of liability, specific crimes, and defenses
b.      Independent State Statutory Trends: new legislative laws enacted to meet the needs of current societal trends
c.       Statutes preserve separation of powers: distinguish legislature from the courts
d.      Need statutes to conform to principles of legality
e.       Statutes come from the common law, MPC, or state trends
3.      Model Penal Code: a proposed penal code developed and approved by the ALI in 1962. Although the code itself does not constitute “law,” it has served as the basis for almost all post-1962 revisions of criminal statutes
a.       Adopted, in whole or in part, in 2/3 of the states
I.                  Purposes of Punishment
1.      General Deterrence- discouraging future crimes by making an example out of the current violator
2.      Retribution- by breaking the law and doing something socially harmful, one must repay a debt to society through punishment; this should match the severity of the crime – “eye for an eye”; arguably the most important goal of punishment in Western society
3.      Specific Deterrence- discouraging the specific violator from repeating the criminal offense in the future
4.      Isolation- keeping dangerous individuals away from society
5.      Education- used to educate society about the law – what acts are criminal and the severity of these crimes
6.      Rehabilitation- reformation of the offender so they are not inclined to commit crimes again; punishments usually not as harsh
7.      Channeling Resentment (Peacekeeping)- doing justice in the eyes of the public to avoid illegal means of seeking revenge; channel concerns through the criminal justice system so citizens don’t take the law into their own hands
a.       Think about how purposes of punishment are achieved for different kinds of crimes/offenders: Example- 1st Degree Murder is premeditated and deliberate, and is therefore more easily deterred/more preventable through general and specific deterrence than 2nd degree, which is spur of the moment
b.      How Purposes of Punishment Interact:
                                                              i.      Indeterminate (fixed) sentences vs. specific sentences: isolation and rehabilitation usually call for indeterminate, while deterrence sentences should be specific
                                                            ii.      Prison conditions for different purposes (easy vs. rough)
c.       Judge Frankel – Criminal Sentences; pp. 14
d.      U.S. v. Bergman; pp. 19:
                                                              i.      Question: Is punishment imposed for the violation of law to deter other potential law breakers, and to avoid depreciating the seriousness of the criminal’s crime? Yes.
1.      *Retribution* is the cornerstone and only purpose achieved by giving a prison sentence to Dr. Bergman (according to Judge Frankel)
2.      Not likely to need rehabilitation because of his age and health
3.      Education: do not want to send the wrong message to society by being too lenient
4.      No need for isolation because he is not dangerous (first offense, non-violent white collar crime)
II.               Statutory Interpretation
a.       Sources of Statutes: Common Law, Model Penal Code, and State Statutory Trends
b.      Separation of Powers: legislature vs. courts – courts must be sure they are interpreting the law as the legislature intended
c.       Principles of Legality: must be a statute, it can’t be retroactive or enlarge criminal liability, fair warning, Due Process Clause
d.      Basic Methods of Interpretation/Examining Legislative Intent:
            1. Text (often codifying one of the sources, supra)
            2. Legal Context
            3. Purpose of the Law (the policy or reason for the law)
            4. Precedent
            5. Legal History
            6. Canons of Statutory Construction
-Rule of Lenity (Rule of Strict Construction): give the defendant a break; in construing an ambiguous statute that sets out multiple or inconsistent punishments, ambiguity should be resolved in favor of the more lenient punishment
-Justice Approach: think about defendant AND victim à Justice
e.       Locke Litigation – Statutory Interpretation; pp. 54: Application of the Vagueness Doctrine, Fair Warning, Broad vs. Narrow Interpretation of Statutes – Is cunnilingus an act made unlawful as a crime against nature? Yes. Original court’s judgment affirmed by USSC.
                                                              i.      Established 2 Different Ways to Approach/Interpret Intent
1.      Probability: allows for future flexibility in decisions/greater judicial interpretation
2.      Certainty: maximizes fair warning but limits interpretation
                                                            ii.      USSC: Broader interpretation of “Crimes Against Nature” to include cunnilingus is not unconstitutional – fair warning given because of previous statement that Tennessee followed Maine law AND previous decisions indicate that the courts will PROBABLY use the broader of the two interpretations. Courts are allowed to do this as long as it is foreseeable
f.       State v. Palendrano – Fair Warning, Vagueness Doctrine
                                                              i.      “Common Scold” was never legislatively defined and therefore did not give fair warning àunconstitutional
1.      Void for Vagueness means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is prosc

rarchy of Culpability:
                                                              i.      -Purpose: If acting with conscious objective to engage in that conduct OR cause that result
                                                            ii.      -Knowledge: aware that conduct is practically certain to cause the result
                                                          iii.      -Recklessness (Subjective intent): gross deviation and aware of substantial and unjustifiable risk
                                                          iv.      -[Criminal] Negligence (Objective intent): gross deviation but unaware of a substantial and unjustifiable risk (should have been aware of the risk)
                                                            v.      -Civil Negligence (Objective intent): simple deviation
                                                          vi.      -Strict Liability: no mens rea requirement to satisfy liability
1.      *Intent exists at CL – equate with purpose and knowledge. The MPC definition of “intent” means purpose and/or knowledge: Is there knowledge of a practical certainty that actions will cause a certain result?
2.      *Subjective mental state can be inferred from objective circumstances
6.      3 Types of Defenses
a.       True/Affirmative Defense: defendant admits to committing the prohibited act, but provides justification/an excuse for his actions
                                                              i.      Burden of Production: D
                                                            ii.      Burden of Persuasion: D/F
                                                          iii.      Quantum of Evidence: D-Preponderance of the Evidence; P-P/E or BRD
b.      Legality Defense: asserts that the prosecution is somehow being unconstitutional
c.       Failure of Proof Defense: not truly a defense; attacks prosecution’s proof of an essential element of the crime. Once a defendant raises the issue:
                                                              i.      Burden of Production: P
                                                            ii.      Burden of Persuasion: P
                                                          iii.      Quantum of Evidence: BRD
                                                          iv.      Practical Burden: P-Show, D-RD
1.      Unusual Failure of Proof Defense: when certain basic elements, such as consciousness, are presumed – prosecution doesn’t have to disprove them for conviction, so burdens shift to the defendant
a.       Burdens of Production/Persuasion: D
b.      Quantum of Evidence: P/E
a.       Regina v. Cunningham – Shift from General Approach(CL) to Elemental Approach(MPC) to MS
                                                              i.      Question: Can a defendant be convicted under a statute that requires malicious intent if he did not actually intend to do the harm done and did not foresee the result?
1.      Says “maliciously” does not mean “wicked:” In a statutory crime, “maliciously” postulates foresight of consequence (purpose, knowledge, recklessnessàsubjective fault)
2.      “Maliciously” requires that the defendant act recklessly with foresight of the actual consequences, or it requires actual intent to do the particular harm done. Malice does NOT require that ill will toward the person injured be shown, nor does it require the act done to be unlawful in itself
                                                            ii.      Need to measure culpability with greater precision in order to effectuate purposes of punishment (link it to the result or social harm)