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

Criminal Law

Professor Nowlin

Summer 2011

1. Initial Issues

a. Crime: act or omission prohibited by law for the public good and prosecuted by the state

i. Malum in se: evil in and of itself, intrinsically immoral

1. Examples: rape, murder, molestation

ii. Malum prohibitum: malicious because it is prohibited

1. To avoid chaos/for prudence sake

2. Example: Rules of the Road

iii. Felony: serious crime punished by at least one year in state prison

iv. Misdemeanor: lesser crime; max penalty is:

1. Less than one year in jail

2. Fine

3. Both

v. All crimes have four elements:

1. Actus reus (voluntary act)

2. Mens rea (culpable intent, mental state)

3. Concurrence (between actus reus and mens rea)

4. Causation (of harm)

b. Purpose of Criminal Law

i. Natural rights

ii. Minimum contribution to society

iii. Substantive Law v. Criminal Procedure

1. Law: defines crimes and punishment

2. Procedure: defines litigation of crimes

c. Costs to Criminalize Behavior

i. Scarce resources

ii. Restriction of liberty

iii. Might encourage lawlessness

iv. More danger for organized crime, and therefore violence and corruption

v. Privacy concerns

d. Purposes of Punishment

i. Punishment given to ensure compliance

1. Retribution: desert or merit, culpability

2. Deterrence

a. General: to deter the general public

b. Specific/Special: to deter the defendant

3. Rehabilitation: reform the demonstrated character flaw

4. Isolation/Incapacitation: poses threat to society, must be removed for public safety

5. Education/Denunciation/Condemnation: Place guilt, build awareness that act is antisocial

6. Peacekeeping/Channeling Resentment: Social cost, allowing victims (and third parties) to use justice system to vindicate rights

ii. The purposes of punishment will be used to determine the sentencing.

1. Indeterminate (fixed) sentences v. specific sentences

2. Prison conditions (easy v. rough)

3. Deterrence often lengthens sentences

4. Rehabilitation is not likely to serve as a rough punishment

5. Proportionality of punishment

a. 8th amendment: capital punishment is prohibited against non-homicides, juveniles, mentally retarded

i. 3 strikes laws: hard to argue violates 8th amendment if sentenced to jail

iii. Limits of Punishment

1. 1st amendment: free speech

2. 4th amendment: search and seizure

3. 5th amendment: double jeopardy, due process

4. 8th amendment: cruel and unusual punishment

5. 14th amendment: constitution is applicable to states

e. Court’s Interpreting of Statutes

i. The court’s purpose is to place into effect the intent of the legislature. This requires interpretation of legislatively created statutes. (Court applies statute without rewriting the statute so as to avoid violating the separation of powers).

1. Legal separation: courts v. legislature

2. Religious separation: church v. state

ii. Three sources

1. Common Law: judge made, mostly before 1900

2. Model Penal Code: not directly binding

3. State Statutory Trends: majority rely heavily on MPC

iii. Methods of Interpretation

1. Read the statute

2. Find the legal context of the statute

3. Research judicial precedence regarding the statute

4. Explore the policy behind and purpose of the statute

5. Legal history

6. Canons of Statutory Construction

a. Rule of Lenity (Common Law) (USSC tie breaker)

i. Strict construction

ii. Narrow interpretation

iii. Lenient to defendants: if two interpretations exist, the one in favor of the defendant wins

1. When considering between two interpretations of a statute, the general rule is that the more specific statute or interpretation trumps the less specific statute or interpretation

b. Justice Rule: Fair import of terms to effectuate justice (Model Penal Code) (Fair import provision)

iv. No punishment without law, Article I Section 9 and 10

1. Rule against retroactive punishment


duct of that nature or to cause such a result

ii. If circumstances are involved, aware of circumstances or believes/hopes such circumstances exist

iii. Even if you think it may not happen

b. Knowingly (without purpose)

i. Knows it is going to happen due to existing nature or circumstances

ii. Aware the conduct will substantially likely cause such a result (practical certainty)

iii. Even if you don’t want it to happen

iv. NOTE: Common law intent (subjective mental state) = purpose + knowledge

c. Recklessly

i. “consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law abiding person would observe in the actor’s situation.”

ii. Awareness and deviation

Super = subjective fault (defendant recognizes risk)

Infra = objective fault (reasonable person would have recognized the risk, but the defendant did not)

d. Negligently

i. “should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.”

ii. MPC: Criminal Negligence

iii. Civil Negligence: not a gross deviation, but still a deviation