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Criminal Law
University of Oklahoma College of Law
Johnson, Kit






Where does Criminal Law come from? What makes something a crime? Hart tells us some points on pp. 1-2.

1. Must/Must Not Command

2. Who Refers To

3. Sanction/Consequence (punitive but also a deterrent)

4. Moral Condemnation by the Community (probably the most important). Sometimes just by creating a statute indicates condemnation.

5. Threat of Punishment (really ties into #3)

The Nature of the Criminal Law

Designed to bring moral condemnation plus punishment that has to be justified, located within statutes, but have to be constitutional

· A crime is any act that the state calls a crime, and if the state does not call an act a crime, then it is not a crime.

· A crime is any act that the state punishes.

· A punishment is a burden or hardship imposed with the intent to condemn or censure.

Sources of the criminal law

· State and federal statutes

· No common law crimes

· Model Penal Code

Constitutional Limits

Substantive Limits

· First Amendment: free speech

· Eighth Amendment: excessive punishment

· Substantive Due Process

Procedural Limits

· Ex post facto prohibition: can’t punish you for something not illegal when committed

· Void for vagueness doctrine

· Bill of attainder: legislature declares one guilty without trial


State’s burden of proof (burden of persuasion) at trial:

· The state must prove every element of the offense beyond a reasonable doubt

Standard of review on appeal based on a claim of “insufficient evidence”

· An appellate court will uphold a conviction if any rational fact-finder, viewing the evidence in the light most favorable to the state, could have found that the state proved every element of the offense beyond a reasonable doubt.

Why do we have the beyond reasonable doubt requirement?

· In Re Winship: it is far worse to convict an innocent man than to let a guilty man go free.

Common Claims on Appeal

· The instructions were wrong, or

· The evidence against him was insufficient as a matter of law (as in Owens v. State).

Jury Nullification

· A jury can technically ignore the law and conclude how it wants. But it is not a right to be advertised.

· It goes against purpose of the criminal justice system. State v. Ragland.


What is punishment?

The intentional infliction by an authority of some burden or hardship on an actual or supposed offender, with the intent to express condemnation or censure (Kent Greenawalt).

Two Questions when determining “the why” of punishment

1. Why punish?

2. Who should be punished and how much?

Two Dominant Approaches to Punishment

1. Retributivist: punishment is justified because people deserve it.

· Positive: guilt is necessary; no other benefits needed; criminals deserve punishment. The guilty should be punished and the non-guilty should not (even if it’d benefit society)

· Negative: guilt is necessary; some benefits would be nice; don’t have to punish; one who is not guilty must not be punished (even if it’d benefit society)

2. Utilitarian (Consequentialist): believes that justification lies in the useful purposes that punishment serves (such as deterrence)

Consequentialism: weighing the costs and benefits / pros and cons

· Punishment is justified if and when the good consequences of imposing it outweigh the bad consequences of imposing it

· Forward-looking: if we punish now, what’s going to happen?

· What good does punishment do?

o Good: Less crime, but it could be something else

· How does punishment cause less crime? (Greenawalt)

o General deterrence (generally won’t commit crime)

o Specific deterrence (personally)

o Incapacitation (likely can’t do same crime in jail)

o Reform (might see your errant ways and turn around)

· Proportionality: seeking balance


· Eye for an eye (lex talionis)

· Punishment is justified if and when, and to the extent that, the actor deserves it

o Positive: guiltiness is both the why and sufficient reason to punish someone; not only necessary, but they must be punished.

o Negative: important that wrongdoer be guilty, but don’t go so far to say the wrongdoing alone is the sole basis of punishment.

· Backward-looking: you have done something, how can we punish you for it?

· What does a person deserve to be punished for, if he deserves to be punished for anything?

o Wrongful choices

o Bad Character

o Harmful actions

o Because his crime took unfair advantage and punishment takes that advantage away [Morris]

o Because his crime expressed superiority and punishment takes that message away [Hampton]


Proportionality of Punishment

· Utilitarian: seeking balance

· Retributivist: seeking justice, equality

Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and


· Guide the lawyer in defending one charged with its violation


· Prohibition that also sweeps up protected freedoms

· Inapplicable if a limiting construction is possible.

Sources of American Criminal Law

· Colonial

o Common Law

· 19th century

o codification

· Current

o Legislatures

o Model Penal Code (MPC)

o Courts

Legality Principle — Nullem crimen sine lege, nulla poena sine lege

· Crime without existing law, no punishment without existing law

Constitutional Limits

· Legislative – Ex Post Facto

o Makes conduct lawful when committed unlawful

o Makes crime greater than when committed

o Inflicts greater punishment than when committed

o Allows less or different evidence for conviction than when committed

· Judicial – Due Process (what we’re dealing with here)

o No retroactive application of judicial alteration of common law criminal doctrine that violates fair notice

§ Unexpected and indefensible change from law prior to conduct

Vagueness Doctrine

· Due Process voids unduly vague laws

o No fair notice

§ when “men of common intelligence must necessarily guess at its meaning and differ as to its application” Connally

o Insufficient guidelines

§ when permits “arbitrary and discriminatory enforcement” Morales

Statutory Interpretation

Morales: Chicago Gang Congregation Ordinance – too vague. Things the Majority used:

· Ordinary English Meaning

o Dictionary

o Origin of the word

o Writers

§ Bible

§ Fiction

§ Press

· Legislative Intent

· Exam Example and “The Golden Purple Rule.”

o Muscarello: use of a gun means “Active employment”

· Question: S sells his gun for narcotics. W receives a firearm in exchange for narcotics.

· Theory: “Golden Purple Rule”

· Facts + Law = Legal Conclusion (by the way, this is the way to answer her exam questions).

o •S “used” a gun within the meaning of 18 USC § 942(c)(1) because, by ________ active employment .

· Have law and facts in every answer—that’s just the way to think about it (“analysis”)