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Criminal Law
West Virginia University School of Law
Scully, Judith A M

1. Types of Theories of Punishment
1. Utilitarian
1. Purpose of all law is to maximize the net happiness of society. Therefore, punishment is justifiable only if it minimizes criminal conduct or provides society with some type of benefit.
2. It is acceptable to punish someone who is innocent if it will result in a benefit to society.
3. Punishment is evil and therefore it should never be excessive.
4. Utilitarians believe that punishment must achieve one of the following objectives:
1. General deterrence
2. Specific deterrence
3. Rehabilitation
2. Retributivism
1. The goal of punishment is NOT to reduce crime but to make sure that criminals pay for the crimes they commit
2. Only intentional wrongdoers should be punished.
1. Assaultive retribution: “It is morally right to hate criminals and since criminals harm society, it is right for society to harm criminals.” (Revenge). It is also proper to hate criminals because the dignity of victims can be restored by chastising the actions of criminals.
2. Protective retribution: Criminals must be punished for what they do because they, like everyone else, have the freedom to choose what they will and will not do. However, once a wrongdoer pays his debt to society (by serving his prison term), he should be free from stigma. Therefore, retributivists do not support higher penalties for recidivists.
3. Victim vindication: Victims need to even the score . . . Therefore, punishment is the equivalent of “righting a wrong.”
4. Negative Retributivism: a hybrid of utilitarian and retributivist principles. A person who embraces this hybrid philosophy believes that guilt is necessary for punishment (retribution) but the guilty should NOT be punished unless it will result in some benefit to the community (utilitarian).
2. Jury Nullification – power granted to juries, but should not be included in jury instructions
1. State v. Ragland: Is the jury’s nullification power, an essential attribute of the constitutional right to a jury trial, which the jury must be informed of? No, this would not be a good thing. In fact, the NJ Supreme Court even stated that jury nullification “should not be advertised, and, to the extent constitutionally permissible, it should be limited. Efforts to protect and expand it are inconsistent with the real values of our system of criminal justice. The power of jury nullification is not a precious attribute of a right to trial by jury.
3. Scholarly definition of “punishment” – D may suffer “punishment” when, but only when, an agent of the government, pursuant to authority granted to the agent by virtue of D’s criminal conviction, intentionally inflicts pain on D or otherwise causes D to suffer some consequence that is ordinarily considered to be unpleasant.
4. People v. Superior Court (Du): Liquor store owner is convicted of voluntary manslaughter after killing a young customer. Judge then suspends ten year prison sentence and places liquor store owner on probation for voluntary manslaughter. The amount of punishment imposed for voluntary manslaughter depends on the facts of each case.
1. 7 Factors Considered in Federal Sentencing:
1. Protect Society
2. Punishment of defendant for committing a crime
3. Isolate the defendant so he cannot commit other crimes
4. Secure restitution for the victim
5. Seek uniformity in sentencing
6. Encourage the defendant to lead a law-abiding life
7. Deter others
5. Trend away from Indeterminate sentencing to Determinate sentencing
6. Controversy concerning “shaming”
1. United States v. Gementera: Can thieves be forced to declare their crimes in public? Yes, as it is part of an overall plan of constructive rehabilitation, G will have to wear the sign. The Sentencing Reform Act affords courts broad discretion in fashioning conditions of supervised release that are reasonably related to the nature and circumstances of the offense and the history and characteristics of the defendant.
7. Punishment is “excessive” and unconstitutional if: (1) it makes no measurable contribution to acceptable goals of punishment; or (2) is grossly out of proportion to the severity of the crime.
8. Proportionality
1. Three factors analyzed by the courts:
1. Gravity of the offense and harshness of the penalty
2. Sentences imposedo on other criminals in same jurisdiction
3. Sentences imposed on other criminals in other jurisdictions for same offense
4. Coker v. Georgia – Is the death penalty for the rape of an adult woman grossly disproportionate punishment prohibited by the 8th Amendment as “cruel and unusual?” YES
2. Recidivist Statutes
1. Controversy surrounding “wobblers”
2. State has the power to enact recidivist statutes because of its “police power” granted by the Constitution
3. WV Recidivist Statute
4. Ewing v. California – Does the 8th Amendment, which prohibits cruel and unusual punishment bar a State from sentencing a repeat felon to a prison term of 25 years to life under the State’s 3 strikes law? NO
1. Legality Principle
1. No crime without law, no punishment without law
1. (A person may be not be punished unless her conduct was defined as criminal before she acted).
2. This is the most important principle in C

was likely to harm others (say, driving a car)
1. State v. Utter: Veteran father was drunk when his son came home. The son approached the father from behind and the father stabbed him. Father made claim that the stabbing resulting from automatism resulting from training in Vietnam. HELD: The court determined that whether the act resulted from the father’s training or not, the father’s voluntary choice of drinking unreasonably placed him in a position where he was likely to harm others.
3. Unconscious: An act performed during a state of “unconsciousness” does not meet the actus reus requirement, BUT a self-induced state may deprive Δ of involuntary defense: that is, D’s earlier voluntary act may deprive him of involuntary defense.
2. Time-framing
3. Omissions
1. Voluntarily assume care of another and prevent others from helping
1. Barber v. Superior Court: Victim was on life support and the doctor chose to remove the patient from life support. This action qualifies as an omission, but if it is in accord with the patient’s or surrogate’s wishes, then the omission does not give rise to criminal liability.
2. Contractual duty
3. Create the risk of harm
4. Statutory duty
5. Special relationship
1. People v. Beardsley: Δ was having an affair with another woman. They were partying for an extended period of time and the victim decided to take morphine. The Δ asked a friend to hide her before his wife arrived home. Later, the victim was found dead. HELD: There existed no special relationship b/w Δ and victim so Δ cannot be held criminally liable for the victim’s death.
4. Model Penal Code – a person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
1. The following are not voluntary acts:
1. A reflex or convulsion
2. A bodily movement during unconsciousness or sleep
3. Conduct during hypnosis or resulting from hypnotic suggestion
4. A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual