Criminal Law
Professor Kolber, Spring 2010
I. Introduction to Criminal Law
A. The Purposes of Punishment
1. Retribution
a) Presupposes that human beings are moral, responsible, and free to choose between good and bad
b) Those who then choose to harm society are punishable
c) Retribution is an eye-for-an-eye theory
d) Problem arises when we consider whether all actors are really responsible and free to choose between good and bad
e) Problem arises when setting sentences. If someone harms society, society has to harm him or her back under retributive theory. But how does society do so proportionally?
2. Deterrence
a) General deterrence
(1) The impact punishment has on all society
b) Specific deterrence
(1) The impact punishment has on specific criminals
(a) Assumes that the criminal is making a rational decision with correct knowledge of likely outcomes.
c) Problem arises because all people are not rational actors and do not necessarily connect the punishment with crime and weigh the two before acting
3. Incapacitation
a) The theory that when criminals are in jail, they can not commit crimes
b) Problem arises because you can not keep all criminals in jail all the time
(1) Therefore, society has to decide which criminals have to stay and which should go
4. Rehabilitation
a) The theory that criminals should be rehabilitated so they will not commit more crimes upon return to society
b) Problem: only works if the criminal is receptive
B. Sources and Limitation of Criminal Law
1. Common Law
a) Precedent created and enforced by the judiciary in the absence of a statute defining the offense.
2. Statutory Law
a) Clauses
(1) Ex Post Facto
(a) Bars legislatures state and federal from punishing acts that occurred before the legislative proscription was passed.
(2) Bill of Attainder
(a) Bars a legislative act that inflicts punishment or denies a privilege without a judicial trial.
(3) Due Process of the 5th Amendment
(a) Places a burden of proof beyond a reasonable doubt on federal prosecutors.
(b) Bars discriminatory legislation by the federal government.
(4) Due Process of the 14th Amendment
(a) Same as above applied for states. Uses the 4th, 5th and 6th rights applied to states.
(5) Equal Protection Clause 14th Amendment
(a) Bars discriminatory legislation by the states
b) Amendments
(1) 8th- Prohibition “cruel and unusual punishment”
(a) Plays a major role in constraining the scope and nature of death penalty laws.
(b) Set limits on punishments fitting the crime (sentence must be proportionate to the crime)
(c) Ewing v. California – The 8th amendment does not prohibit a state from sentencing a repeat felon to prison term of 25 years to life under the state’s “Three Strikes and You’re Out” law that protects the public safety by requiring incapactitation of criminals who have already been convicted of at least one serious or violent crime. Plurality opinion.
(d) Rummel (life w/ parole in 12 yrs) 5/4 split. 3 prior fraud felony offenses- 230$- court said that he had demonstrated twice that conviction and imprisonment did not deter him.
(e) Solem(life w/o parole) 5/4 split. 6 felonies, none against a person, got caught writing a bad check $100. Court said that was against the 8th amendment, “prohibited a life sentence w/o possibility of parole for 7th nonviolent felony. Gave 3 factors on whether a sentence is disproportionate enough to violate the 8th Amendment:
(i) Gravity of the offense and the harshness of the penalty
(ii) Sentences imposed on other criminals in same jurisdiction
(iii)Sentences imposed for commission of the same crime in other jurisdictions.
(f) Harmelin (life w/o parole, 672 gm cocaine) Single act. 5/4 split. Sentence was not disproportionate.
(2) 13th – Bars slavery and involuntary servitude except as punishment for a crime
(a) Used to prevent imprisonment for debt and set limits on use of convict labor
(3) 1st- free speech and free exercise of religion clause
(4) 4th and 5th- establish procedural rights against unreasonable searches and seizures, double jeopardy and self-incrimination.
(5) 6th- right to trial by jury and to confront witnesses
3. Model Penal Code
a) Although not a source of law, the MPC was a scholarly endeavor to compile a comprehensively coherent body of criminal law. Since its publication in 1962, the MPC has greatly influenc
2. Malum In Se and Malum Prohibitum
a) A crime malum in se (wrong in itself) is one that is inherently evil, either because criminal intent is an element of the offense, or because the crime involves “moral turpitude.”
b) By contrast, a crime malum prohibitum is one that is wrong only because it is prohibited by legislation.
II. The Essential Elements of Crime
A. Actus Reus
1. Background
a) For there to be criminal liability, the defendant must have either performed a voluntary physical act or failed to act under circumstances imposing a legal duty to act. A thought is not an act. Therefore, bad thoughts alone cannot constitute an act.
(1) Proctor v. State – Proctor was charged with “keeping a place” with the “intent to sell liquor,” which was illegal by statute. However, he could not be held liable for merely having culpable mental state in the absence of overt act, e.g. actually selling liquor. The act of “keeping a place” was not illegal itself and was not sufficient to fulfill act requirement.
b) The punishment must be for
(1) Past
(2) Voluntary
(3) Wrongful
(4) Conduct
(5) Specified
(6) In advance
(7) By statute
c) Crime is limited by actus reus because:
(1) There is a need for an objective standard
(2) There are privacy issues with regard to thought
(3) Government power needs to be limited
(4) It is impossible to read others’ minds, and even if it were possible, most people have impure thoughts at some time
(a) It is hard to distinguish between daydreams and thoughts that pose a danger to society (citizens want definite lines between legal and illegal conduct).
(5) Conduct may be deterrable, but thoughts are not.
(6) Respect for individual liberties requires that only acts, not thoughts, be punished.
