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Criminal Law
Wayne State University Law School
Morrison, Adele M.

Adele Morrison Criminal Law Fall 2013

I.                   Chapter 1: Basic Principles
A.    Justifications for punishment
1.      Arguments to justify criminal punishment come from moral philosophy. Traditional moral reasoning is divided into two types:
2.      Consequentialist –actions are morally right if and only if they result in desirable consequences. The primary theory of punishment:
a. Utilitarianism – Actions are wrong if they harm society and to prevent future harm to society and create a better and happier future, we have punishment. Pain inflicted by punishment is justifiable if but only if it is expected to result in a reduction in the pain of crime that otherwise would occur and increases society’s net welfare. Here are how punishments can be benefits as a whole:
i.            General Deterrence: Punishment: to deter others for committing the same or similar offenses.
ii.            Specific deterrence: Punishment: to deter the individual (specific) defendant from committing the same crime in the future.
a)      Arguments against Deterrence: They argue that the punished individual is an instrument for the improvement of society. Thus this system ignores the dignity and human rights of the wrongdoer.
b)      Also, this can justify the punishment of a person who is innocent of wrong doing for the greater good.
iii.            Incapacitation: Purpose of jail/prison: separate the criminal from society and protect society.
iv.            Rehabilitation: The purpose is to reform the wrongdoer vocational training, counseling, drug rehabilitation, etc to deter future crime.
a)      Arguments against: Many doubt that criminals can be reformed.
v.            The Costs of Punishment for Utilitarianism: The Social Costs: costs of confinement ($20k per year) & loss of a potential productive person. Community, Family, individual costs as well.
3.  Nonconsequentialist – believes that actions are morally right or wrong in themselves, regardless of the consequences. The primary theory of punishment:
a.       Retributivism-Believe that punishment is intrinsically valuable in that it restores moral balance; it is fair to treat people as they treated others, and this vindicates the victim. Giving the defendant what he deserves. The purpose is that it looks back at the act itself and seeks to balance the harm with punishment. Even if there is no value to society, we must punish.
i.            Arguments against Retributivism:  The intentional infliction of pain through punishment is senseless and even cruel if it does no good for society. They also argue that this glorifies anger and legitimizes hatred. It is also irrational because it is based on emotions. (They respond to that argument by saying that emotions have a moral content). 
Ex. of Retributivism: Regina v. Dudley and Stephens (CL)
Facts: Three men: Dudley (captain), Stephens, Brooks and one boy Parkers are stranded at sea. After 20 days with no food, Dudley and Stephens killed the boy and ate him because the boy was already weak and going to die anyway. Brooks the third man dissented form the act. Four days later were saved. Issue: Whether Dudley and Stephan can tried for willful murder. Holding: Their unfortunate circumstances also do not lend leniency to the legal definition of murder. The fact that Dudley and Stephens chose the weakest person to be the victim also does not justify that Parker could not have survived. Instead, by killing him, it is only making certain that he had no chance of survival. Chief judge Lord Coleridge had a theory of retributivism – He thinks that there is a moral duty that you should sacrifice your life for others. Argument against: Sacrificing ones life for another should be a criminal violation? If there is a moral duty and legal duty to sacrifice your life. Minimally don’t kill anyone to save yourself, then going up and saving someone else instead kill yourself
Ex. Utilitarianism – People v. Suite (NY App. Div.) 
Facts: Defendant, a college-educated family man, who never been convicted of a crime and who plead guilty to a criminal possession of weapon in the 4th degree and sentenced 30 days jail w/ 3 years probation when the sentencing Judge found the mandatory one-year jail provision too severe. He was aware of NY’s gun’s licensing requirement but did not get a license and also claimed the gun was necessary because he worked in a high crime area. State appeals.

Issue: whether the sentence of the trial court was abusing its discretion in applying a lesser sentence. Holding: Affirmed. The penalty to be imposed is a matter for the trial court’s broad discretion within the limits imposed in the legislature. They find nothing obscene with a 30-day jail sentence for illegal possession of a gun for a first timer. The supreme court finds that as there has been no abuse of discretion by the sentencing Judge. Although the D does not appear to be a danger to society or in apparent need of rehabilitation, the sentencing court viewed general deterrence as the overriding principle in crim law; was noting to deter since he was no threat to society. Dissenting: The judge finds that using the deterrence, retribution, rehabilitation, and isolation as a way to decide the sentence is too subjective. The dissenting judge felt that he should have received the full sentence and this “first time” violator rule would not help deter, which is the purpose of the gun law.
4. Do punishments really change crime? Arguments against justification for punishments
a. Haven v. Hell reading
i.        Retribution: Punishment is proportional to the gravity of the crime, but everyone in prison is treated the same, murderers and thieves (because officers will not read the prisoner’s file so they can be unbiased). Used to be an eye for an eye, but now it is equating things that do not go together.
ii.      General deterrence does not really deters people because they do not think consciously about the consequences of their actions as much, just assume that the guy who got caught did something foolish in the crime (so they try to learn from in terms of committing another crime, but not in terms of not doing the crime because of fear of a punishment)
iii.    Specific deterrence – criminal admitted that it only deterred them from doing the crime again the same way. Memory also effects it = the longer you are out of jail, the more it is as a distant memory and it you become less deterred.
iv.    Rehabilitation- they would get out of prison, and then realize you don’t have the skills and no one would hire you. They go back to the life of crime because of no other choice.
v.      Incapacitation –The crime is still in the prison and not the society. Fine whatever they do inside, as long as they are not doing it outside to effect society.
vi.    What gets people out of crime? People age out of the life crime

5.  Express Theory (denunciation) – Punishment is justified as a means of expressing society’s condemnation and the relative seriousness of a crime. This theory in some sense is a hybrid version of sophisticated aspects of utilitarianism and the victim vindication form of retribution. This is about education and it aims to establish and re-enforce social norms, but this is also about condemnation in that it serves to stigmatize the offender for his offense (thus vindicating the victim).\
a)      DeFord piece The Dilemma of Expressive punishment – p. 29
i.        Express theory – Part of the idea of expressionism is to say that punishment is expressive – moral condemnation shows how society is outraged about crime. It is all about expressing moral values.
ii.      Idea that it is morally right to hate criminals and when the law inflicts a punishment it allows expression of hatred for and vindictiveness toward the criminal
iii.    Kahan and the language of punishment – imprisonment is the punishment of choice in America and his solution is that there would be a rediscovery of putting shame on criminals instead of sending them to prison (he ended up retracting his view)
iv.    Problems with this expressive theory:
1)      However punishment is not expressive – the audience to which their expression of moral views is targeted at (the criminals) are undefined and confused
2)      Speakers of the message are complex institutional speakers obscuring the intents of the messages. When the intent behind the message is confused, the message itself is confused.
3)      The messages themselves are ambiguous, inconsistent and contradictory. Ambiguous because the structural limitations of punishment as a kind of language and second the inconsistencies in the way that punishment is applied – also inconsistencies to how crime is applied. In addition, contradictory because – We take people from their families, property, make them suffer when the criminal just did the same thing. How is the message here clear to the criminal that what he did was wrong?
6. Mixed Theories: This is the combination of both theories. Professor hart: is our primary purpose to punish murders, rapists and robbers (retribution) or is it prevent those crimes in the first place (utilitarianism)? Who should be responsible and how much punishment is appropriate for those who are held responsible? Hart says that the general purpose is to deter unwanted behavior (utilitarianism) but the retributive concepts should be applied in determining whether and how much to punish a particular person. Thus punish according to retributivist recommendations and do this because it will maximize social benefit.
a.       Limiting Retributivism: (1) punish within the range deserved and (2) choose point in range that maximizes social utility.
b.      Other hybrid: (1) punish to the extent that maximizes social utility but (2) never punish more than deserved.
c.       Punishment should be in proportion to his moral desert (retributivism) and not to his future dangerousness
B.     The Presumption of Innocence and Proof beyond a reasonable doubt Page 36-42
A. Burden of proof
a)      Common Law
1)   The prosecution has the burden of proof because D is presumed innocent and the prosecution seeks to establish his guilt. Every element of these must be proven beyond a reasonable doubt. There two types of burden of proof:
i.            Burden of production – is initial responsibility to produce evidence in support of a claim. 
a.       Prosecutor has burden of production regarding elements of the crime. D however has the burden of producing evidence pertaining to any affirmative defense she wishes to raise. Ex. “1) killing of a 2) human being by 3) another human being 3) with malice aforethought. Prosecutor must prove all of these elements.
b.      The level of that burden – Prosecutor must produce sufficient evidence that is beyond a reasonable doubt. If prosecutor fails to prove any of the elements, D is entitled to move for a directed verdict of acquittal at end of prosecutor’s case in chief or at the end of trial.
ii.            Burden of persuasion – is the ultimate responsibility of proving that a given offense was committed or that the elements of an asserted defense are ether present (the defendant’s position) or absent (the prosecutor’s position). Once B of production is satisfied, that matter is before the jury as the fact finder – it will decide whose factual claims are more persuasive.
a.       Winship doctrine – prosecution must persuade the factfinder beyond a reasonable doubt of every fact necessary to constitute the crime charged.
b.      If D presents sufficient evidence to meet her burden of product regarding a defense, a jury must be permitted to evaluate the defense claimed.
c.       When D has the burden of persuasion, a jury should reject the claimed defense if she fails to satisfy the stated burden. Assuming that the state has proven the elements of the crime beyond a reasonable doubt, and that no other defenses have been proven, the D may be properly convicted.
d.      When failing that burden: if P fails, to prove each element, beyond a reasonable doubt, D must be acquitted of the offense charged. If P has the burden of disproving a defense, the jury must acquit D if P fails to persuade the jury b

4.       Ex. People v. Williams Facts: At the trial, prior to the attorneys’ closing argument, the court indicated that it would instruct the jury it could convict the D of unlawful intercourse with a minor as a lesser offense with the charge offense of rape. The D’s objection was overruled (stated it was consensual). Trial court received a message from the jury foreperson indicating that juror no. 10 refuses to adhere to judge’s instruction to uphold the law in regard to rape and statutory rape. He believes the law is wrong. The juror no. 10 was excused. The jury then the next day convicted the defendant for the charges. The D appeals. Holding: The trial court is allowed to dismiss a juror because it is granted in the modal penal code section 1089. The juror refused to follow the courts instructions so he is “unable to perform his duty” as the MPC stated. The D however believes that he trial court dismissal denied him the right to a trial by jury because juror no. 10 properly was exercising his right to engage in juror nullification. This is a assumption of power, Chief justice bird says that,  “A jury that disregards the law and instead reaches a verdict based upon the personal views and beliefs of jurors violates one of our nations most basic precepts: that we are a  “government of laws not men” and also they find nullifying the law is wrong because it constitutes as unchecked and unreviewable power and can lead to verdicts that are based on bigotry and racism. And so the court finds it to be contrary to equal justice for all. Thus the decision of the trial court is affirmed.
5.      Race based nullification: Case in Chief (By Butler) – There should be jury nullification for victimless crimes for African Americans, particularly drug crimes. If we could have race based jury nullification it would be like black self help: the community building efforts such as tutoring school programs, legal and medical care to the poor – it prevents people form being punished when there are better alternatives. The author believes that AA jurors have a moral claim to jury nullification because they are victims of tyranny by the majority (whites). Liberal view: American Criminal justice is prejudiced and racist because it is controlled and created by Anglo-Saxon white views.  While 12% of AA offenders in drugs, 74% are locked up. This is discrimination. Radical critique: says that crime is the result of being born in poverty and AA are more in poverty. Its not really about discrimination, they are more likely prone to crime because of their poverty. And, radical theorists thus encourage incarceration of AA for social utilitarian benefit. Nullification comes handy: Instead of spending money on prison, spend it on rehabilitation
The rebuttal: Leipold challenges that because there would be problems
1.      there would be less African Americans on the jury  because they would be removed from the jury panel because of their believes against what the facts show. Then black criminals would be facing all white jury and this is worse.
2.      Juries are incapable of making reasoned nullifications because they are not given enough information of the law. They do not understand the cost benefit analysis of keeping criminals out of jail (while they can allow a young AA free for a possession of drugs to save his life, what about other crimes in where rape because woman was asking for it because they didn’t think he raped her).
3.      Soon other groups will also ask for the same right to nullify.
4.      You use race to allow people to go free based on race. It would be also getting rid of laws that would imprison people
G.  Statutory Interpretation     
1.      The primary source of criminal law in the US is statutory law. The judges play an important role in deciding what a particular statute means and how it should apply to particular cases. Whether the jurisdiction is the one whose penal code is based on common law of England or one whose penal code has incorporated with the MPC in whole or in part, judges must develop ways to interpret statute so to serve a number of goals. These goals include respecting the plaintiff language of the statutory text, discerning and effectuating the intent of the legislature in the case of an initiative, the voters and making sure that the interpretation of the particular statute in one case does not contradict its interpretation in another case.
2.      There is a body of informal rules that help them interpret statutes. Some of these rules address what the values a judge should prioritize when reading a statute.
3.      Noscitur a sociis (From dauray) – the meaning of doubtful terms or phrases may be determined by reference to their relationship with other associated words or phrases
4.      ejusdem generis (from dauray) – where general words follow a specific list of person or things, the general words should be limited to persons or things similar to those specifically listed.
5.      Rule of lenity – when there is doubt in reading a criminal statute, the verdict should be in favor of the defendant based on his presumption of innocence.