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Criminal Law
Villanova University School of Law
Dempsey, Michelle Madden

Criminal Law
Professor Dempsey
Fall 2013
·         Criminal Law:
o   The principles, doctrines, standards, and rules that govern the infliction of punishment by the State in response to conduct that is defined by the State as wrongful
o   Criminalization of conduct typically signals official condemnation of the conduct by the State
·         Sources of Criminal Law:
o   Statutes – legislature
§  Viewed as more prospective, clear, consistent with principle of legality
o   Common Law – judges
Rule of Law
·         (1) There should be laws (that is, we should live under the rule of laws, not be dominated by the will of the powerful);
·         (2) No person should be treated as if he or she were above the law;
·         (3) Laws should be clearly stated and publicized, so that subjects will know what the laws are;
·         (4) Laws should be prospective, so that subjects may use them to guide their conduct;
·         (5) Laws should not contradict one another;
·         (6) Laws should be created in a way that makes it possible for subjects to conform to what the law requires of them (laws should not require people to do what is beyond their power to do);
·         (7) Laws should be fairly stable (that is, they should not be changed so frequently that it becomes difficult to ascertain what the current status of the law on a particular matter is);
·         (8) Laws should be applied consistently (that is, when applying the laws to particular cases, judges should apply the law as they are written and not warp the meaning of the words so as to reach a conclusions that are inconsistent with the law’s demands)
Justifications of Punishment
·         Retributivist Theories:
o   Criminal punishment is justified, at least in part, because the person who is punished deserves to be punished for his/her wrongdoing:
§  Positive Retributivism
§  Negative (“limiting”) retributivism:
·         Criminal punishment can be justified in virtue of the good consequences it realizes
·         The amount of punishment that can be justified in any particular case is limited to the amount of D’s just desert
·         More of a sentencing theory
o   “Backward-looking” theory:
§  Concerned with what happened in the past – and not concerned with bringing about good consequences in the future
o   Often relied upon to support arguments in favor of proportionality in punishment
·         Consequentialist Theories:
o   Treats consequences as the only (or primary) consideration in determining what is right
o   State is justified in using criminal law and criminal punishment insofar as their use leads to good consequences for society
o   Utilitarianism:
§  Act is morally right if and only if it maximizes utility (happiness):
·         Act-utilitarianism:
o   Focuses on whether a particular act increases (or decreases) utility
·         Rule-utilitarianism:
o   Focuses on whether the adoption and implementation of a particular rule will – over the range of cases to which it applies – increase (or decrease) utility
o   “Forward-looking” Theory:
§  Look forward to the future positive consequences that (so it is argued) will result from criminal law and punishment
§  Deterrence:
·         Criminal law and punishment are justified in virtue of their ability to deter from committing criminal offenses
·         Potential criminals retain the proclivity to commit offenses, but they choose not to do so, based on cost-benefit risk analysis that they will be caught and punished
o   Specific (Prevention) – criminal punishment of a particular defendant is justified in virtue of its ability to deter that particular defendant from re-offending
§  Often the case that subjecting a particular defendant to criminal punishment as a young person will simply increase the likelihood of reoffending
o   General – criminal law and punishment are justified in virtue of their ability to deter other people (people in the community, generally) from committing criminal offenses
o   Widely accepted that some laws (e.g., crimes against shoplifting) do have the ability to deter some criminal activity
§  Rehabilitation:
·         Hoped-for effect of criminal punishment to cause defendants to become better people (“cured of their criminality”), who then choose not to reoffend in the future
·         Fallen out of favor as a justification for imprisonment, on grounds that lead to defendants being incarcerated far longer than they deserved according to principles of limiting retributivism, in an effort to “cure” them:
o   Still see rehabilitation attempts in the criminal justice system in sentences which require defendants to enter drug and alcohol rehab, take anger management courses, etc.
§  Incapacitation
§  Education:
·         Criminal law and punishment can be justified in virtue of their ability to educate society regarding proper standards of behavior
·         proper standards of behavior are more or less shared in the society, and thus the educational effect of law is meant to educate those outliers who have failed to accept societal norms of proper behavior
o   E.g. – Hate crime and domestic violence prosecutions
·         crimin

lates the community’s moral standards
o   Drug use
o   Failing to use a seatbelt or a helmet
o   Attempting suicide
·         Not appropriate for the state to criminalize conduct that does not cause any harm, or that merely harms the defendant
Legal Moralism
·         It is appropriate for the state to criminalize conduct solely on grounds that the conduct violates the community’s moral standards
·         May also harm the community
Offense Principle
·         Conduct that causes offense to others may justifiably be criminalized
·         Widely criticized:
o   Expands the scope of the criminal law to an inappropriately expansive range of conduct
o   Too subjective of a test
o   Argue for more objective standard (is the offense objectively offensive?)
Voluntary Act Requirement
·         MPC 2.01 – No criminal liability unless D performs a voluntary act:
o   No liability for reflex or convulsion
o   No liability for unconscious movement or while sleeping
o   No liability for actions while hypnotized
·         Omission exceptions:
o   If an omission is expressly made sufficient by the law defining the offense
§  E.g. – failure to file tax returns
o   If D has a legal duty to act (“otherwise imposed by the law”)
§  Created by:
·         Statute
·         Contract
·         Common Law:
o   Parent – D parent to child V
o   Spouses
o   D to comes to aid of V
o   D creates risk of harm to V
o   Rationales/Justifications:
§  D chose to assume responsibility for V
§  D created risk of harm to V
§  E.g. – Drug dealer may have a duty to stop someone from shooting up with heroin because dealer supplied the heroin
§  D is particularly well-placed to assist V
§  D is particularly capable of assisting V
§  Other potential aid-givers will assume D will assist V
§  V is especially vulnerable, unable to care for self
o   E.g. – Child drowning at a pool. Who is most likely to have a legal duty to save the child:
§  Lifeguard – contractual
§  Grandma – under CL, possibly contractual as a babysitter
§  Olympic swimmer – no duty