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Criminal Law
University of Oklahoma College of Law
Wattley, Cheryl

Criminal Law Outline Spring 2009
 
 
I.                   WHAT IS A CRIME?
a.                   Prohibited conduct as prescribed by society
                                          i.                        Sanctions against crime reaffirms a communities condemnation for behavior it finds unacceptable.
b.                  Characteristics of Laws:
                                          i.                        Prohibitions – thou shall not
                                        ii.                        Must – thou shall
                                      iii.                        Valid and binding
                                      iv.                        Subject to sanctions
1.                  Sanctions are imposed by the community, state, or nation
2.                  Sanctions represent the condemnation of the community
3.                  Formal and solemn announcement of moral condemnation of a community
a.                   Stigma: Reaffirms that the community had determined an action is unacceptable
b.                  This means lawmakers must serve as the voice of the people
II.                SOURCE OF THE CRIMINAL LAW
a.                   Common Law – Judge made law, mostly based on English common law.
b.                  Penal Code/Criminal Code – Statutes in every state, written by the Legislature. Judges interpret the criminal statutes.
                                          i.                        To understand the meaning of statutes, you also have to look at the common law.
c.                   Model Penal Code (MPC) – Drafted by the American Law Institute in the 1950s. Adopted by ALI in 1962.
                                          i.                        Some states have adopted all or part of the MPC as the penal code in their jurisdiction. Other jurisdictions look to the MPC for guidance.
III.             CRIMINAL LAW vs. CIVIL LAW
a.                   Freedom is not impacted by civil penalties, but is in criminal law
b.                  Criminal law deals with punishment; civil law often compensates.
                                          i.                        Criminals are marked as moral wrongdoers when they are convicted by the jury (i.e. stigma attaches.) Condemned by the community.
                                        ii.                        Criminal sanctions often go beyond the payment of $$ (jail, probation, loss of citizenship, etc.)
c.                   Constitutional Restrictions on Criminal Law:
                                          i.                        State and federal constitutions (i.e. freedom of speech, Roe v. Wade, gun control laws)
                                        ii.                        Due Process: Right to face accuser and witnesses.
                                      iii.                        6th and 14th Amendments: Trial by jury: Right to counsel
                                      iv.                        5th Amendment: Prohibition against cruel and unusual punishment.
                                        v.                        Double Jeopardy
                                      vi.                        Proof beyond a reasonable doubt
                                    vii.                        Presumption of Innocence – Places higher burden on the state.
d.                  The criminal process:
                                          i.                        Crime is reported
                                        ii.                        Report may or may not be investigated.
                                      iii.                        Charges are filed/arrest
                                      iv.                        Preliminary Hearing (suspect presented with charges against them; bail is determined, if any)
                                        v.                        Grand Jury (In federal court, not in OK)
                                      vi.                        Plea bargain/jury trial/judge trial
                                    vii.                        Punishment/Sentencing (fine, prison term, community service)
IV.              THEORIES OF PUNISHMENT
a.                   Punishment is intentional infliction of pain on another, and it must be justified. It must be morally justifiable to punish the defendant.
b.                  2 conflicting theories of punishment:
                                          i.                        Retributivist – People should get what they deserve, and when a person commits a moral wrong, he deserves to be punished. (“An eye for an eye”)
1.                  Balance: in society if everyone lives by the rules, punishment is responsible for taking things off balance
a.                   Burden not to commit crimes b/c it brings benefits (i.e. others will not harm us in return.) Criminals don’t play by the same rules. He does not accept the burdens of obedience. Punishment is a morally just act b/c it brings the criminal back into moral equilibrium.
2.                  BACKWARD LOOKING: Retributivist looks backward at what the D has done. Looks both at the harm caused and the D’s moral blameworthiness. D gets his just desserts.
3.                  Human possess free will and have the capacity to act freely – to choose whether to do wrong. When they choose to do wrong, it is appropriate to punish them.
4.                  Punishment is a payment of debt to society.
5.                  Punish proportionally to the crime they have committed and to the wrongdoer’s personal moral blameworthiness.
6.                  Necessary to punish to uphold the moral code
7.                  Act dominates rather than the offender
8.                  Retributivist would never knowingly punish an innocent person.
                                        ii.                        Utilitarianism – Punishment serves a purpose greater than providing a consequence for action; works toward greatest social benefit
1.                  All forms of pain are bad. Punish, as a form of pain, is not good; but crime is a form of pain, and that’s not good either.
2.                  FORWARD LOOKING: Society should impose pain if, but only if, it will reduce future crime or pain of a greater degree than society is imposing on the D.
3.                  Would-be criminal will consider the benefits that he hopes to obtain from committing the crime, and balance it against the pain he will endure as punishment, and he will rationally decide whether it is worth the risk.
4.                  Must have notice for deterrence to be effective, assumes there will be some thought process by the criminal before commission
5.                  General deterrence: Punishment of one D is used to teach a lesson to the rest of society. Must be public and foreseeable. Knowledge that punishment will follow.
6.                  Specific deterrence: Punishment is design to deter a specific wrongdoer.
a.                   Incapacitation: Wrongdoer cannot commit any additional crimes while he’s in custody.
b.                  Intimidation: By punishing D, he will remember the pain he suffered, and be deterred from committing future crimes.
7.                  Rehabilitation: drug rehab, teaching job skills, anger management.
8.                  May be willing to punish an innocent person if it would lead to a future good.
c.                   Queen v. Dudley & Stephens: Ds became cannibals and killed 1 to save the rest. Ds were found guilty of murder.
                                          i.                        Ds decided whose life was more valuable.
                                        ii.                        Defense of necessity would yield same result.
                                        iii.                        Punishment Alternatives:
1.                   Retributivist- backward looking that they committed murder so they should be killed. Not interested in why the muder took place or the circumstances surrounding the murder
2.                   Utilitarian – forward looking such that the court determines whether this would deter people in the future. 
a.                   Deterrence – General: Probably would not be many in that situation
b.                   Deterrence – Specific: would these people do it again
                                       iv.                        Held: Utilitarian view and not sentenced to murder.
d.                  Alternative punishments:
                                          i.                        Shaming: Stigmatizing/Scarlet letter. (i.e. DWI license plate, forcing men to walk down street dressed as women.)
                                        ii.                        Restorative Justice: Interpersonal and social reconciliation. (e.g. dumpers into Dallas water supply could build environmental educational facility instead of jail) Imprisoning costs society $$. Very productive people are sent to prison where they cannot contribute.
e.                   People v. Du: Du owned liquor store and shot victim she thought was stealing orange juice. D’s store had repeatedly been terrorized. Court gave Du probation. Example of judicial mercy.
                                          i.                        7 objectives of punishment:
1.                  To protect society
2.                  To punish the D for committing the crime.
3.                  To encourage D to lead law-abiding life.
4.                  To deter others.
5.                  To isolate the D so she can’t commit other crimes.
6.                  To secure restitution for the victim.
7.                  To seek uniformity in sentencing.
f.                   U.S. v. Jackson: D robbed bank 30 minutes after release from prison. Sentenced to life in prison without parole. 3 prior convictions.
                                          i.                        Court said specific deterrence has failed with Jackson. He must be incapacitated. When parole is forbidden, judge may sentence with indeterminate # of years (i.e. life sentence) or a determinate number of years.
                                        ii.                        Posner, in concurrence, said society should only punish until a criminal is harmless.
g.                   Indeterminate sentences: Judge sets minimum and maximum number of years (i.e. from 2 to 10 years). Once the prisone

s fair warning that an act is punishable as a crime.
                                        ii.                        Ex post facto laws: One “that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action, or that aggravates a crime, or makes it greater than it was, when committed.” – Applies to judicial construction!
                                      iii.                        Notice: in order to have notice there must be fair warning to the meaning and intent of the statute.
                                      iv.                        Court cannot create new crimes just because the Ds actions were atrocious.
i.                    Definiteness: In re Banks:  Peeping Tom statute prohibits “peeping secretly into any room occupied by a female.”
                                          i.                        Fundamental principal: Statutes must be clear and definite, not vague.
1.                  Definiteness should provide fair notice of the prohibited conduct.
2.                  Definiteness should provide a standard of guilt.
                                        ii.                        Eg. of a statute failing this test is one banning optical intercourse.
j.                    Statutory CONSTRUCTION and INTERPRETATION
                                          i.                        Should avoid arbitrary or discriminatory enforcement (selective enforcement) by se.
                                        ii.                        Statutes are presumed to be constitutional.
                                      iii.                        Criminal statutes are strictly construed.
                                      iv.                        Rule of lenity always applies.
                                        v.                        Legislative Intent: Interpretation of a statute is controlled by the legislative intent. Look to indicia (often important to look to legislative intent when a statute is ambiguous):
1.                  Court looks to the statute taken as a whole,
2.                  phraseology, are the words ordinary or technical,
3.                  the law before passage of the statute,
4.                  the mischief to be remedied,
5.                  the remedy,
6.                  the end to be accomplished,
7.                  legislative history, circumstances surrounding its adoption, and common law.
                                      vi.                        Lenity Principal: Criminal statutes must be strictly construed; if a statute can reasonably be interpreted favorably either to the Government or to the individual, the statute should be read in the light favorable to the individual.
k.                  Notice & Vagueness: City of Chicago v. Morales: Chicago City Council enacted a “Gang Congregation Ordinance,” which prohibits “criminal street gang members” from “loitering” with one another or with other persons in any public place.
                                          i.                        Legislative intent ð Reduce street gang activity and its related murder rate and other violent crimes. Reduce fear.
                                        ii.                        4 requirements of the law:
1.                  Police officer reasonably believes at least one of 2 people in a public place is a member of a “criminal street gang.”
2.                  Persons must be loitering (i.e. remaining in one place with no apparent purpose.)
3.                  Officer orders all of the persons to disperse and remove themselves from the area.
4.                  Person(s) disobey officer’s orders.
                                      iii.                        2 reasons for vagueness to invalidate law:
1.                  Fails to provide adequate notice to enable ordinary people to understand what conduct is prohibited.
2.                  Authorizes and encourages arbitrary and discriminatory enforcement.
                                      iv.                        This statute does not define what type of loitering is prohibited. Loitering itself is harmless.