2010_-_Fall_-_JRobertson_-_Criminal_Law_Outline.docx
I. Introduction to Criminal Law
A. What is criminal law about?
1. Criminal law about restraint on individuals and prosecution
B. Burden of proof
1. Burden of production (evidence)
2. Burden of persuasion
C. Beyond a reasonable doubt
1. Qualitative rather than quantitative measurement of doubt
2. Words like “substantial” and “grave” constitute a higher degree of doubt than required for acquittal under reasonable-doubt standard
D. Presumption of Evidence
1. Owens v. State
a) D found asleep behind wheel of car parked in a driveway at night with lights on, motor running, and beer cans strewn about
b) Either he had arrived there or gotten into and started vehicle about to depart
c) Can reasonably be inferred that drinking occurred inside the car from beer cans
d) Not a reasonable hypothesis that one would get into a car under these circumstances just to drink
e) Also reasonable inference that person called police about erratic driving; would not find suspicious someone sitting in own car in own driveway
f) Thus, the alternative that he got in car just to drink is not reasonable, and thus state proved case beyond a reasonable doubt
II. Principles of Punishment
A. Theories of punishment
1. Important questions
a) Why is punishment warranted?
b) What are necessary conditions for criminal liability and punishment?
c) What is appropriate form and severity of punishment?
2. Characteristics of punishment
a) Performed by and directed at agents who are responsible in some sense (ex. Hurricanes don’t “punish”)
b) Involves designedly harmful and unpleasant consequences
c) Unpleasant consequences usually preceded by a judgment of condemnation
d) Imposed by one with authority to do so
e) Imposed for a breach of some established rule of behavior
f) Imposed on an actual or supposed violator of the rule of behavior
3. Difference between punishment and rehabilitation
a) Example: sexual predator laws
B. Utilitarianism
1. Punishment justified by useful purposes punishment serves
2. Bentham’s four circumstances determining individual pleasure or pain
a) Intensity, duration, certainty/uncertainty, propinquity/remoteness
3. Bentham’s situations where punishment should not be inflicted
a) Groundless – no mischief to prevent
b) Inefficacious – cannot act so as to prevent mischief
c) Unprofitable/too expensive
d) Needless
4. Criticisms: overpunishment, underpunishment (see “Incapacitation” below)
C. Deterrence
1. General (deter population as a whole)
2. Individual (deter a specific individual from committing a crime)
3. Depends on nature of offense, type of offender, perceived risk of detection, and nature/severity of penalties threatened or imposed
D. Incapacitation
1. Physically prevent persons from committing future crimes
a) Rehabilitation/Reform – incarceration rarely used today for this
b) Criticisms: overpunishment (punish innocent to better the whole), underpunishment (not “worth” punishing guilty act)
E. Retributive
1. Punishment justified because guilty person deserves it
2. Not just “only the guilty are to be punished”
3. The moral desert of an offender is sufficient reason to punish
a) That future crime may also be prevented is “happy surplus” but not necessary for justification
4. Punish equally those who are equally deserving
5. Moral culpability gives society the duty to punish
III. Proportionality
A. Sources
1. Eighth Amendment – “nor cruel and unusual punishment inflicted” doesn’t appear to apply to non-criminal setting like waterboarding
2. Bentham
a) Punishment should be adjusted for each particular offense so to restrain potential offenders
b) Shouldn’t be more than what is necessary
c) Greater the mischief, greater the punishment
B. Proportionality Cases
1. Coker v. Georgia (U.S. 1977)
a) Coker escapes prison while serving sentences for murder, rape, kidnaping, and aggravated assault; ties up Mr. Carver; rapes Mrs. Carver threatening with a knife; steals car and takes Mrs. Carver with him, though she is found unharmed
b) “A person convicted of rape shall be punished by death or by imprisonment for life, or by imprisonment for not less than one nor more than 20 years”
c) Jury found aggravating circumstances for the rape and sentenced Coker to death
d) Eighth Amendment violation: “a punishment is ‘excessive’ and unconstitutional if it 1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering, or 2) is grossly out of proportion to the severity of the crime
e) Georgia is only state that has death penalty for rape of adult – “legislative rejection”
f) Rape does not compare with murder because no loss of life
g) Because death penalty is “unique in its severity and irrevocability”, it is an excessive penalty and not proportionate to the crime
2. Kennedy v. Louisiana (U.S. 2008)
a) Coker does not in itself bar the death penalty for child rape
b) But, capital punishment not proportional: death penalty should not be expanded to instances where the victim’s life was not taken
c) Retribution does not justify – must look at society’s judgment of the culpability of prisoner to be so serious as require ultimate penalty
d) Enlisting child victim’s testimony to pursue death penalty forces a moral choice on child that is not mature enough to make that choice
e) Deterrence does not justify – fear of death penalty may shield perpetrator from discover because victim & family won’t report
f) If impose death penalty, State removes a strong incentive for rapi
er common law with Christianity mingled in.
a) Dissent: Majority is declaring conduct to be a crime that has not previously been a crime based on broad principles, “potential” results, and encroaches on the legislature’s authority to pass laws deciding which acts to punish criminally.
2. Keeler v. Superior Court – D charged with killing of an unborn fetus under California’s homicide statutes. Supreme Court of California asked to determine if an unborn fetus is a “human being” under the statute. The fetus did not have signs of life (no air in lungs, etc.), so must look to legislative intent.
a) Court found that current murder statute was based on original murder statute based on common law, where a fetus was not considered a human being unless born alive.
b) Since there were no common law crimes, and since only the legislature can define criminal conduct; not up to courts to enlarge statute.
c) Even if court had power to adopt a new construction of the statute, it could only operate prospectively – retroactive changes violate prohibition of ex post facto laws
d) First essential of due process: fair warning of the act – must be sufficiently explicit to inform those who are subject to it what conduct is being punished
e) Legislatures and courts are prohibited from passing ex post facto laws
f) Relevant question: What interests are being protected?
g) Applying rule prospectively solves problem of fair warning but not separation of powers
3. In re Banks – D charged with “secretly peeping into room occupied by female person.”
a) Requirement of definiteness is an essential element of due process: the evils remedied by this element are 1) lack of fair notice of prohibited conduct, and 2) failure to define a reasonably ascertainable standard of guilt – otherwise, unconstitutionally vague
b) Court determines that must interpret laws in light of common law meaning, statutory history, and prior judicial interpretation
c) Words of a statute are not to be deemed redundant if they can reasonably be construed so as to add something to the statute in harmony with its purpose
d) Court determines that statute not so overbroad as to include innocent conduct but was narrowed by requirement that defendant act with wrongful intent as interpreted by courts
