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Criminal Law
University of Toledo School of Law
Harris, David A.

Criminal Law

Principles of Punishment
THEORIES OF PUNISHMENT
Utilitarian
i.      Characteristics
1.      Another way of labeling this:
a.       Consequentialism (the ends of punishment, not the means)
2.      It’s aim:
a.       Crime prevention/deterrent value (assuming people are rational)
3.      Kinds of deterrence
a.       Specific – applies to the D (if the D is in jail, he can’t commit a crime)
b.      General – Citizens will learn from the punishment of others and not commit the crime
4.      Why do we care about deterrence?
a.       We want to maximize our happiness (utility) as human beings
b.      The best way to do that is to deter crime
c.       Punishment is only useful if it deters crime; if it doesn’t work, you shouldn’t punish
5.      Forward looking
6.      Community focus
7.      Calls for strict proportionality between crime and punishment
8.      Based on perception and is relative
9.      It may be ok to punish an innocent person for a greater good
ii.      Criticisms:
1.      Good as theory, but difficult to implement in practice
2.      Unfair to use criminals as examples to the community (isn’t it enough that they served their time?)
3.      It’s never ok to punish an innocent person
Retributivism
i.      Characteristics
1.      Another way of labeling it:
a.       Lex Talionis (“eye for an eye”) (“just deserts” – you get what you deserve)
2.      Aim:
a.       Punishing the offender for the crime they committed and making them pay their debt to society
3.      Backward looking
4.      Individual focus (not community)
5.      There should be proportionality between crime and punishment (eye for eye)
6.      Never punish an innocent man
7.      Deterrence is not valued
ii.      Criticisms
1.      Too much focus on individual
2.      Too much encouragement of hatred
3.      Economically inefficient (even if it is the last person on earth, he should pay his debt, even if this erases society)
Theories of punishment in action
i.      Specific examples:
1.      Drug offenses (with mandatory minimums)
a.       Congress enacted these because they thought the juries were not sentencing harshly enough
b.      No more mandatory minimums now
c.       How to justify:
i.      Utilitarian – it is justified because it sends a message to society that drug offenses will not be tolerated
ii.      Retributive – Not justified, because it’s not proportional
2.      Sexual Predator laws
a.       Megan’s law – mandatory registration requirements for anybody convicted of a sexual crime
b.      Controversy – has ex poste facto component to it
c.       How to justify:
i.      Utilitarian – The law is not passed to punish offender, but to protect society
ii.      Retributive – unnecessarily punitive; the people have already served their time, why impose upon them another penalty?
3.      Three strikes laws
a.       If you are convicted of a felony 2 times and you commit a felony a 3rd time, you automatically get 25 years to life
b.      How to justify:
i.      Utilitarian – If you don’t punish the person, they will continue to commit crime (assumes that punishment is going to deter the person committing the crime)
ii.      Retributive – The more you commit crime, the bigger debt you have to pay to society (regardless of the nature of the crime)
4.      Shaming penalties
a.       Alleviate the clogged prison system
b.      May lead to mob violence
c.       How to justify:
i.      Utilitarian – They set a visible example to the community of what not to do
ii.      Retributive – May be excessive if they lead to mob violence and is unfair
5.      Death Penalty
a.       Legal in 38 states
b.      How to justify:
i.      Utilitarian – deterrence to society and specific deterrence
ii.      Retributive – justified because of “eye for an eye” theory


Modern Role of Criminal Statutes

PRINCIPLE OF LEGALITY
Two questions:
i.      Why do we care how judges interpret criminal statutes?
ii.      Does restrained limited judicial discretion lead to effective outcomes with respect to society?
1.      Restrained limits benefits D
Criminal Statutes: Basic Principles
i.      Legality Principle
1.      Requirement of previously defined conduct
a.       Commonwealth v. Mochan (limits of judicial lawmaking)
i.      Mochan committed a crime for solicitation, but there was no solicitation offense in the statutes
ii.      Court says the potential of the common law to encompass a crime is enough to convict someone for it
iii.      Three levels to decide whether something is a crime:
1.      Statutes
2.      Common Law (actual)
3.      Common law (potential)
iv.      There are no common law crimes anymore (this case is old and no longer followed)
b.      Keeler v. Superior Court (limits of judicial interpretation)
i.      Begins to address limitations to judicial interpretation
ii.      Highlights when courts rely on the common law to define crimes
iii.      Keeler kicked a pregnant women in the stomach and killed the fetus; Court had to determine whether a viable fetus = human being (to be able to convict for murder)
iv.      Even though most jurisdictions have abolished common law crimes, the common law still plays a crucial role in defining common law crimes
1.      favors defendants
v.      Court tries to determine legislative intent as to the meaning of human being by:
1.      Legislative history (if any)
2.      Prior Courts (how they interpreted the issue)
3.      Common law rule
2.      Statutory Clarity (no vague statutes)
a.       City of Chicago v. Morales
i.      Stands for “no vague laws”
ii.      Criminal loitering statute
iii.      Statute does not sufficiently define loitering (what is prohibited and what is allowed?)
ii.      Statutory interpretation
1.      United States v. Foster
a.       Statute at issue adds a penalty for using or carrying a firearm for certain crimes
b.      Court interprets what “carry” means by using:
i.      Prior cases
ii.      Dictionary
iii.      Legislative intent
iv.      Rule of Lenity (criminal statutes must be construed narrowly in favor of defendant)
c.       ON EXAM: If asked what the defendant might be charged with and his possible defenses:
i.      First possibility is that the law is unconstitutional to begin with because it is vague
iii.      No overly vague criminal laws!


Actus Reus

ACTUS REUS (bad act – the criminal act itself)
Actus reus = a voluntary act or omission (along with any attendant circumstances) that results in harm (either to the individual or to society at large)
Conduct
i.      Present in all actus re

                                                                       i.      Conduct – starting a fire or causing an explosion
1.      Mens rea level – silent (doesn’t say)
ii.      Result – destroying
1.      Mens rea level – must be done purposefully
iii.      Attendant circumstance – structure is occupied; that it’s a structure or a building; that it is somebody else’s
4.      Definition of Mens Rea Terms:
a.      Purposely (conscious objective)
i.      Conduct/result = conscious objective to engage in conduct of that nature (i.e. intentional)
ii.      Attendant circumstance = aware of circumstances or believes or hopes they exist
b.      Knowingly (awareness)
i.      Conduct/Attendant Circumstance = awareness
ii.      Result = awareness or practical certainty that result will occur from conduct
iii.      Ex: Incest (p. 1043)
1.      Person guilty of incest. . . if he knowingly marries or cohabits or has sexual intercourse w/ancestor or descendant, a brother or sister of the whole or the half blood…
2.      Conduct = marrying, cohabiting, having sexual intercourse
a.       Have to be aware that they are doing these things; not hard to prove
3.      A/C = have to commit the conduct with certain family members
a.       Have to be aware that they are committing the conduct with any of the family members listed
c.       Recklessly & Negligently
i.      (1) degree of risk involved
ii.      (2) how to characterize risk involved
iii.      Recklessly
1.      (1) Conscious disregard of a substantial and unjustifiable risk that conduct will cause that result
2.      (2)The kind of risk that is a gross deviation from the standard of conduct that a law abiding person would observe in the actor’s situation
3.      Ex: Man on subway; kids approach. He thinks they’re threatening him and that they might have a gun b/c he’s been robbed at gunpoint in the past on the subway. So he shoots and maims them
a.       He was consciously aware of the result that would happen
b.      It’s the kind of risk that a normal person wouldn’t take in his situation
iv.      Negligently
1.      (1) actor should have been aware of a substantial and unjustifiable risk that his conduct could lead to some result but was not
2.      (2) the kind of risk involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation
3.      Ex: Parents, with IQ of fifth grader, have baby. Baby suffering from infection that gets worse and worse; has fever of 105 degrees
d.      Willful blindness
i.      Modifies definition of awareness to awareness of a high probability (lower standard; easier for prosecution to show the D was aware of a high probability than that they were actually aware of)
Strict Liability Offenses