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Criminal Law
University of Oklahoma College of Law
Henderson, Stephen E.




Criminal Burdens

· Burden of Persuasion: preparation of the evidence.

· Burden of Production: getting something to the jury.

· In criminal law we use beyond a reasonable doubt, which is the highest standard of proof in the law.

o Each and every element must be proven beyond a reasonable doubt.

o Jury must have an abiding conviction of the defendant’s guilt.

o Constitutional requirement.

I. Justifications for Punishment

Help to develop reasons about why it might be okay to inflict pain (punish) others. Also helps to justify punishing a specific person in a specific way. Punishment is suffering (1) purposely inflicted (2) by the state (3) because one of its laws was violated. Punishment is blaming and stigmatizing. Punishment is important for two reasons (1) effect on important social problem of crime, and (2) the scale of incarceration makes prison an important social institution. Theories of punishment affect legal decision making in three ways: (1) influence decisions of legislatures, (2) influence judges in interpreting/applying criminal statutes, and (3) influence judges in sentencing offenders. There are two conflicting theories.

a. Retributivism

i. Idea that criminals should be punished because they deserve it, proportional to the moral depravity of the crime and their blameworthiness.

ii. Can be no underserved punishment. Punishment is justified on the ground that wrongdoing merits punishment. People should get what they deserve.

iii. Based on a deontological (ethical) theory.

iv. Limiting Principle: there must be no undeserved punishment – and affirmative justification – desert justifies punishment.

1. Not allow the state to punish those who are mentally ill, were under duress, or who had little or no choice.

2. Not allow criminal confinement based on the prediction of future acts.

v. Policy: (1) Free choice notion. Human beings possess free will, people have the ability to rationally choose to commit crime, and thus they owe a debt to society. Punishment is the payment of that debt. Punish because they have chosen to do wrong and punish proportional to the crime committed and to the doer’s personal moral blameworthiness. (2) Social contract notion.

vi. Criticisms:

1. Problems with cardinality and ordinality.

a. Ordinality: order things by their moral depravity.

b. Cardinality: how many days in prison or how many dollars is the equivalent to the moral depravity of the offense.

2. Ambiguity

3. The infliction of pain does not necessarily result in future benefit to society.

4. Glorifies anger and legitimizes hatred.

5. Irrational because it’s founded more on feelings than reason.

vii. Two main differences:

1. Retributivism looks backward in time and justifies punishment solely on the basis of the previous, voluntary commission of a crime. Utilitarians look forward in time.

2. Premise of utilitarianism is that people are generally hedonistic and rational calculators, retributivists focus on their view that humans generally possess free will or free choice. May justly be blamed when they choose to violate society’s mores.

b. Utilitarianism

i. Idea that society should punish if, and only if, the punishment will reduce future crime of a greater degree than the pain caused to the person being punished. Sole aim is to prevent crime.

ii. People are rational calculators. Cost-benefit analysis between punishment and crime.

iii. Our criminal justice system is shaped by this view.

iv. A teleological theory based on purposeful development.

v. Limiting Principle: no useless punishment.

vi. Criticisms:

1. Evidence shows that a significant deterrence on the crime rate does not occur.

2. Inequities in the administration of the law.

3. Problem with denying human dignity to offenders.

4. Uses people solely as a means to an end.

5. Can justify the punishment of a person known to be innocent of wrongdoing.

vii. Types of Utilitarian Theories

1. General Deterrence: punish as an object lesson to the general society.

a. General Deterrence by Intimidation

b. General Deterrence by Education

c. General Deterrence by Norm Reinforcement (Individuals are more likely to commit crime when they perceive that criminal activity is widespread.)

2. Specific Deterrence: punish and deter the specific person who committed the crime.

a. Specific Deterrence by Incapacitation

b. Specific Deterrence by Intimidation

c. Specific Deterrence by Rehabilitation

i. Principle of Least Eligibility: the worst off law-abiding citizen must be better off than the best off criminal.

c. Two main differences:

i. Retributivism looks backward in time and justifies punishment solely on the basis of the previous, voluntary commission of a crime. Utilitarian view looks forward in time.

ii. Premise of utilitarianism is that people are generally hedonistic and rational calculators; retributivists focus on their view that humans generally possess free will or free choice. May justly be blamed when they choose to violate society’s mores.

Criminal Offense = Actus Reus (act requirement) + Mens Rea (mental requirement)

Elements of a Criminal Offense:

1. A voluntary act.

a. Occasionally we may substitute that the defendant failed to act when they had a duty to act.

2. That voluntary act or omission must cause social harm.

a. Idea that the commission of a crime tears the whole social fabric.

3. Mens rea – morally culpable state of mind.

4. Actual cause

5. Proximate cause

II. Actus Reus (the physical/external part of the crime)

a. The Need for an Actus Reus

i. A voluntary act or omission.

1. Does not have to be complicated. Can be as little a mere muscular contraction.

ii. Criminal punishment requires the individual has committed an act and that the actus reus is a necessary

ane was carrying a weapon that was legal in both his place of origin and destination, but not where the plane was forced to make an emergency stop. Court found that since he did not voluntarily bring himself into the state there was not a voluntary act.

ii. If a statute requires specific conduct, the conduct must be voluntary.

1. Martin v. State: Police arrested a drunk man and subsequently placed him on a highway. When charged for being drunk in a public place the court found the conduct was not voluntary.

iii. When the defendant is unable to control their behavior, due to a condition like epilepsy, sleepwalking, etc., if the defendant could have anticipated the state they will be held liable.

1. People v. Grant

e. The Prohibition of “Status” Crimes

i. Statutes that make it a status a crime rather than conduct.

ii. A state may not constitutionally punish a person for non-conduct (thoughts or statuses, even if they are dangerous). Some conduct by the defendant is constitutionally required in order to punish a person.

iii. Very likely any statute that punishes a person for a mere propensity to act will run afoul of constitutional principles.

1. Robinson v. California: A California statute made it a crime for a person to be addicted to narcotics. No act by the defendant – just his present addiction – was required for conviction. The Supreme Court ruled that the statute violated the “cruel and unusual punishment” prohibitions in the Eighth and Fourteenth Amendments to the United States Constitution. Retributivist message – although drug addicts constitute a danger to society and, therefore, it may be rational to incarcerate some of them, it is indecent to punish them simply because they are sick.

a. Dissent discussed that the law presumes free will, and thus your status was obtained voluntarily.

iv. While cannot punish desire, only an act, can punish an act within a desire.

1. Powell v. Texas: Statute made it a crime to “be found in a state of intoxication in any public place.” Man claimed that he’s an alcoholic, thus always drunk, and it’s a status. Different from Robinson because he was actually drunk, not punishing his alcoholic status but rather his conduct.

v. Should be recognized a constitutional defense to involuntary conduct that is an inevitable symptom of the status or disease syndrome from which the person suffers.

1. For example, punishing a homeless man for sleeping in the street.