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Criminal Law
University of Oklahoma College of Law
Backus, Mary Sue

Criminal Law


Spring 2017


Crime: what state legislature defines as crime and gives an associated punishment

Something for which you can be punished (by government)

Distinguishing features between civil wrong and criminal act:

Community condemnation; stigmatizing
Threat of physical punishment

Burden of proof = Beyond a reasonable doubt

Why this higher burden?

More severe outcomes than civil (usually just $)

Loss of life or liberty

Stigma and social repercussions

Collateral consequences

Don’t want to make a mistake (reduce risk)

Convict innocent people

Control power of the government

So can’t use system to harass

Need society to trust system

Burden of proof plays role in public confidence

Criminal law is now wholly statutory

Legislatures have authority to define crimes and create statutes
Most statutes come from common law

Sources: common law, statutes, MPC

MPC is not really a source of law but what think is best

Some states have adopted parts of it

Owens v. State: start at a presumption of innocence

A conviction based upon circumstantial evidence alone, may be sustained if the circumstances are inconsistent with any reasonable hypothesis of innocence.

Principles of Punishment

Theories of Punishment

2 Dominant Approaches

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

To maximize pleasure, good must come from punishment because pain comes from it
Forward looking
Good of punishment:

Less crime:

General deterrence: public sees punishments
Specific deterrence: individual deterred from future crimes
Incapacitation: criminals off the streets
Reform: rehabilitation

No sound evidence that punishment actually deters

Severity of punishment versus certainty of being caught

Knowing you could be caught more of a deterrent than severity of punishment

Retribution: punishment justified if and when, and to the extent that, the actor deserves it

Eye for an eye
Backward looking
Kant’s criticisms of utilitarianism:

Using punishment as a deterrent, using person to influence others, is wrong
Person used as means for purpose of another

Person deserves to be punished for:

Wrongful choices/actions
Bad character
Harmful consequences or results of action

Person deserves punishment because:

Crime took unfair advantage and punishment takes the advantage away
Crime expressed superiority and punishment takes that message away

Fitzjames Stephens: “morally right to hate criminals”

You can be a retributionist without hating criminals

You can think someone deserves punishment without hating them

Penal Theories in Action

Dudley v. Stephens: A person may be punished and convicted of murder, despite killing out of necessity
People v. Superior Court (Du):

In imposing a sentence, must consider the objectives of sentencing:

To protect society
To punish the defendant for committing a crime
To encourage the defendant to lead a law abiding life
To deter others
To isolate the defendant so she can’t commit other crimes
To secure restitution for the victim
To seek uniformity in sentencing

The amount of punishment imposed depends on the facts

United States v. Gementera: The Sentencing Reform Act affords courts broad discretion in fashioning conditions of supervised release that are reasonably related to the nature and circumstances of the offense and the history and characteristics of the defendant.

To determine whether a condition is appropriate, reviewing court must ask:

Whether sentencing judge imposed the condition for a permissible purpose
Whether the condition is reasonably related to that purpose

Humiliation is an impermissible purpose of sentencing


Who gets to determine how much punishment?

State system:


Federal system:

Sentencing guidelinesà Sentencing commission

How much punishment:


Constitutionality: 8th Amendment

Relationship connecting punishment to blame: seriousness (mental state), priors, future dangerousness, harm (victim harmed), other sentences, general deterrence

8th Amendment: limited proportionality principle

Prohibits grossly disproportionate; use analytical framework in Ewing v. California
Strict proportionality not required

Coker v. Georgia:

Apply 8th Amendment’s ban on cruel and unusual punishment
Punishment is excessive and unconstitutional if it:

Makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless and needless imposition of pain and suffering
Is grossly out of proportion to the severity of the crime

Death can only equal death

Ewing v. California

4 Principles of proportionality review:

Primacy of legislature
Variety of legitimate penological schemes
Nature of federal system
Guided by objective factors/facts

Objective factors to see if sentence violates the 8th Amendment

Gravity of the offense and the harshness of the penalty
Sentences imposed on other criminals in the same jurisdiction
Sentences imposed for commission of the same crime in other jurisdictions

Strict proportionality between crime and sentence not required; only extreme sentences “grossly disproportionate” to the crime

Modern Role of Criminal Law


Legality: no crime without law (controls the government, puts people on notice


Notice; understand how to behave
Can’t delegate discretionà arbitrary/capricious
Lenity doctrineà interpret statutes narrowly and in favor of t

ammar would defeat the purpose of the statute

A statute cannot go beyond its text

To effect the purpose of the statute, the statute may be implemented beyond its text

Theories of Interpretation

Textualism: focuses on words and phrases of the statute and deemphasizes the role of the reader in creating meaning

Plain meaning will produce an interpretation that is neither lenient nor strict, but which should “contain all that it fairly means”
Oppose use of legislative history
Employ variety of strategies to determine the plain meaning of terms in a statute

Not all agree about which sources of plain meaning to consider

Can produce an objective and apolitical interpretation by limiting analysis to investigation of plain meaning

Intentionalism: focuses on the meaning the legislature intended to give the statute

Emphasizes plain meaning and judicial interpretation only insofar as these tools are helpful determining the will or intent of the legislature
Assumes that it is possible to find an objectively correct meaning for a particular statute
Uses legislative history as a tool for reading statutes

Pragmatism: focuses on role of reader in giving meaning to the statute by interpreting it

Assumes there is no single, objectively correct meaning of a statute
Existence of multiple interpretations are permissible, and it is inevitable that interpreters to bring “preunderstandings” to their interpretation

Approve of preunderstandings because they believe that the influence of the prior knowledge of the statute’s reader will link his or her interpretation to tradition

To use legislative history is to pick and choose

Congressional record is murky
There is no single intent

Yates v. US

The plainness or ambiguity of statutory language is determined by references to the language itself, the specific context that language is used, and the broader context of the statute as a whole
Familiar interpretative guides aid construction of words as they appear
A word is known by the company it keeps
Looks at captions, positioning, legislative history
Where general words follow specific words in a statutory enumeration, the general words are usually construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words
Ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.