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

Penal Theories of Punishment
1)       Utilitarianism
a)       Goal: what is right to do is what is good for society as a whole; act to produce the greatest good for the greatest number of people; purpose of all laws is to maximize the net happiness of society
b)       Cost: cost on society to defend himself, the society at large… compared with benefit of crime prevention (Benefit (# of thefts*$ per theft) – C (cost of prevention) = net benefità the higher the better)
c)       Punishment: justified only to the extent it increases society’s net utility/welfare
d)       Strategies: preventing crime
i)         Specific deterrence – punishment to deter the individual defendant from committing the same crime in the future.
ii)       Incapacitation – Δ is in jail and unable to commit crimes b/c away from other members of society
iii)      Rehabilitation – Δ’s values are changed through reformation and vocational training (Ex. Counseling)
iv)     General deterrence – punishment to deter others from committing the same or similar offense.
v)       Retribution- giving the defendant what he deserves
2)       Retributivism
a)       Goal: punishment is justified when deserved; free will and choice make everyone accountable for actions
b)       Components:
i)         Positive component – punish at lease as much as deserved
ii)       Negative component – punish no more than is deserved
c)       Punishment has an intrinsic value
d)       Moral desert allows for those who commit offenses to be punished
e)       Harm based is objective (reasonable person)
f)        Intent based is subjective (your actions under the circumstances)
3)       Mixed Theory
a)       Punishment: combine punishing to the level that maximizes social good (utilitarianism) with the view of punishing no more than is observed (negative retributivism)
b)       Overall: punish the lesser of the amounts recommended by both parties

Regina v. Dudley & Stephens
Facts: 2 prisoners with no water and food on a boat ride decide to sacrifice boy to save the rest. Is necessity an excuse for murder?
Holding: Necessity No defense for Murder

People v. Suite
Facts: Suite was pulled over for unauthorized vehicle can was found with a gun not registered in NY, but registered in NC and knew about licensing req. for NY but never got a chance to register. NY new law states a 1yr mandatory jail sentence for non-registered gun. Is the jail portion of the sentence to harsh?
Holding- Reduced to 30days in jail b/c a good faith individual and law not intended to punish law abiding good citizens.
O’Conner (dissent): Disagrees with 30 day sentencing “It is totally inappropriate and completely counter productive to impose jail sentence for such a short period of time.”

Haven or Hell? Lorton Central Prison
–          Only through prisoner’s experience can we test the categories to clarify and set priorities.
–          Khan- Alternate sanctions: rediscovery of shame.
o    Fines- doing something wrong, but only have to pay for punishment
o    Community service- usually seeks admiration and shouldn’t be a punishment.
–          Punishment not expressive- means of punishment are similar to the actions message seeks to condemn (Inconsistency) Ex: spanking for hitting brother
–          Becker- theory and reality doesn’t match, punishment really doesn’t deter, jail is more of a crime school, go in as a thief and come out as a murderer.
o    Deterrence doesn’t work b/c criminals aren’t rationale and think “they can’t catch me”
o    Rehabilitation doesn’t work b/c society has stigma on criminals and won’t hire for good jobs.
–          Deford- criminal justice function as cultural norms.

Presumption of Innocence & Proof beyond a Reasonable doubt
–          In a criminal case, prosecution bears the burden of proof.
–          Burden of production- initial responsibility to produce evidence in support of a claim.
–          Standard of Proof- “beyond a reasonable doubt”
–          Prima Facie- create a reasonable doubt about some element of the crime
–          Affirmative defense- defendant admits guilt as to the charged offense, but claims nevertheless should be acquitted either b/c acting in a way that is justified or she should be excused.
–          Reasonable Doubt- Causes you to be undecided that you can’t say that you are firmly convinced of the D’s guilt.

Curley v. U.S.
Facts: Curly indicted for violation of mail fraud statute. Curley and others members of the “Group” and Curley’s claim is that although he is the President of the “Group” there was no proof that he was involved in any significant way in the fraudulent activities of the “Group.”
Holding: From the evidence, can a reasonable mind fairly conclude guilt beyond a reasonable doubt.

Role of a Jury

–          Jury Nullification- returning a verdict contrary to law (A jury is not strictly obligated to follow the law).
–          Hung Jury- if a jury can’t come to unanimous verdict, judge will declare a mistrial and prosecutor may either re-file charges or drop the case.

People v. Williams (No jury nullification)
Facts: D was 19, girlfriend 16. Both testified engaged in sexual intercourse, D claimed consensual while gf claimed forced by threatening w/ knives. Juror #10 refuses to adhere Judges instruction to uphold law in regards to statutory rape b/c believes law is wrong. Tr. Ct. excused Juror 10 and replaced with alternate juror who later convicted D.
Holding: A juror who is “unable or unwillingly to do so is unable to perform his or her duty as juror may be dismissed. Didn’t have right to nullify. Jury nullification is a power, not a right

Common Law and the MPC
4)       Common Law: judicially developed; received in US; inconsistent, incomplete, and redundant
5)       MPC: completed in 1962; completely statutory (compiled by looking at the common law to compile the law into one document that includes the offense, defense, and other necessary material)
a)       No state has completely adopted the MPC
b)       Most have adopted portions

Dillof’s How to Interpret a Statute
o    Rule of Lenity- all doubts when reading a criminal statue should be resolved in favor of the D in recognition of the important liberty interests at state and presumption of innocence.

U.S. v. Dauray
Facts: Dauray arrested for possession of pictures cut from magazine “3 or more in number which contain any visual depiction of minors engaging in sexually explicit conduct.”
Issue: Law is ambiguous to the possession of 3 or more pictures therefore rule of lenity should apply.
Holding: Ct. dismissed b/c ambiguous due to Rule of Lenity.

Due Process Clause (5th and 14th Amendment)
–          “Nor shall any person… be deprived of life, liberty, or property, w/o due process of law.
–          2 purposes:
o    1) providing fair notice to citizens of what conduct is prohibited
o    2) limiting police discretion to arrest and jury discretion to imprison people they don’t like
Papachristau v. City of Jacksonville(Rule of Lenity)
Facts: 8 D’s convicted for violating vagrance ordinance “Beggers, gamblers, pick pocketers, etc. shall be deemed vagrant upon conviction and pushed by 90 days, $500 fine,

h a sentence of [death or of] imprisonment is authorized, constitutes a crime. Crimes are classified as felonies, misdemeanors or petty misdemeanors.(2) Felony = if designated in Code or if persons convicted thereof may be sentenced [to death or] imprisonment for term that, apart from an extended term, is in excess of one year.(3) Misdemeanor = if designated in Code or in statute other than this Code enacted subsequent thereto.(4) Petty misdemeanor = if designated in Code or in statute other than this Code enacted subsequent thereto or if it is defined by a statute other than this Code that now provides that persons convicted thereof may be sentenced to imprisonment for a term of which the maximum is less than one year.(5) An offense defined by this Code or by any other statute of this State constitutes a violation if it is so designated in this Code or in the law defining the offense or if no other sentence than a fine, or fine and forfeiture or other civil penalty is authorized upon conviction or if it is defined by a statute other than this Code that now provides that the offense shall not constitute a crime. A violation does not constitute a crime and conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.(6) Any offense declared by law to constitute a crime, w/o specification of grade or of sentence authorized upon conviction, is a misdemeanor.(7) An offense defined by any statute of this State other than this Code shall be classified as provided in this Section and the sentence that may be imposed upon conviction thereof shall hereafter be governed by this Code.
Parts of an offense
Common Law
Model Penal Code
(1) Mens rea – intent (guilty mind, “intentionally”)
(2) Actus reus – bad action (physical/external part of crime)
[Attendant circumstances – condition that must be present, in conjunction w/ prohibited conduct or result, in order to constitute a crime – part of AR] Crimes of result – killing; Crimes of conduct – speeding
§1.13(9) – Elements of an offense
(i) Conduct (includes mental state of mind/culpability)
(ii) Attendant circumstances
(iii) Result of conduct

Actus Reus
o    An act or omission that constitutes an offense or leads to results that are an offense. 
o   Moral obligations do not necessarily create legal duty, if they do not there is not duty to act or omit
o   Requirements:
o    can’t be convicted solely on mere thoughts
o   act must not have been compelled
o   voluntary act
o   legal duty to act
o   not who you are BUT what you do

Wisconsin v. Mitchell
Facts: Group of black men watching “Mississippi Burning” and then saw white kind walking. Mitchell instructed group to beat up white boy who went to coma. Crime motivated by “hate crime” and Mitchell was punished based on his offensive thoughts.
Holding: Affirmed.