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Criminal Law
University of Mississippi School of Law
Hall, Matthew R.

Criminal Law — Prof Hall. § 3 — Spring 2010
I. Introduction
A. The Legality Principle

Legality Principle: criminal liability imposed ONLY if a statute clearly prohibits conduct
– Due Process Clause
– §1.05- overruled CL method of defining offenses by reference to case law; i.e. judicial creation of defenses
– NOT concerned w/ blameworthiness of Δ
– Constructive Knowledge- responsible for knowing what the law is in any jurisdiction you’re in

Aspects of the Legality Principle
– Prospective: Ex Post Facto laws in C ban Retroactive Criminal liab and punishment
o Invalidates laws that:
§ Criminalize prior lawful behavior;
§ Raise punishment to a level greater than when the crime was committed; or
§ Apply a harsher penalty than when the crime was committed
o Ex: NO liability for prior use of drug which was not, but now is, a controlled substance
– Clear: Not UC Vague
o Rooted in Due Process Clause
o Statute must give sufficient warning so that men may conform their conduct so as to avoid that which is forbidden
– Strictly Construed:
o Rule requiring strict construction of penal statutes
o Lenity:
§ If a Criminal is Law Susceptible to Multiple Readings, Pick the Reading Most Favorable to the Δ
§ Resolve Ambiguity in Favor of the Δ
§ Vague v. Ambiguous:
· Ambiguous- conduct defined w/ some specificity yet is subject to two or more interpretations
· Vague- prohibited conduct is NOT clearly defined
· Ambiguous statute is NOT necessarily UC under DP. However, vague statute is ALWAYS UC.

Alternative to Legality Principle
– Principle of Analogy: System based on Analogy and CL
– Codification Movement: Today, most states have codified their Criminal Law, thus signaling the abandonment of CL Crimes

Ray Brent Marsh
– Facts: Unlicensed cremator; did not burn bodies but piled them in back yard.
– Holding: No liability under existing GA statutes b/c did not “willfully” deface bodies
– Takeaway: system is not providing justice to families of victims, but by allowing Marsh to walk, we are promoting very important policies. Shows how serious we are about the Legality Principle.

Rationales For and Against the Legality Principle
Rationales FOR
– Fairness / Notice
o Actual notice NOT required for liability; enough that prohibition has been lawfully enacted
o Malum in Se- conduct is inherently wrong
o Malum Prohibitum- conduct wrong only b/c of positive law
– Deterrence
o Effective deterrence requires that conduct is clearly defined
o Over-deterrence- people refrain from lawful conduct that they mistakenly believe is prohibited
– Legislative Function
o Legislature must draft w/ extreme precision
o Simultaneously a Limit on Legislative Power
– Rule Articulation
o Norm Setting: Gov’t says “this is what you should do”
o Policy: prevent abuse of power by judge
– Uniformity in Enforcement
o Unclear prohibition can create a potential for abuse of discretion by police officers, prosecutors and others w/ decision-making authority
o Avoid:
§ Disparity;
§ Abuse; and
§ Arbitrariness
Rationales AGAINST
– Inflexibility
o “Frozen” rules render the criminal law unable to punish new or unusual forms of crime
o However, legislature may simply “amend” the law.
o Legitimation / Failure of Rule Articulation???- May imply that certain conduct is wrong, however other conduct is criminal
– Over Inclusion / Under Inclusion
o Promoting Technicalities- frustrates effective justice (Marsh case).
o Causes tortured drafting in order avoid vagueness or strict construction.
– Blameworthy Δ’s Escape Liability
o Technicalities
o Demoralization Costs- frustration when criminal law doesn’t provide preferred result.
o Judicial Skewing- instrumental reasoning used to reach preferred outcome
– Preferencing Positive Law Over Morality
o Legality Principle tends to exclude morals, which cannot be expressed in precise language
o However, system has certain safety valves:
§ De minimus exception- conduct that, for any reason, was NOT intended by legislature to be covered by the offense is exempt from liability
§ Jury nullification- jury’s rejects evidence or refuses to apply the law either b/c of social policy or their own sense of justice / morality
Vagueness and Ambiguity

– Rule of Strict Construction (§1.02) – rule of lenity
o Only applies if there is ambiguity. Ct determines if there is ambiguity
o Modern trend has been to remodel strictness of rule of strict construction by replacing w/ rule of fair import
– Rule of Fair Import (§1.02(3))
o All of a statute’s provisions are to be construed according to the fair import of their terms (must still be a legitimate interpretation)
o Advantages:
§ Gives cts authority to interpret statutes in a way that does not frustrate legislative intent
§ Rule seeks to ensure that some reasonable notice of the offense is possible
§ Appropriate balance between letting Δs walk on technicality and ensuring people have proper notice of what is an illegal action

– US v. Grey (Fed Jx, 1984)
o Facts: Grey threatened to kill a judge; §1115 looks like it only covers threa

D of those who need rehab; effective treatments; and determination of when person has been rehabilitated
o Advantage: reduce likelihood of repeat offenses
– Education / Setting Norms
o Reinforce Rule Articulation
Deterrence as Legal Fiction (Presumptions Made)
– Specific
o Calculus Regarding Apprehension / Conviction
o Cost / Benefit
o Rational Actor- presume those contemplating criminal conduct perform a cost-benefit analysis. However, over 90% of criminals are impaired.
o Hypothetical Replay of Decision to Offend*- criminals may attempt to change their mind after the fact
o Presumption of Repeat*

– General
o Calculus Regarding Apprehension / Conviction
o Cost / Benefit
o Rational Actor
o Presume Knowledge of Law and Punishments*- impossible for media coverage to catch all crime and punishment. Typically, only those who get away w/ it end up on television (OJ).
o Potential Offenders Like the Δ*
o Over-Deterrence*- already committed a capital offense, why stop here (serial killers)?

Critique of Utilitarian Theory
– Too much focus on the Benefits of Punishment; i.e. lack of full cost benefit analysis
– Incapacitation
o Cost of Incarceration
§ Pecuniary
§ Personal
§ Social
o Opportunity Cost
o Non-Pecuniary Costs
§ Effect on Offender’s Family
§ Effect on Community
§ Become Hardened Criminals
§ Criminal Networks / Prison Gangs lead to Street Gangs
§ Lose Opportunity for Restitution
§ Recidivism- relapse into a previous undesirable type of behavior, i.e. crime
– Violators deserve punishment for their wrongdoing
– Rational
o Deontological
§ Moral blameworthiness as assessed by moral philosophers
§ Depends on seriousness of violation and the offender’s remorse
o Objective
o Moral
– Emotive
o Empirical- communities shared intuitions about justice
o Social- look at society as a whole
Civil Disobedience
– Permissible to break moral laws to call attention to immoral laws. Commit crime to show opposition.
– Ex: those who kill abortion doctors
– Hard to deter