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

Criminal Law


Fall 2016

Theories of Punishment:

mala prohibita : wrong because it is prohibited

mala in se: wrong within itself
(moral and philosophical theory)—believe that punishment is a moral good because the crime is a moral wrong
(economic or empirical theory)—look to social costs and benefits: crime is socially destructive and this behavior is best reduced by raising the price those engage in such behavior must pay

(medical or psychiatric theory)—seek to use criminal punishment as a form of treatment so that they don’t engage in criminal behavior when they are released.

psychiatric: we use punishment to treat, not punish offenders

the hoped-for effect of criminal punishment, according to people who endorse a consequentialist theory of punishment (claims that criminal punishment can cause D not to become better people) who then choose not to reoffend in the future.
is not entirely in favor as a justification for imprisonment because it leads to D being incarcerated far longer thanthey deserved according to limited retributivism
can still see rehabilitation attempts in the criminal justice system in sentences which require to enter rehab, take courses, etc.

with rehabilitation and education: defendant are reformed and realize the error of their ways and they no longer have the desire to offend or are able to think better of it.


effect of a sentence in positively preventing rather than merely determining future offenses
take out of society by either locking a person up or imposing the death penalty

Theories of Punishment

– maximize social welfare/happiness. punish loss liberty and life to the extent to make society happier/improve welfare.

his is done through deterrence (also reference sentencing and punishment section)

deterrence à criminal law and punishment are justified in virtue of their ability to deter from committing criminal offenses

economic – social costs and benefits – crime is socially destructive behavior is best reduced by raising the price of those who engage in such behavior.
general deterrence à the view that criminal law and punishment are justified in virtue of the ability to deter other people from committing criminal offenses
specific deterrence à the view that criminal punishment of a particular D is justified in virtue of its ability to deter that particular defendant

with deterrence: potential criminals retain the tendency to commit offense but choose not to do so based on benefit risk analysis that they will be caught and punished.

– moral theory that says that we should only punish to the extent that there is wrongdoing. Punishment is justified because it is morally right/good because the crime is a moral wrong. this involves proportionality of the punishment to the crime committed.

claims that criminal punishment is justified because the person deserves to be punished for their wrongdoing
categorical imperative à do onto others as you would have them do.
it criticized as a backward looking there because it is concerned with what happened in the past and is not concerned with bridging good consequences in the future.
limiting retributivism, which is dominant theory today. It limits the punishment and you have to do something very bad to warrant the maximum sentence.

sets an upper and lower limit of punishment in every case based on what the defendant deserves.
supports proportionality in punishment.

Expressive Theories of Punishment/changing social norms

condemnation of moral wrong doing
moral education
social norm transformation

large sentencing for hate rimes
drunk driving
making things worse based on societal views

hate crimes, view of justice

Statutory Interpretation (Ch. 2b):

Legislatures and judges share this power. The goal of statutory interpretation is to determine the intent of legislatures that enacted the statute in question

Look at the language of the statute

If it is unclear, look at the legislative history – official record of proceedings relating to the bill as it moved its way through the legislature
Structural evidence: examine more broadly overall statutory framework within which statute of Q resides- where it fits and how it is interpreted – may reveal structural evidence of the legislatures intent
Statutory framework à may reveal structural evidence of the legislatures intent

The goal of statutory interpretation is to determine, to the extent possible, the intent of the legislature that enacted the particular statute in question. The particular legislature that existed at the time of statutory enactment whose intent matters the most.

Apply the Rules of Construction àthese come into play when language, history, framework has failed. Judges based on assumptions of what the legislature means develop these.

Expressio unius, exclusion alterius: inclusion of one thing implies the exclusion of the other. Items in a statutory list are presumed to be exclusive and any items not mentioned are presumed to be included.
Ejusdem generis: of the same kind, class or nature. The “other stuff” has to be interpreted by the judiciary. General items listed in a statute should be interpreted in light of any specific items included in the same list.
Constitutional Ordinance: statutes should be interpreted in such a way to avoid constitutional concerns.

Causing Harm: The majority of criminal statutes do not require proof that the defendant caused anything instead; criminal statutes require proof of specified conduct and of a particular mental state.
Harm Principle: the only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others.
Martin v. State à the defendant was drunk in his home where police arrested him and took him to public highway after which he was charged with public drunkenness. The court held that the accusation of drunkenness in a designated public place cannot be established by the proof that the accused, while intoxicated, was involuntarily and forcibly carried to that place by the police.
In Re Winship à prosecution must persuade the fact finder beyond a reasonable doubt of “every fact necessary to constitute the crime charged.”
Greater and Lesser Crimes à defendant may convict of any crime within the crime charged by the prosecution. This matters because of the punishment/sentencing. The prosecution usually focuses on what interpretation would be best for society as a whole.

The degree of criminal defendants punishment does not depend on the measure of harm D caused à many crimes cause no harm at all, rather the measure of punishment depends primarily on the seriousness of the crimes the defendant committed, as determined by the legislature that enacted the relevant statutes.
In Re Joseph G- this case involved an assisting suicide statute. 2 minors made a suicide pact, which was partially filled when his friend died after Joseph G drove the car off a cliff. The court looked to the Matlock case for the distinction between and active and passive role in the suicide. The court held that although Joseph G had an “active role” in the suicide, the Matlock case didn’t involve a suicide pact so this principle doesn’t apply and this case is distinguished from Matlock. The court held that it was a genuine suicide pact with the same instrumentality at the same time is not considered murder.

Key to distinguish murder and aiding and abetting suicide is whether D had an active or passive role in assisting with the suicide.
—strangled friend when he asked after friend committed robbery and didn’t want to have to forfeit his insurance policy by suicide.

Whether the act as of “simultaneou

ment – correspondence between the severity of the crime and the severity of the punishment.It is also used to regulate the imposition of the death penalty for certain crimes and criminals.
There is no death penalty for:

Rape, rape of a child
Δs who don’t actually kill or extreme recklessness when involved in a homicide because there is not enough moral culpability even though their crime was bad
Δ’s that are intellectually disabled when they committed the crime
Δs who are minors when the crime was committed

Non-capital Proportionality

Mandatory life without parole for juveniles cannot be imposed

The 8th amendment does not require strict proportionality. It forbids only extreme sentences that are “grossly disproportionate.”

Life without parole for less that 1.5 lbs. of cocaine
Mandatory life without parole for murdered committed by juveniles.

Vagueness (Void-for Vagueness Doctrine): (Under the DPC) requires that crimes be defined with enough precision to inform potential offenders how to avoid criminal punishment—NOTICE.

Void for vagueness-doctrine that excuses D from criminal liability if the crime charged is so vaguely described that people of common intelligence must necessarily guess at its meaning. (Connally case)
Crime cant be defined arbitrarily
Crime cannot invite discriminatory enforcement.
There are 2 prongs to invalidate a vague statute: 1) there is failure to provide notice and 2) arbitrary and discriminatory enforcement.

Unfairness to individuals who are trying their best to conform to the laws requirements
Statutes that are so overbroad that they invite discriminatory enforcement.

Nash v. United States (1913)- the court had to determine whether the statute was sufficiently clear. The court held that a statute defining things in terms of “reasonableness” does not make the statute vague.
Connally Case- the defendant prevailed in the case. The employer had no way to determine what wage he had to pay. This is different than Nash because Nash should have been aware that what he was doing was risky.
Gray v. Kohl- case where religious leader was distributing bibles on a public sidewalk near a school. He followed necessary protocol so that he would not get in trouble but he was later arrested for violated the statute à Section 2b of the statute said that cant come within 500ft of a school zone if you don’t have legitimate business within 1 hour before and after the school day. Section 2c says that the person must leave when told to do so. Section 2b is unconstitutionally vague because it does not provide citizens of ordinary intelligence with reasonable notice of the type of acts that the statute criminalizes à what legitimate business is covered by the statute and what is not.
Chicago v. Morales – this involved an anti-loitering statute. The court held that the ordinance violate both prongs of the vagueness doctrine because it failed to provide adequate notice to those who might be subject to “dispersal orders” and arbitrary enforcement. The statute is vague because “loiter means to remain in anyone place with no apparent purpose.”