CRIMINAL LAW OUTLINE – PROFESSOR LISTER – FALL 2016
Criminal Law’s Purposes
Three purposes justify criminal punishment: retribution, deterrence, and rehabilitation.
Retribution is the moralist theory of criminal law – the idea is that the defendant’s moral wrong makes punishment a moral good, maybe even a moral necessity.
Deterrence is the economic theory of criminal law – the idea is that punishing this defendant will prevent others from making similar choices in the future.
Rehabilitation is the psychological or psychiatric theory of criminal law – the idea is that criminal punishment can be used as a form of treatment, to cure the mental and emotional diseases that prompt criminal to commit crimes.
What is Criminal Law?
Refers to legal norms (principles, doctrines, standards and rules) that govern infliction of punishment by the state
In response to conduct that the state considers so wrongful that it deserves punishment
Criminalization of conduct typically signals official condemnation of the conduct of the state
Key Systemic Issues
Discretion pervades the process
Screening operates multiple stages
Various structures and practices expose the system to serous criticisms
How does and should that play out in the real world?
Judge can acquit but not convict, no matter the juries decision.
Two patterns of Legal Reasoning:
Reasoning from generally applicable rule (deductive reasoning)
“It is only folklore which holds that a statute, if clearly written, can be completely unambiguous and applied as intended to a specific case.” Professor Levi (1948)
Some ambiguity is inevitable
Reasoning by example (analogy to precedent)
Identify that similarity between cases
Announce the rule of law inherent in 1st case
Apply that law to the second case
Defining Criminal Conduct
Most crimes are defined by statues in America
Actus reus – guilty in action
Mens rea – guilty in mind
Ratio decidendi – central reasoning of the case
Obiter dicta – remarks of a judge which are not necessary to reaching a decision; comments, thoughts
Mala in se – bad in itself, wrong in itself
Core criminalized acts
Rape , murder, robbery
Mala prohibita – bad because it is prohibited
Regulatory offenses, jaywalking, failing to file taxes, drug possession
Per Curium = for the court
Conventional Definition of Crime
“A voluntary, affirmative act that causes harm, done with culpable intent that coincides with the act and is defined by a statute to be a “crime.”
A crime is any combination of conduct (act or omission) and intent (mens rea) that violates a criminal statute, as enforced by a prosecutor and interpreted by a court (or, rarely, a jury).
All crimes require a “vicious will” – Most popular treatise of its time
Harm principle – laws should be enacted only to prevent harm
The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will is to prevent harm from others
THE ROLE OF COURTS AND LEGISLATURES
Who Defines Crimes?
Historically = Courts (developing “common law”)
Modern = Mostly, statutes (with courts interpreting statutes)
Crime and Criminal Law
Sometimes criminal law shifts social norms, sometimes it doesn’t
Likelihood of punishment more imp
Capital Cases – SCOTUS is more active in enforcing proportionality in cases involving capital punishment and has eliminated capital punishment in some types of cases:
Rape – Coker v. Georgia, 433 U.S. 584 (1977)
Felony murder where the accused doesn’t kill his victim -Tison v. Arizona, 481 U.S. 137 (1987)
Where the accused is mentally challenged – Atkins v. Virginia, 536 U.S. 304 (2002)
Where the accused is a juvenile who commits murder before turning 18 – Roper v. Simmons, 543 U.S. 551 (2005)
Cases involving juveniles – SCOTUS has been somewhat active in enforcing proportionality in juvenile sentencing:
Struck down life imprisonment of juveniles in non-homicide crimes (Graham v. Florida)
Held that mandatory life without parole is unconstitutional for all crimes committed by juveniles (even murder) but that discretionary sentences are still permissible. (Miller v. Alabama and Jackson v. Hobbs)
Non-Capital Cases – SCOTUS is less active in enforcing proportionality in cases that DON’T involve capital punishment OR juvenile defendants.
Harmelin v. Michigan – upheld a law requiring mandatory sentence of life without parole for simple possession of 672 grams of cocaine.
Ewing v. California – Let stand California’s “three strikes” law where defendant committed his 3rd burglary stealing golf clubs worth $399 each