Chapter One

Criminal Law and Criminal Punishment: An Overview

Chapter One: Learning Objectives

• To define and understand what behavior deserves criminal punishment.

• To understand and appreciate the relationship between the general and special parts of criminal law.

• To identify, describe, and understand the main sources of criminal law.

• To define criminal punishment, to know the difference between criminal and non-criminal sanctions, and to understand the purposes of each.

Chapter One: Learning Objectives

• To define and appreciate the significance of the presumption of innocence and burden of proof as they relate to criminal liability.

• To understand the role of informal discretion and appreciate its relationship to formal criminal law.

• To understand the text-case method and how to apply it to the study of criminal law.

Criminal Liability

• Not all behavior that is wrong is criminal behavior…Besides Criminal Acts, which are Crimes, there are 4 other categories of behavior:– Noncriminal– Regulated– Licensed– Lawful

• 12 Examples in text

Criminal Liability

• Criminal liability should be imposed only if the wrong was a crime

• American Law Institute Model Penal Code definition of behavior that warrants punishment as “behavior that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests”

Crimes and Non Criminal Wrongs

• Criminal law is only one form of social control; most forms fall among the other 4 categories of social control.

• Criminal liability is the most extreme and costly response to wrongful behavior

• The civil action of Torts helps to demonstrate the difference between criminal wrongs and other non-criminal wrongs

Torts, an example of a non-criminal wrong

• Torts are private actions against a private citizen, a corporation, or another private citizen

• Person bringing the action is called plaintiff• Person being sued is the defendant• Jury/Judge will determine if the defendant is

responsible (not “guilty” or “not guilty”)• If person is found responsible, the remedy will be

monetary (compensatory damages, punitive damages)

Crimes

• “State” (people of the state) brings the action against a criminal defendant

• If defendant is found “guilty” then he or she is “blameworthy” and worthy of societal condemnation

• If guilty, then the defendant can be punished by death, incarceration, fines, community service, etc… and not just monetary damages

Chaney v. State

• This case makes clear the need for punishment to make community condemnation of crime meaningful

• The Alaska Supreme Court ruled the “sentence was too lenient considering the circumstances surrounding the commission of these crimes”• Forcible Rape• Robbery• “Apologetic” sentencing judge• “Forgotten” victim

Classification of Crimes

• Crimes of moral turpitude- behavior that is inherently wrong or evil

• Crimes without moral turpitude- behavior that is criminal only because there is a statute or ordinance that says it is– Examples: Parking and most Traffic Offenses

Crime Classifications

• Felonies: – Crimes punishable by death or confinement for a

specific period of time, usually greater than one year

• Misdemeanors: – Crimes that are punishable by a fine and or

confinement in local jail (generally up to one year)

Classification of the Criminal Law2 Divisions of Criminal Law

The General part of criminal law refers to the general principles that apply to more than one crime– Examples: • The principal of a Voluntary Act to all Crimes; • The principal of Criminal Intent to all Felonies: • The Principal permitting Use Of Force to prevent

Murder, Manslaughter and Assault.

Classification of the Criminal Law2 Divisions of Criminal Law

The General part of criminal law (Continued)In addition to the general principles that apply to all crimes, there are also 2 types of “Offenses of General Applicability”

1.The first is Complicity, and it deals with Accomplices and Accessories

2.The second type of complicity deals with other related crimes including Attempt, Conspiracy and Solicitation, also called the “Inchoate” Offenses

Classification of the Criminal Law2 Divisions of Criminal Law

The General part of criminal law (Continued)Finally, the general part of the criminal law deals

with most defenses to criminal liability, including the defense principles of Justification and ExcuseExamples:1. Justification – Self-Defense2. Excuse - Insanity

Classification of the Criminal Law2 Divisions of Criminal Law

2. Special part of criminal law: the definitions and categorization of specific crimes– Definitions consist of the elements that

prosecutors have to prove “beyond a reasonable doubt” to convict a defendant

– Categories group the offenses in four primary areas

Special Part of Criminal law

• The 4 Primary Categories of crimes– Crimes against persons– Crimes against property– Crimes against public order and morals– Crimes against the state

Sources of Criminal Law

• Codes– State codes (State legislative assemblies)– Federal Codes (U.S. Congress)– Local ordinances (Municipal legislative bodies)

• Common Law– State common law

• Brought to us by the Colonists, adopted by the 13 original states after the Revolution, and by “reception statutes” enacted by states created thereafter.

– Federal common law• U.S. v. Hudson and Goodwin- no federal common law exists• However, there is room for theuse of “common law

tradition” in the case-by-case adjudication of the law

State Criminal CodesCodification

• Trend from common law crimes at beginning of our nation to predominantly codes

– 1648 The Laws and Liberties of Massachusetts

– 1769 Blackstone’s Commentaries influence post revolution and enlightenment thinking

– 1826 Livingston’s Draft Code for Virginia (Failed)

– 1881 Dudley’s Field Code (New York)…replaced by Model Penal Code in 1967

State Criminal CodesCodification

• Model Penal Code– American Law Institute– Final version 1962– Followed by most (40+), but not all states– No state has adopted MPC in its entirety– “Common denominator” of American Criminal

Law

State Criminal CodesCodification

Model Penal Code – 3 Elements of Criminal Liability1. Is the conduct a crime?• Inflict or Threaten • Inflict or Threaten Individual or Public Interests

2. If the conduct is a crime, is it wrong?• Justified (Self-Defense)

3. If the conduct was unjustified, should we blame the actor?• Excused (Insanity)

Municipal Ordinances

– Local governments have broad but not unlimited power• Can duplicate, and overlap with state codes• When in conflict, the state codes will trump local as

noted in Chicago v. Roman– Assaulted an Elderly Person, received community service and

probation…a mandatory 90 day sentence was not imposed– On appeal, the City Prevailed in their relief to impose the 90

day sentence.– The appeals court found that the legislature did not preempt

the city from imposing the mandatory term (No conflict)

Municipal Ordinances

– Local governments have broad but not unlimited power (continued)• Municipalities can not create felonies• No punishments may exceed 1 year in jail

Administrative Law

– Agency made law (Rules and Regulations)

– Examples:• IRS Tax Code• State Highway Patrol Vehicle Safety Inspection

Regulations

Federal System• 50 autonomous and independent states– Each has own code.

• Washington, D.C. (own criminal code)

• Federal Criminal law (U.S. Codes)

• Federal government has limited law making authority (only crimes related to national interest, such as crimes on military bases and federal property, crimes against federal officers, and interstate/international crimes)

Criminal Law Varies Among Jurisdictions

• Criminal codes differ– Definitions of criminal behavior differ

• Defenses to criminal behavior differ

• Punishments differ

Appropriate Criminal Punishment?

• Incarceration?– Rates of incarceration: (number of prisoners per

100,000 people)– U.S. is the leader in the use of incarceration– Unequal representation of gender, age, race in

prison population – “Quantity” of punishment doesn’t tell us much

about the three aspects of punishment (definition, purposes, limits)

Appropriate Punishment for Criminal Behavior

• Punishment – Definition: inflicting pain or other unpleasant

consequence on another person…parents, clubs, churches, friends and schools all apply punishments…

Appropriate Punishment for Criminal Behavior

• Criminal Punishment – Criteria:• Inflict pain or other unpleasant consequence• Prescribe a punishment in the same law defining the

crime• Must be administered intentionally• State must administer them

Punishment vs. Treatment

• Often difficult to define the distinction between punishment and treatment

• Example: – Confining mental patient to padded cell in state

security hospital for 30 day observation rather than sentence him to 5 days in jail for disorderly conduct• Purpose?• Intentionally painful?

Purposes of Criminal Punishment

• Retribution—punishment justifies itself, pain of punishment pays for offenders’ crimes

• Prevention– pain of punishment brings greater good of reducing future crime by Deterrence

Purposes of Criminal PunishmentRetribution

• According to the Old Testament “break in place of break, eye in place of eye, tooth in place of tooth”

• Looks to past crimes and punishes individuals because it is right to hurt them

• Sir James Stephan: punishment benefits society– Morally right to hate criminals and to express the hatred

through punishment

• Punishment benefits criminals– Pay back society by accepting responsibility through

punishment.

Retribution• Retribution is only just if the offender chose

between committing and not committing the crime

• Wrong choice makes them blameworthy• Blameworthiness makes them

responsible/liable• Assumes free will– Individual autonomy

• Accords with human nature to hate law breakers and evildoers

Retribution

• Ancient support• Rests upon two philosophical foundations

– Culpability • Someone who intends to harm victim deserves

punishment, not someone who harms by accident

– Justice• Only those who deserve punishment can justly receive

and accept it; if they don’t deserve it, it is unjust

Criticisms of Retribution• Difficult to translate abstract justice into concrete

penalties

• Retaliation is NOT part of human nature in civilized society (barbaric)

• Free will justification is undermined—forces beyond human control determine individual behavior

• Vast majority of crimes don’t require culpability to qualify for criminal punishment – Crimes against public order and morals (statutory rape

where consent or reasonable mistake of age is not considered)

– Unintentional homicides

Prevention

• Punishment looks forward and inflicts pain to prevent future crimes

• Four types of prevention– General Deterrence– Special Deterrence– Incapacitation– Rehabilitation

General Deterrence

• Punish the offender to make an example of them and thereby deter others from committing future crimes

• Jeremy Bentham –deterrence theory– Rational humans won’t commit crimes if• Pain of punishment outweighs• Pleasure gained from committing crime

– Hedonism—if prospective criminals fear future punishment more than they derive pleasure, they won’t commit crime

Deterrence Theory

Principle of Utility• Least amount of pain needed to deter the

crime should be permitted

Criticisms of Deterrence Theory

• Emotionalism surrounding punishment impairs objectivity

• Prescribed penalties rest on faith• Rational free-will that is underlying deterrence

theory does not exist…complex forces within human organism and external environment influence behavior

• Behavior is too unpredictable to reduce to mechanistic formula

Criticism of Deterrence Theory

• Threats of punishment don’t affect all crimes or criminals equally

• Deterrence is unjust because it punishes for example’s sake– Punishments should not be a sacrifice to the

common good

Deterrence

Special or Specific DeterrencePunishing convicted offenders to deter THEM (The Individual) from committing any more crimes in the future

General DeterrenceThe threat of punishment serves to prevent US (The members of the community) those who have not committed crimes from doing so

Incapacitation

• Preventing future crime by making it physically impossible for the offender to harm society at large– Incarceration - locking people up so they cannot

harm society– Altering surgically (or chemically) an offender to

make them incapable of committing their crime– Executing a person

Criticisms of Incapacitation

• Incarceration shifts criminality from outside prison to inside prison

• Violent offenders continue offending in prison, property offenders continue also

• Incarceration is generally temporary

Rehabilitation as Prevention

• Rehabilitation is preventing crime by changing the personality of the offender so that he will conform to the dictate of law (Herbert Packer)

• Medical Model of Criminal Law - crime is disease, offenders are sick

• Purpose of punishment is to treat criminals

• Incarceration as rehabilitation, length depends on how long it takes to cure the offender

Rehabilitation Assumptions

• Determinism– Forces beyond offenders control cause them to

commit crimes– No choice made by offender– Can’t blame offender

• Therapy by “experts” can change offenders

Criticism of Rehabilitation

• Rehabilitation is based on faulty, unproven assumptions– Cause of crime complex– Human behavior not well understood– Sound policy can’t depend on treatment

• Makes no sense to brand everyone who violates the law as sick and needing treatment (Flaw of the Medical Model)

• Inhumane, cure justifies large “doses” of pain

Trends in Punishment

• All four punishment justifications have been supported at different times

• Weight given to each has shifted over centuries

• Rehabilitation philosophy justified the indeterminate sentencing laws of the 1960s

• Retribution and incapacitation philosophy justified fixed, mandatory sentences since 1980s

Presumption of Innocence• Presumption of Innocence means that state has the Burden of

Proof, at a level “Beyond a Reasonable Doubt, that the defendant committed a prohibited act with the required intent

• Burden of proof – The government must prove beyond a reasonable doubt, “every fact

necessary to constitute the crime charged” (Winship 1970)

– “Beyond a reasonable doubt’ is the highest standard of proof known to the law• Not beyond all doubt

• Not absolute certainty

– “Reasonable Doubt” consists of “the proof that prevents one from being convinced of the defendant’s guilt, or the belief that there is a real possibility that the defendant is not guilty” (Black’s Law Dictionary, 2004)

Presumption of Innocence

• Standards of Proof—level of certainty of which the jury (or judge) needs to be persuaded– Beyond a reasonable doubt –criminal liability– Preponderance of the evidence – civil cases and some criminal

defenses

Proving Defenses of Justification and Excuse

• Affirmative Defenses—switch the burden of production from the state (which always maintains the ultimate burden of proof) to the defendant

• Defendant has the burden of production and must present some evidence to support affirmative defense

• Some states require defendant to also carry burden of persuasion to preponderance, other states keep the burden of persuasion on the states (regarding the defense)

Discretionary Decision Making

• Every stage of the criminal justice system is a decision making point

• Criminal Justice professionals make decisions based upon training, experience, and unwritten rules

• Discretion is exercised, hopefully, in accord within the law

• Discretion should be exercised in a way that justice and fairness are not jeopardized

Text-Case Method

• Importance of case law—real life examples• Application of principles and definitions of

various crimes throughout the text• Excerpts are edited versions of appellate court

decisions—not trial transcripts• Excerpts are not from cases where defendant

was acquitted (state cannot appeal a verdict of not guilty in a criminal case)

Case Law Terminology

• Not guilty verdict—jury determined that the state did not prove its case beyond a reasonable doubt

• Guilty verdict—jury determined that the state proved its case beyond a reasonable doubt

• Innocent verdict—there is no such term used in criminal law. Jury is only to decide legal guilt or no legal guilt. It is not making a pronouncement of factual innocence

Terminology

• Bench trial- trial in which the judge acts as the jury and is the “trier of fact”

• Acquittal – result of the jury rendering a “not guilty verdict”

• Conviction—result of the jury rendering a “guilty” verdict coupled with the imposition of sentence

Components of Appellate Decision

• Title• Procedural History• Judge• Facts• Judgment/Decision• Opinion– Majority opinion– Dissenting opinion– Concurring opinion– Plurality opinion

Case Brief aka Legal Brief

• Distinguish between case or legal brief and the appellate brief

• Case/Legal brief—tool to help students focus on the main facts and issues dealt with in the opinion of the court

• Appellate brief– the supporting documentation for a criminal appeal, outlining and arguing to the judges why the court should rule in defendant’s favor. Points out all the legal “errors” that occurred in the trial

Briefing the Case Excerpts

• What are the facts– Defendant’s actions– Government actions? (very important in criminal

procedure cases, less so perhaps in criminal law)– What is the controlling law, statute (very important in

criminal law—what are the elements of the crime the state had to prove?)

• What is the legal issue• What are the arguments in the court’s opinion• What is the judgment of the court (affirm,

reverse, etc)

Finding Cases

• State v. Metzger = case name• 319 N.W. 2d 459 (Neb 1982)= full case citation• 319 = volume of the reporter • N.W.2d = the reporter in which the case

opinion was published….there are official and proprietary reporters

• 459 = page number the case begins on• (Neb 1982) = State where the case took place,

and the year of the decision