Criminal Law
Paris
Spring 2015
Principles of Punishment
· Theories of Punishment
o Criminal law: a system of social harm that are punishable by the government. Different than torts in that the violator is punished rather than just compensate the victim with money. Punishment belongs to the State through the criminal justice system. With the conviction of a crime there is a label out on the criminal that leaves a stigma on the person and certain rights are taken away when committing crimes.
o Defining crime: Statutes define crime, can be outside criminal code, can’t be a crime if it is protected under the Constitution
o No crime unless it is define in a statute
o Why do we have a system that punishes people? what do we hope to serve when punishing people? what gives us the power to punish people?
§ We punish people to achieve certain goals (forward looking approach)
§ To make right a moral wrong (backward looking approach)
o Who should be punished? How do we define crimes?
o How much punishment is appropriate?
o Utilitarian Justifications
§ Laws should be used to exclude all painful and unpleasant events (crimes and punishment)
§ Functions: educative/notice, deterrence (assume people are rational), rehabilitative (assuming that correcting someone will fix the problem), incapacitation (assumption that the person will commit another crime in the future)
§ Purpose is to reduce future crimes
§ “rational calculator”: balance between expected benefits of committing the crime against the risks taking into account detection, conviction and severity of punishment
§ General deterrence: D’s punishment is an object lesson to the rest of society, instills fear of punishment in would-be violators
§ Individual deterrence: D’s punishment deters D’s future misconduct, provides a reminder for D
§ Incapacitation: D’s imprisonment prevents him from committing crimes
§ Rehabilitation: use of a correctional system to reform the wrongdoer rather than punishment, critics says that not everyone is curable yet very religious base approach
§ Criticism: ignores dignity and rights of the wrongdoer (counter: wrongdoer is a member of society and therefore benefits from his own punishment), justify punishment of a person known to be innocent of wrongdoing (counter: misunderstanding of the application of punishment), the punishment doesn’t fit the size of the crime
§ Example: Regina v. Dudley and Stevens: men convicted of murder for cannibalism , Dew: mistake of fact, both criminals put on probation
o Retributive Justifications
§ The wrongdoer should be punished whether or not it will result in a reduction in crime
§ Punishment is justified when it is deserved
§ Criminal system does not allow punishing people unless they are guilt of a crime
§ Limits punishment to the appropriate amount
§ Looks backward in time at the voluntary commission of the crime
§ People possess free will or free choice
§ Assaultive retribution, Public vengeance, Societal retaliation: the criminal has harmed society and therefore it is right to hurt him back, based on public vengeance
§ Protective retribution: a criminal destroys the moral balance in the society, punishment permits the offender to pay his debt to society and to return to it free of moral guilt
§ Victim vindication: the criminal elevates himself believing his rights and desires are greater than the victim, punishment corrects this false claim
§ Criticism: infliction of pain with no future benefit is senseless and cruel (counter: punishment is proportional to the crime), glorifies anger and not reason (counter: anger is a morally proper emotion, demonstrates our awareness that the criminal has violated our rights)
· The Penal Theories in Action
o Who should be punished?
o How much punishment should be imposed?
o Utilitarianism
§ Punishment must not be less than required to outweigh the potential profit to the criminal of committing the offense
§ The greater the mischief of the offense, the greater I the expense, which it may be worth while to be at, in the way of punishment
§ Grade offenses in a manner that will induce a person to choose always the least mischievous of two offenses by making sure the punishment of the greater offense is sufficient enough to induce the man to prefer the lessor crime
§ Punishment should induce the criminal to do no more required than what is necessary for his purpose
§ Punishment ought in no case to be more than what is necessary to bring it into conformity with the previous rules
§ Difference to retributive: punishment is linked to predictions of future harm and the extent to which the undesired conduct is deterrable. Punishment is undesirable unless it will result in a net benefit to society. Example: deterring drunk driving
§ Example: Gementra: public shaming in front of post office, psychological damage with goal of humiliation yet higher court allowed it because of the addition classes required.
o Retributivism
§ Doesn’t believe “an eye for an eye”
· Exception: murder with the punishment of death
§ Harm component: looks backwards at the crime and determines what harm (physical, economic, psychological) generally results from the commission of the offense in question
§ Blameworthiness component: consider if the criminal acted with intention or negligence. Balance punishment based on the criminals state of mind, rational or insane.
§ Difference to utilitarian: seek to proportion punishment to the offense already committed without consideration of future harm. Punishment for wrongdoing is morally right
· Proportionality of Punishment
o Constitutional Principles
§ Death Penalty along 3 lines of thought
· U.S.: 8th Amendment: “cruel and unusual punishment”
· OR: Article I: “cruel and unusual punishment and all penalties shall be proportioned to the offense”
· Coker v. Georgia
o Escape from prison, committed rape several times, was sentence to death, appeals court reversed based on retributivist view, death penalty for rape is unproportional
§ Terms of Imprisonment
· Rummel v. Estelle
o Third felony but was able to go on parole rather than prison
· Solem v. Helm
o Third felony, sentence of life in prison, violated 8th Amendment, created three part test
o Sentences given to others in similar crime and location
o Look at other jurisdiction and see what they are doing to punish this crime
o Willing to overturn sentences if we believe to the sentence is disproportional
· Harmelin v. Michigan
o One felony
o Sentence for life of prison
o Offense was more serious, possession of cocaine, evidence lead to him being a dealer
o Not in violation of the 8th Amendment
o Won’t apply test unless there is a threshold is met
o Threshold: that the sentence has to be grossly on its face to be disproportionate
· Ewing v. California
o Committed 3 felonies, third one was stealing golf clubs, court sentence him 25 yrs/life imprisonment because it was too politically dangerous to go against statute.
§ Oregon Rules
· State v. Rodriguez, State v. Buck
o Both sexual assault crimes but very minor, short, brief contact
o 6.25 yrs was too much for the crime, court reversed appeals court ruling.
o Look at the relationship of the crime and the penalty
o Factor 1: Court looks to Wheeler and determines that application of the proportionality provision requires consideration of the relationship between the gravity of the offense and the severity of the penalty
§ Retributive view
o Factor 2: comparison of the penalties imposed for other, related crimes
o Factor 3: the criminal history of the defendant
o A defendant’s offense under Article I is the specific defendant’s particular conduct toward the victim that constituted the crime as well as the general definition of the crime in the statute
o Penalty shocks the conscience of reasonable people
o These are rare situations when the penalty is disproportionate to the offense
o Constitution has higher authority than statutes
Modern Role of Criminal Statutes
· Principle of Legality
o The Requirement of Previously Defined Conduct
§ Ex Post Facto
· No crime without law. No punishment without law. U.S. Con Article I, no federal or state ex post facto law can be created also see OR Con Article I
· Ex post facto law: people can’t be convicted of a crime or have an increase punishment for an old crime, a crime that happen in the past.
· When making the argument start with OR Constitution, see Constitutionalism above
§ Legality definition
· A person may not be punished unless her conduct was defined as criminal before she acted
· To properly prosecute and punish a person, there must be an applicable criminal law in existence at the tim
the presumed fact.
· Presumption makes it easier for P with burden of proof to persuade fact finder
§ Mandatory Presumptions
· Rebuttable Presumptions
o Requires a finding of the presumed fact upon proof of the basic fact, unless that finding is rebutted by the opposing party
o Shifts the burden of proof to defendant to proof that fact B did not occur
o rebuttable mandatory presumptions are unconstitutional when the presumed facts is an element of the crime charged
· Irrebuttable Presumptions
o Requires the jury to find the presumed fact upon proof of the basic fact even if the opposing party introduces rebutting evidence
§ Permissive Presumptions
· A fact finder MAY find the existence of the presumed fact upon proof of the basic fact
· Permissive presumption is a logical bridge between one fact believed to be true and a second fact the truth of which is at issue
· There has to be a rational connection between the two facts
§ Model Penal Code
· MPC does not recognize mandatory presumption
§ Permissive presumption is triggered unless the presumption is so lacking in foundation that the defendant is entitled to a directed verdict on the matter
§ Example:
· Muscarello
o “carries a firearm” includes to a person who knowingly possesses a firearm in a locked glove compartment, not limited to on the person. “carry” can be any transportation either by wagon, car, etc. no rule of lenity as the court has come to a decision on the term “carry a firearm” (really? 5-4 decision). Very loose interpretation.
· Proof Beyond a Reasonable Doubt
o In re Winship
§ Natural product of the Due Process Clause
o Jury instructions
§ Typically confusing for juries
§ Always include BRD language
§ Court not required to define BRD to jury
§ Qualitative standard, subjective state of near certainuted
· Oregon Rule
o Proof Beyond a Reasonable Doubt
§ Burden on the State to prove guilt of defendant beyond a reasonable doubt or to a moral certainty
§ ORS 10.095
o Statutory Interpretation
§ Courts interpret law not make law, under OR Constitution Article III, section 1
§ Focus on legislature intent that enacted the operative words or provision either by looking at other statutes, context within the statute, dictionaries, common law
§ Gaines test
· Combined step 1 and 2 in PGE
· court first looks at the text in context then if useful legislative history
· then general maxims are consulted
§ PGE test
· Relevant statutory text as the “best evidence” of legislature intent along with context (dictionaries, literature, surrounding statutes, public views at the time legislature wrote statute)
· Courts then considered legislative history (House and Senate records) to inform the court’s inquiry into legislative intent
· Then the courts considered nontextual maxims of statutory construction to ultimately resolve the ambiguity
§ Ambiguity? Multiple meanings or interpretations
§ No rule of lenity in OR, OR rule is that statutes have to be construed as fair meaning
§ Bailey v. Lampert
· D was convicted for felon in possession of a firearm. His felon conviction was removed. D wants his in possession conviction remove too. “has been a convicted of a felony” is defined as at the time of conviction for an offense, that offense was a felony under the law at the time of possession of firearms. Statute is abundantly clear. Very tight rule of statutory interpretation in Oregon.
