Criminal Law
Paul Robinson | Spring 2017
I. Introductory Materials
The Nature and the Structure of the Criminal Law
MPC
§2.11 – (1) no liability if consent negatives element; (2) can’t consent to serious bodily injury
§2.12 – De Minimis Infractions (defense for trivial infractions)
The Nature of Criminal Law
Criminal liability generally reflects moral blameworthiness à condemnation/punishment
Criminal law requires that the actor’s state of mind reflect culpability – a blameworthy attitude or disposition – as to the offense elements; generally at least recklessness required
Violations do not reflect the same moral gravity crimes
Criminal offenses have traditionally focused on behavior considered bad in itself or malum in se; criminal law has also long recognized offenses punishing conduct viewed as malum prohibitum or “bad because it is prohibited”
Proliferation of these regulatory crimes dilutes condemnatory meaning of criminal liability, thereby damaging its moral force
Law doesn’t want to give defense for consenting to injury b/c the breach of the society’s rules of conduct prohibiting the act serves to justify punishment
Sources of Criminal Law
Nearly every state has a criminal code as its primary source of criminal law.
A minority of states continue to rely upon common law rules
Model Penal Code was promulgated by the ALI and formally adopted in 1962
Has provided basis for wholesale replacement of existing criminal codes in ~ ¾ of states
Contains a General Part w/ provisions that explain how to understand and interpret the various offenses in the Special Part which contains the definitions of specific offenses
Federal code not significantly different from unsystematic alphabetical listing of offenses typical of the original American codes in the 1800s.
In last generation, shift of power away from ad hoc judicial decision-making in individual cases, toward clear ex ante rules governing sentencing (sentencing guidelines)
Partially driven by legality concerns
#2 Fear of the Daggers
Facts
Daggers says Box must cut Bet’s face (Box’s B/F) or Daggers will cut Box’s face. Box becomes very intoxicated and cuts Bet’s shoulder and hand; hand becomes unusable. Bet doesn’t press charges right away, but decides to later
Code
211.1(2)(a). Aggravated Assault
210.0(3) serious bodily injury
2. 02(c) Culpability à Culpability not achieved due to intoxication
2.08(2) Intoxication à Imputed culpability (element of offense)
1.06(2)(b). Time Limitation à No liability despite meeting all elements X
Criminal Law’s Conceptual Structure
Offense Requirements
General Defenses
Prohibited and Authorized Conduct (ex ante)
Objective Offense Elements – Defining the Prohibitions
Doctrines of Imputation
Justification Defenses – describing general justifying exceptions to the prohibitions
Requirements for Punishing Violations (ex post)
Culpability Offense Elements – setting the standard culpability requirements for blameworthiness in violating a prohibition
Excuse Defenses – describing special conditions under which an unjustified (and even culpable) violation of a prohibition may nonetheless be excused
Overview of the Functions of Criminal Law Doctrine
Crim law doctrines integrate three functions; each is necessary for crim law to operate
Rule Articulation: informs members of society, before they act, what behavior is allowed and what is not
Liability Assignment: determines, after the fact, whether a particular person who has engaged in prohibited behavior will be punished as a criminal offender.
Liability Grading: determines how much punishment such an offender should receive.
These three functions are not well tracked by criminal law doctrines; e.g., some offense elements may articulate conduct rules while others express liability-assignment/grading rules
#3 Your Basement Burglar
Facts
Individual grabs gun to shoot intruder in the basement but doesn’t end up doing so; what liability if he had done so?
Code
3.06.3.d.ii
The Legality Principle
“no crime without law, no punishment without law.”
#4 Ray Brent Marsh (PC)
Facts
Marsh had a cremation business. Dumped bodies in his backyard rather than cremating.
Law
Not liable – didn’t deface (strict construction)
31-21-33.1.a
16-1-4.
State v. Bradbury
Code
250.10. Abuse of Corpse.
2.02(b) Culpability – Knowingly
1.05 Purpose à MPC does not allow for application of the common law
MPC
§1.02(3) – Rule of Strict Import
§1.05 – All Offenses Defined by Statute; Application of General Provisions to the Code
§250.10 – Abuse of Corpse
Overview of the Legality Principle
The Doctrines
Abolition of CL crimes and prohibition of judicial creation of new offenses §1.05(1)
Prohibition Against Vagueness: statute must give “sufficient warning that men may conform their conduct so as to avoid that which is forbidden.” Rose v. Locke. Rooted in DPC.
Provision vague if it doesn’t adequately define prohibited conduct. If provision defines conduct w/ some specificity, yet is subject to two or more interpretations, it’s ambiguous
Rule of Lenity/Rule of Strict Construction: Resolve Ambiguity in Favor of Defendant
Modern trend to ameliorate strictness of rule by replacing it w/ rule of fair import, which holds that statutes should be given most natural/reasonable reading
Ban on Ex Post Facto Laws: constitutional ban (I§9) has been interpreted to invalidate laws criminalizing previously lawful behavior, and laws that aggravate the punishment for a crime
Calder v. Bull, SCOTUS (1798): prohibition against ex post facto laws only applies to criminal laws, has no effect with respect to civil laws. Following are ex post facto laws:
The Rationales
insure notice of what is a violation, providing procedural fairness
avoid over-deterrence, as in “chilling” protected speech
increase uniformity in adjudication, decreasing unjustified disparity
reduce the potential for abuse of discretion by executive and judicial officers
avoid de facto delegation of the criminalization authority to the judiciary, preserving for legislative branch (the most democratic branch)
Countervailing Interests
failure to do justice
as specificity increases, the potential for “technicalities” and inflexibility also increase, undercutting the law’s moral credibility and its crime control effectiveness (see Report of Axis War Criminals Prosecutor for illustration of the potential difficulties if one were to strictly adhere to a legality principle)
Legality in Context
In assessing whether to impose liability and what general grade to impose, crim law follows fixed and specific rules that allow little discretion; the legality principle is well respected.
But in the determination of an offender’s specific sentence, has long been common to have few or no rules and broad judicial discretion; traditional legality principle statement suggests it is equally applicable to sentencing.
If distribution of punishment is discretionary at sentencing stage, society has benefitted little from the strict adherence to legality at the liability-assignment stage
Rationales of the principle would have rules of conduct formulated to maximize procedural fairness and effective deterrence and to minimize over-deterrence of protected activities
Rationales of the principle
ses”
Under subjective standard, potentially no liability à Marsh didn’t “know” others would be offended
Common denominators of list in statute wouldn’t include Marsh’s behavior
Should the Criminal Law Recognize an Exception to the Legality Principle When the Crime is Serious?
Report the President from Justice Robert H. Jackson, Chief of Counsel for the U.S. in the Prosecution of Axis War Criminals
Yes. Believes an outcome of the war must be “rules from which any who might contemplate another era of brigandage would know they would be held personally responsible and be personally punished.”
Wants to give criminal “recognition to those things which fundamentally outraged the conscience of the American people.”
“Those acts which offended the conscience of our people were criminal by standards generally accepted in all civilized nations, and I believe we may proceed to punish those responsible.”
“We should establish that a process of retribution awaits those who in the future similarly attack civilization.”
Gerry J. Simpson, Didactic and Dissident Histories in War Crimes Trials
No. Trials are always fraught w/ gravest moral implications for the accusers. Meanwhile, the law usually is an accomplice to ideology, sometimes an enemy justice, and always the narrator of a series of complex and deeply ambiguous stories.
Most serious objection to war crime trials deals with legality and procedural fairness.
War crimes suffer from vagueness deficiencies; no systematic definition of international criminal law; even definition of war crime has given rise to proliferation of meanings
Absence of clear standards or precedents.
Ex post facto application of alien law to acts the criminality of which was not at all obvious at the time the acts were carried out.
Thomas Paine said “he that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.”
Should Criminal Statutes be Interpreted Using a “Rule of Lenity”?
Dan M. Kahan, Lenity and Federal Common Law Crimes
No, it creates an ineffective and inefficient distribution of authority between legislatures and courts, and creates inappropriate incentives for those governed by criminal statutes.
Lenity is unnecessary to assure the fair and predictable administration of criminal justice.
Rule substantially raises the cost of criminal law while reducing its effectiveness
Denies congress freedom to legislate generally, need more costly, specific legislation
Congress would become over-burdened trying to fix code while filling other roles
Objective of enhancing compliance with criminal law fails to support the rule of lenity
Actor who believes a statute will be construed narrowly is more likely to engage in that prohibited conduct than if it were construed broadly.
Could argue lenity enhances compliance only if it could be shown to promote the adoption of clear rules over ambiguous ones.
Lenity would allow criminals to find gaps in the law where they can commit an outlawed harm in a non-outlawed way.
