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Criminal Law
University of Toledo School of Law
Hamilton, Melissa

I.    Generally:
A.    Criminal law is a system of social control which operates on individuals and issues punishment for actions deemed socially unacceptable. Only important social harms should be punishable by the criminal justice system.
B.   Main Theories of Punishment
1.      Utilitarian: reason to punish is the greatest good for the greatest number
2.      Instrumentalist
a)      Deterrence – more forward looking; looks to causing suffering for criminal and what can be done in the future to stop the crime. One idea of deterrence is that a person is actually weighing the benefits and consequences of their action prior to the behavior. This is not realistic.
a.       General deterrence – punishing an individual today to serve as an example to others and to deter others from committing that crime or similar crimes. (it doesn’t really matter if the person is guilty or not, it’s utilitarian)
b.      Specific deterrence – punishing a person to deter that specific person from committing further crimes.
c.       3 major components: Swift, Severe and Sure. However, there are flaws.
b)      Incapacitation – a person who is punished is incapacitated and is unable to commit more crimes. Used by criminal justice system. The loophole is that people commit crimes against each other in jail, too.
c)      Rehabilitation – More forward looking; looks to causing suffering for c
3.      Deontological: idea of punishment is all about the moral wrong. It is a duty-based idea that if a person is a part of or a member of society and reaps the benefits there are moral duties to each other. This is about backward looking; what harm did this person create and punishment ought to be equal to the crime; not about crime prevention.
a)      Retribution – The duty to restore the moral balance of society (atonement), not a philosophy intent on reducing or deterring crime, but rather eye for an eye painful consequences for a person’s bad behavior. If you do something wrong, society needs to make you feel pain to restore the moral balance. 

Common Law
The first and earliest source of criminal law.
Judges created out of custom, usage, moral values, and concepts of a community built up over many years.
Adoption by judges of these customs or concepts in court decidsions as crimes. Now these rules started to be written, not as statutes but as judges opinions
MPC was an attempt to codify all of the discrete laws and bring them together and fill the gaps.
Laws enacted by the Legislative body. Behind this in part was the philosophy that the rule of which should govern citizens should be representative of what the citizen’s values and community should be.
Common law was mostly converted into statutory laws and abandoned or abolished; but reference to CL continues in states with reception statutes; or if terms are not defined, may look to common law for reference.
Sometimes we have to refer to CL to define terms or to find the purpose behind creating this behavior as a crime.
Every time the legislature creates more crime they create more criminals; Hamilton says the Legislature creates crime – upper white class control

C.   Criminal Statutes – Principle of Legality and Fair punishment
1.      No Ex-Post Facto Laws – no legislative retro-active law making
2.      Nullem Crimen sine lege – no crime without law. Law in place at time person acted
3.      Void for vagueness – prohibits legislative delegation of law-making to courts
4.      Strict construction – rule of lenity (statutory uncertainties resolved in favor of D); this is important historically but is rarely applied today.
5.      Due Process Concerns – the courts cannot go so far as to create an offense by enlarging a statute, by inserting or deleting words, or by giving the terms used false or unusual meanings.

lts – applying speeding laws to fire personnel
8.       Dictionaries – traditional and law
9.       Ejusdem generes (of the same kind) – if there is a list of specific weapons or specific things and general words follow, the general words are to be construed only as to those same or similar types of things as the ones listed.
10.    Expression of one thing is the exclusion of another – if the Legislature creates a list then you can assume its limited to those things on the list unless otherwise articulated.
F.    Approaches to Legislative Intent
1.      Existing Common Law at the time of the enactment –
2.      Title and preamble of the statute
3.      Phraseology/use of general or specialized terms – are there any specialized terms or terms of art or is it terminology that we use in everyday life.
4.      Policy purposes of the statute – what harm is being addressed. What does the legislature say, if anything, about what conduct they want citizens to abide by?
5.      Legislative History – l
6.      Precedent on the general statute – what other courts have interpreted it and what type of interpretations have they had?
7.      Wording of Prior Statute – to the extent that a new statute carries forward language of a prior statute, or if on the other hand a new statute has different wording, we can assume that there is a reason behind the new wording and the Legislature intended to change the wording.
8.      Wording of other statutes – what words do other statutes use and do they mean the same or do they mean something different?