Criminal Law Outline
Prof. Dimino
Fall 2013
Intro
Criminal Law Statutes typically contain at least 2 major components:
1) Act / Objective Conduct Element
a) What the Defendant has actually done; “actus reus”
b) Ex. “Stealing of jewelery” or “Killing of a human by a human”
2) Mental State Element; “Mens Rea” (guilty mind)
a) Ex. Killing of a human by a human may not be murder – depends on whether killing was committed with malice of forethought
b) Malice = Mental State
Standard of Proof for Prosecutor is “beyond a reasonable doubt” for all elements
· Jury uses inference to determine whether or not Defendant had certain mental state
· General Rule: We require at least a kind of recklessness before we impose criminal liability on someone (Exception: Strict Liability)
PUNISHMENT
1) Reasons for Punishment
a) BIG QUESTION: What should “punishment” mean? ANSWER will depend on what type of Theory of Punishment you support (can use multiple)
i) Retribution: “Blameworthiness”
(1) Punish actor for what he did depending on seriousness of crime
(2) Punish only those who deserve it
(3) Focuses on crime rather than criminal
(4) Advantages: Fair, treats people who commit similar offenses similarly
(5) Disadvantages: Requires assessment as to grading the crimes (which ones are more serious than others?)
ii) Deterrence
(1) Others learn lesson from it and do not commit crime in future
(2) Advantage: Might reduce crime; helpful when it is hard to catch a criminal, when you finally do catch them, you want to use them as an example to deter others
(3) Disadvantages:
(a) Might produce disparities in punishment of individual offenders
(i) Ex. Martha Stewart – in spot light, punish her more than a “nobody” b/c more people know who she is and will get the message
(b) If public never hears about the punishment, they won’t be deterred
(4) Goal: to reduce crime to an efficient level by making the costs of crime greater than the benefits to the potential criminal
(5) 2 Categories:
(a) Specific Deterrence: I am deterred because of punishment previously imposed on me
(b) General Deterrence: Operates on greater society
(6) 3 Conditions for Deterrence to Work:
(a) Party we want to deter must be aware of the rule or the punishment
(b) Party must be able to make a rational calculation of costs and benefits of the crime
(c) Must actually make the cost of the crime exceed the benefits
iii) Incapacitation
(1) Makes it impossible or difficult for a person to commit a crime
(2) Have to establish how “dangerous” someone is, might not always be 100% accurate
iv) Rehabilitation
(1) Prevent future crimes
(2) Effect is on the individual – makes them not want to be a re-offender
(3) Disadvantages:
(a) Focuses on capacity of punishment to rehabilitate the offender rather than seriousness of the crime
(b) Requires the system identify ppl that need rehabilitation
(c) Requires development or identification of effective treatments
v) Utilitarianism
(1) Punish when punishment serves a better end
(2) Forward-looking – prevention of crime
(3) Society should not impose pain unless benefits outweigh the pain itself
vi) Denunciation
(1) Stigmatize the offender
(2) Register society’s disapproval of offender and what he has done
(3) Some offenders will care more about their reputation with community, will be more likely to reform their behavior
(4) It’s cheap, we don’t have to pay people to shun the offender
2) Proportionality
a) Ewing
i) Defendant argues that his sentence is constitutionally disproportionate; court disagrees
ii) “three strikes law” – cruel and unusual punishement?
iii) Crime that triggered life sentence – stealing 3 golf clubs
iv) Court asks whether the crime of grand theft of property worth $1,200 by a multi-offender is disproportionate; not whether or not 3 golf clubs stolen is proportionate
v) 8th amendment – punishments must be proportionate, or at least not grossly disproportionate to…seriousness of crime?….deterrent goals?…goals of criminal justice system?…likelihood of re-offending?
3) Capital Punishment
a) Discretion & Standards
i) Proportionality Requirement of 8th Amendment requires some kind of individualistic determination in sentencing:
(1) Jury must be free to consider individual characteristics of the Defendant in deciding whether or not the death penalty is appropriate
(a) Mandatory death sentences for certain crimes are unconstitutional
(i) Ex. Anyone who kills a police officer in the line of duty
(ii) State may have death penalty as an option the jury can choose for killing an officer in the line of duty
(b) Jury must always be free to exercise mercy
(c) Defendant can give any reason he wants for why he shouldn’t get the death penalty, can’t restrict mitigating factors
(2) Jury must not be completely free to do whatever it wants
(a) Discretion must be guided
(b) List of aggravating factors: characteristics of crime or the defendant that allow jury to impose a death sentence:
(i) Killing a police officer in a line of duty
(ii) Torture of victim
(iii) Killing multiple victims
(iv) Killing for profit
(v) Killing as part of a commission of another felony
(c) If jury finds one or more of these factors, it gets to decide whether death penalty is appropriate
(3) Guided discretion allows punishment to have rationality
(4) Discretion leads to inequality and arbitrariness
b) Death penalty is reserved for the most severe crimes
i) Worst murder
ii) Rape? Coker says no
(1) Retribution argument – D didn’t kill victim, so he should not be put to death
iii) Felony murder – if you murder someone while committing a felony
(1) Ex. Bank Robber is robbing bank, teller dies of heart attack, D is on hook for felony murder
(2) Constitutional to impose death for a felony murder?
(a) Disproportiona
f Lenity
i) Interpret the criminal statute in favor of the accused
ii) Rationale: do not want to sandbag the Δ by having an ambiguous statute and interpret it in a broad way to make Δ criminally liable
iii) Must be a “grievous ambiguity or uncertainty” in the statute
iv) Not universally accepted; some jurisdictions reject the rule of lenity
b) Theories of Statutory Interpretation: (All of these views have one goal: Get courts out of the business of making policy judgments associated with writing statutes)
i) Textualism
(1) Text of the statute is the only law the judiciary is to be interpreting
(2) Frowns on consideration of legislative history
(a) Has not gone thru constitutionally prescribed law-making process
(3) Hate judicial discretion
(4) If you seek the intention of the legislature, you are likely to be making up an intention rather than finding one
(5) Making up an argument so statute means what you want it to mean
(6) Argument against Textualism:
(a) Ignores factors that are significant in statutory interpretation such as legislative history
(b) What happens if statute words are ambiguous?
(c) Leaves textualists free to impose their own judicial philosophy on the statutes
ii) Intentionalism
(1) Subjective intention of the legislatures
(2) Court often cannot figure out what the subjective belief of the legislature was b/c the stmt of one person doesn’t show intent of the entire legislature
iii) Dynamic: Rarely explicity accepted by Courts, but Courts do engage in it
c) Purposivist
i) What was the legislature trying to do?
ii) What was the public policy? How would interpretation of the statute advance that goal?
iii) Problem: Tend to only look for one purpose, but statute balances different purposes
d) There are statutes that tell Courts how to interpret statutes: Ex. Tells courts when they can or cannot use legislative history
e) Vague Term vs. Ambiguous Term
i) Ambiguity – uncertainty about the meaning of a term
(1) Ex. “bank” can be a financial institution or the side of a river
(2) Court focuses on ambiguous statutes
ii) Vague – has a core meaning but gets fuzzy on the edges
(1) How is the term to be applied in given context?
(2) Is it reasonable? “hot” or “tall”
(3) Administrative agencies will often have vague terms in statutes that they are supposed to administer
