FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
THE THEORETICAL DIMENSIONS OF CRIMINAL LAW
Bentham à Optimal Deterrence: rational actors weigh the costs and benefits of actions; punishment must outweigh benefits but only sufficient to deter.
· Normative (how law should be); Goal is to maximize utility for society
· Rule: gain < penalty x probability of penalty
· Unmeet for punishment àpunishment that is too high wastes punishment resources; causes people to go for higher crimes OR self-help
o Ex: stealing hub caps, abortion clinic protesters; MAX more important than MIN
Kant à individual desert: people should be punished because they deserve punishment, not as means to benefit society. Punishment acknowledges value of the individual – society expects better of a person, so punishment affirms value. Also normative.
Hampton à expressive condemnation: law gives expression to society’s values (positive theory).
· Retributive idea: more severe the crime, more severe the punishment; victims dignity over criminal
· Punishment = scarce resource à must fit the crime because level of punishment shows how much society values the victim of the crime
· Punishment is message to the public; helps regulates society
1. Why Punish?
a. State v. Chaney à ex-Marine found guilty of two counts of rape, but only gets 2-year sentence.
i. B: not enough punishment for general deterrence, only enough for specific.
ii. K: Defendant deserves worse, and in fact such a light punishment is a disservice to him.
iii. H: low punishment shows society values Chaney over a prostitute (not explicitly stated in court but inferred from circumstances.
b. People v. Du à Korean storeowner suspects 15 yr old black girl shoplifting, claims girl assaulted her and she grabbed gun in self defense, but gun had hair trigger. Du got voluntary manslaughter but sentence is suspended.
i. B: Specific deterrence unnecessary because Du won’t do it again; but insufficient for general deterrence because other storeowners now have a precedent.
ii. K: Du is not completely to blame because she feared for her life, but killing is inherently wrong
iii. H: hardworking Korean is valued over black girl; given Du’s status in a hostile area with gangs, sends correct message.
2. How to Punish?
a. U.S. v. Bergman àRabbi charged with Medicaid fraud. D counsel proposes behavioral rehab instead of jail. He gets 4 months in jail.
i. B: Specific deterrence unnecessary and he would increase social utility more through social service, BUT general deterrence requires SOME degree of punishment
1. SN: no proof that general deterrence works v. shaming prevent others from repeating
ii. K: Deserves jail time because behavioral rehab will actually benefit him by repairing his reputation, not punish him.
iii. H: Jail time necessary, otherwise affirms inequality based on wealth.
b. What’s Really Wrong With Shaming
i. Too many incarcerated = excessive cost on economy, society, community.
ii. Problems with public shaming: distressing to public to be around criminals
1. Reveal inequalities of justice system by showing more minorities à reinforce existing prejudice against certain demographics.
iii. Kahan’s alternative à Restorative Justice: offender redresses the harm; compensates victim and reintegrates criminal into society. *Hard to implement because people won’t agree.
3. What to Punish?
- We want to punish acts that threaten social liberty and cause harm, but how to justify “moral” offenses that don’t appear to harm our welfare? à Motivated cognition (reaching a conclusion because you want to, regardless of veracity of conclusion.
b. Wisconsin v. Mitchell àAssaulted white kid after watching movie. Charged with aggravated battery with max sentence of 2 years, but Wisconsin statute extends it to 7 years if crime is motivated by race bias. He got 4 years. SCOTUS à extension does not violate 1st amendment.
i. B: goal is deterring race biased crimes, but may lead to retaliation from punished group
ii. H: penalty enhancement is good; WI aspires to be fair and equitable, value all subgroups equally
iii. Rule: criminal law can condemn more than physical harm on victim; also used to express ideal view on moral issues
iv. Eric Holder NY Times: “bias motivated acts of violence divide our communities, intimidate our most vulnerable citizens, and damage our collective spirit.”
c. Bowers v. Hardwick à police invades D’s bedroom and caught D in consensual sodomy (criminalized in GA). SCOTUS reviewed and said 9th amdmt does not protect sodomy. Overruled by Lawrence v. Texas à moral outrage should not be enough to make an act criminal.
i. Rule: morality alone is not sufficient to criminalize conduct; need harm. SCOTUS found harm in the offense (expressive value)
INSTITUTIONAL DIMENSIONS OF CRIMINAL LAW
1. Courts v. Legislatures
a. Desuetude: long and continued non-use of a law renders it invalid; not all courts follow this. Courts can change laws through usage faster than legislature.
i. Commonwealth v. Stowell àPolice follows van w/ man and woman, charges them with adultery. But MA adultery statute has not been used for ages. D argues for desuetude but court says state has right to “regulate institution of marriage” with police power.
1. Rule: legislature should change the law; not the court (judicial restraint)
2. K: Any sex outside of marriage treats other as a means to an end???
3. H: Repeal statute because no longer in line with society’s views, but conversely, doing so could encourage adultery.
b. Legality: law must be clear, ascertainable and non-retrospective; cannot impose sanctions for acts that aren’t criminal.
c. Lenity à if statute is ambiguous, courts must interpret in favor of D.
i. Keeler v. Superior Court à Man assaults pregnant ex-wife, killing 7 mo old fetus. Court held legislature did not intend to include fetus under “human” for murder and statue should be interpreted narrowly (lenity).
1. Rationale – if enlarge statute to include fetuses, would deprive D of fair warning of crime.
2. Dissent à Absurd to think that D would have consulted statute to get “proper notice” before acting, also to think that he would not think that his act could be considered “murder in any way”.
3. CHANGING LAW THROUGH UNDER-PUNISHING à easy for politicians to campaign on court’s under-punishment to try and amend law; much harder to do the opposite. Courts interprete laws narrowly to propel legislation chance. Bentham knew it was more difficult to back away from penal code once established à so emphasized need to set appropriate max limit on punishment.
ii. US v. Zavrell à D mails cornstarch to frame kids who bullied her son. Majority à it is threatening communication because statute was expanded beyond only written material; Dissent àcommunication, but not threatening because harm already came from exposure to powder, not any future conduct.
2. The Community
a. City of Chicago v. Morales à Gang Congregation Ordinance, police can basically tell anyone to disperse and charge them if they return. SCOTUS: ordinance is unconstitutionally vague. Ordinance reformed.
i. Rule: Statue should provide PRIOR, SUFFICIENT notice to enable citizen to understand what conduct is prohibited (offenders here don’t know they’re offending until told to disperse). Dissent: officers always had power to exercise discretion; ordinance lets them continue to fulfill duty and maintain the peace.
ii. B: broad ordinance prevents gangs from infringing on liberties of whole community
iii. K: unfair to gangs because police can target them arbitrarily, but being fair to them takes liberty away from rest of community.
iv. H: law targets minorities because gangs are in low-income, high-crime areas. BUT city is expending more resources on policing area à shows value for area and desire to make it safer.
v. SN: if you want the law to carry, use the exact wording the decision told you to
3. The Jury
a. Jury Nullification = acquitting D because jury does not agree with the law that D has been charged with breaking, or believes it does not apply in this particular case.
i. Defense arguments: jury may be more likely to acquit if told they can; gives them a place to attribute responsibility or sense of guilt if they were on the fence.
ii. Prosecution arguments: undue burden on Jury to be “mini-judges” and decided the law
b. Jury Nullification Movie à Man with low IQ buys gun to become a detective, after being a felon. He voluntarily delivered gun to police when asked. Did not understand what he did was crime. Note: jury acquitted, decided that the law didn’t apply. (Knowledge had to apply to actus reus and attendant circumstance)
i. B: ignorance of the law is not a defense
ii. K: only give him what he deserves
iii. H: what would we show the community if we prosecute him?
c. Prosecutor’s Right to a Jury Trial – it may be impossible to find an unbiased jury but still ask for jury trial. Judge must grant and there will be NO trial because of it.
d. Butler Essay- Nullify all black offenders in malum prohibitum (drugs, petty theft) crimes.
e. Duncan v. Louisiana à charged with simple battery but denied because LA only grants jury to capital punishment cases, D said this violated his constitutional rights. SCOTUS agreed and reversed/remanded case.
i. Rule: D has right to jury if max sentence exceeds 6 months.
f. U.S. v. Moon àD charged with tax evasion, requested bench trial because “negative publicity would never produced an unbiased jury.” Court denied, Moon tried/convicted on all counts. On Appeal, court affirmed .
i. Rationale: “The ability to waive the benefit does not import a right to claim its opposite.”
g. U.S. v. Daughtery à Protestors broke into Dow Co. and defamed property to protest war. Appealed that trial judge should have given instructions to allow jury nullification.
i. Rationale: “Encouraging individuals to make their own decisions about which laws to obey is an invitation to chaos. The negative aspects of having a rigid system do not outweigh the danger of removing the boundaries of constraint imposed by the judges’ instructions.”
ii. Dissent: Jury should know its power to disregard the law
h. Rodney King Case: Police charged with excessive force. Jury likely to side with person under arrest because they could be in that position; Judge in a bench trial has no motivation to assess police power to use force on people.
ELEMENTS OF A CRIME
1. Attendant Circumstance = other facts that must be true to establish culpability.
2. Actus Reus = the guilty act/unlawful omission (Prosecution must prove beyond reasonable doubt; NECESSARY FOR ALL CRIMES)
a. Voluntary Act à MPC 2.01- act must be voluntary to be criminal (ALMOST UNIVERSAL IN STATES)
i. B: Must be voluntary because can’t deter involuntary act; K: Only bad thought that manifests in action should be punished; H: shouldn’t place burden on society to be responsible for involuntary actions.
ii. People v. Newton àD was shot in the stomach, accused of shooting cop but claims he was unconscious. Charged with voluntary manslaughter. Medical experts said it’s not uncommon for Newton’s wounds to cause unconsciousness.
1. Defense: prejudicial error to not instruct jury that person who is unconscious at time of act is not liable for crime. If prosecution cannot prove beyond reasonable doubt that Newton was conscious, he should be acquitted.
2. Rule: where not self-induced, as by voluntary intoxication, unconsciousness is a complete defense to a charge of criminal homicide.
iii. Jacobs v. Commonwealth àMan tells D not to beat his kids, D stabs man; alleged that he is effectively “unconscious” when he is angered and cannot maintain control over his actions.
1. Defense: Can’t deter involuntary acts (B); D does not deserve punishment if he suffers from an ailment that renders him vulnerable to his rage (K).
2. Prosecution: Fact that D cannot control his temper strengthens the argument that he has bad character and should be punished. Even if he could not control rage, he can control whether to put himself in situations that would likely induce rage.
3. Rule: losing self-control is NOT involuntary. Courts sometimes view people to be the moral authors of their own impulses, even where their actions are involuntary.
iv. Martin v. State à Police arrested Martin at his home and took him onto the highway, then charged him with public intoxication. His act was voluntary but attendant circumstance was not.
1. B: ultimate purpose of statute is to deter public intoxication, not private.
2. Rule: both attendant circumstance and actus reus must be voluntary. Where there are multiple attendant circumstances courts can read the voluntariness requirement as applying to any or all of them. Court decides based on circumstances, like placing oneself in a position where future acts will be compelled (e.g. being drunk at bar when it closes).
b. Causation
i. Two accounts of legal causation:
1. Objective àPerson should not be held liable for harm unless they actually caused it.
2. Culpable àIf someone behaves immorally, it is more likely that they are the cause of a harm that occurs around them and should thus be punished.
a. People intuitively assess crime this way.
b. Good = if we share intuitions about culpability, it affirms that punishment is just.
c. Bad = Makes it easier for judge and jury to convict someone who fits the criminal stereotype.
ii. Traditional approach: D’s act must be (1) the “but for” cause AND (2) the proximate cause of the forbidden result.
iii. But For à D’s conduct necessary for the result
1. People v. Acosta à D leads police on chase and two helicopters were dispatched. One helicopter maneuvered in a way not compliant with regulation and collided into the other, causing pilots to die.
a. But-for: Satisfied. Helicopters would not have been flying “but for” need to catch him. Foreseeable?
i. Prosecution: D should know that by fleeing, he imposes on the police the danger of chasing him.
ii. Defense: Helicopter’s duty not to catch offender, but to monitor chase. ACTUAL cause of accident was pilot who violated regulation. Similar accidents have never happened, shows that it is highly unforeseeable.