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Criminal Law
Villanova University School of Law
Chanenson, Steven L.

Criminal Law

Prof. Chanenson

Fall 2015

Stuntz & Hoffman

The Character of Criminal Law

A. Who Defines Crimes? —Role of Courts and Legislatures

· Historically = Courts, development of “common law”

· Modern = Mostly statutes; courts interpret those statutes

1. Notes on Purposes of Criminal Punishment

o Deterrence (Economic)

§ Crime is socially destructive, such behavior is reduced by raising the price one must pay for engaging in that behavior; deter from committing criminal acts with punishment

· Specific: Deters the actor from committing that act

· General: Deters other people from committing that act

o Rehabilitation (Psychiatric)

§ Criminal punishment not to punish offenders, but to treat them so that they can keep their noses clean upon release; “curing” criminal tendencies

o Retribution (Moral)

§ Punishment is morally right and deserved by those who commit crimes

o Incapacitation

§ Incarceration keeps people from committing crimes; severe example = death penalty

o Education

§ Expressive, communicative; shift social norms—educates people about what is wrong

o Mixed Theories

§ More common today to use a mixture of theories


§ Regina v. Dudley & Stephens: Men stuck in boat ate crewmember in order to survive. Convicted of murder, no legal justification for homicide. (What is the purpose of punishment?) Sentence later commuted by Queen Victoria.

B. Proportionality and Vagueness

· Proportionality

o Issue arises when punishments are “grossly disproportionate” to crimes committed

o Severity of crime and punishment must correspond

o Claims are toothless, except in some death penalty cases


§ People v. Kellogg: Homeless man convicted of public intoxication. Kellogg argued this was cruel and unusual—he couldn’t be convicted based on his status. Court said it was his conduct, not his status; he posed a hazard because he was near a freeway embankment.

§ Robinson v. California: Cruel and unusual to impose criminal liability on a person for merely having a disease of addiction; cannot criminalize a status.

§ Powell v. Texas: Declined to extend Robinson to a chronic alcoholic convicted of public intoxication because D wasn’t convicted because of his status, but rather his behavior.

· Vagueness/Void for Vagueness Doctrine

o Excuses D from criminal liability if the crime charged is so vaguely defined that “[people] of common intelligence must necessarily guess at its meaning”

o Vagrancy and loitering laws are known to be vague


· Nash v. United States: Charged under Sherman Antitrust Act. Argued it was vague. Court held there was no constitutional difficulty in enforcing Act because one could reasonably infer what actions are prohibited.

· Gary v. Kohl: Gray passed out Bibles in front of school. He was arrested after taking all necessary precautions; not convicted. Sued for violation of 14th Amendment. Argued statute was vague. Granted in part, words “legitimate business” were too broad.

· Chicago v. Morales: Vagueness may invalidate a criminal law for two reasons: (1) it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits, and (2) it may authorize and even encourage arbitrary and discriminatory enforcement

II. Defining Criminal Conduct

A. Voluntary Acts That Cause Harm

· Conventional definition of crime: Crime is a voluntary, affirmative act that causes harm

o In general, no one can be convicted for failing to act, and no one can be punished for conduct not freely chosen (i.e., no liability for a reflex/convulsion, seizures, etc.)

o BUT, can sometimes be liable for omission if explicitly stated in the law; example: failing to file income taxes

o Martin v. State: Man drunk in home, police found him and took him to a public place and charged him with public intoxication. Can’t be punished for an act that isn’t voluntary.

B. Interpreting Conduct Terms in Criminal Statutes

1. Greater and Lesser Crimes

· Punishment doesn’t depend on how much harm is done, it depends on the seriousness of the crime as defined by statutes

· The elements of the crime are included in a more serious crime, but the more serious crime has more elements

· Anti-merger Rule: Can’t be convicted of all lesser included offenses

o Murder v. Aiding and Abetting Suicide

§ People v. Mattlock: Active/passive distinction. If active role

= Conduct vs. Status

o Can punish a person for their conduct, not their status – i.e. alcoholism, drug addiction.

o Powell v. Texas: Homeless alcoholic properly convicted under statute prohibiting being drunk in public because D was punished for the act of being drunk in public, not for the status of being an alcoholic.

· Limited scope of Robinson v. California to cases where statute attempts to punish addiction itself – behavior resulting from addiction is still punishable.

= Omission Liability

o No criminal liability to failure to act UNLESS:

· Statutory Legal Duty – Good Samaritan statutes

· Special Relationship

§ Parent-Child

§ Creation of Peril

§ Undertaking

· Contract – Lifeguards

o Justifications/Rationales Courts Typically Use When Imposing a Duty to Act:

· D chose to assume responsibility for V

· D created risk of harm to V

· 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

· Rationales/Justifications underpinning common law duties:

§ D’s choice which created risk/need for aid (parents’ choice to procreate – but obviously not relevant in cases of rape)

§ D’s choice to accept responsibility for caring for V (by not giving child up for adoption, parents

§ Fact that D is well-placed to assist V (typically parents live with their young children, are aware of their needs, etc. – parents, esp moms, are perceived as being particularly competent caregivers to their young)

§ Fact that V is vulnerable/needs help from someone (especially relevant with respect to babies)

§ Fact that other potential aid-givers will tend to refrain from interfering, based on assumption that D will give any appropriate aid (social norms around parenting lead people to assume parents, will care for their children)