Criminal LawCriminal Law

Chapter 1Chapter 1

The Nature and Limits of Criminal The Nature and Limits of Criminal LawLaw

Joel Samaha, 9th Ed.Joel Samaha, 9th Ed.

Conduct that Unjustifiably Conduct that Unjustifiably Inflicts HarmInflicts Harm

CrimeCrime

Noncriminal wrongNoncriminal wrong

RegulationRegulation

LicenseLicense

LawfulLawful

Conduct that Unjustifiably Conduct that Unjustifiably Inflicts HarmInflicts Harm

CrimeCrime

The degree of severity should reflect the amount of stigma that a criminal should suffer and the severity of punishment a person deserves

Conduct that Unjustifiably Conduct that Unjustifiably Inflicts HarmInflicts Harm

Non-criminal wrongs (torts)Non-criminal wrongs (torts)

“Victims” should sue the actors (a word for parties in legal cases) who injured them, but the stigma of “criminal” should not be attached to the offender.

LicenseLicense

Taxes, Licensing, Permits, etc. and pursuing those who violate the laws. Neither encourages nor discourages the behavior.

Conduct that Unjustifiably Conduct that Unjustifiably Inflicts HarmInflicts Harm

LawfulLawful

There are no legal consequences for the act but it can still be deemed deviant behavior by peers and the community.

RegulationRegulation

Government places this burden on behaviors to discourage them, i.e., alcohol tax creates a higher user price, but drinking is not a criminal act.

Principles of Criminal LiabilityPrinciples of Criminal Liability

““conduct that unjustifiably and inexcusably inflicts conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public or threatens substantial harm to individual or public interest,” Model Penal Code, 1985.interest,” Model Penal Code, 1985.

A conduct that was committedA conduct that was committed

Unjustifiably and inexcusably Unjustifiably and inexcusably

Inflicts or threatens substantial harmInflicts or threatens substantial harm

To individual or public interestsTo individual or public interests

Criminal LawCriminal Law versusversus Civil LawCivil Law

Criminal LawCriminal Law

Public WrongsPublic Wrongs

Prosecuted by the StateProsecuted by the State

Proof beyond a reasonable Proof beyond a reasonable doubtdoubt

Right to counselRight to counsel

Defendant has right to Defendant has right to silencesilence

Penalties or sanctions are Penalties or sanctions are based on seriousness of based on seriousness of the offense, i.e., the offense, i.e., misdemeanors and feloniesmisdemeanors and felonies

Civil Law (torts)Civil Law (torts)

Private MattersPrivate Matters

Private parties file suitPrivate parties file suit

Preponderance of the Preponderance of the evidenceevidence

Must hire own attorneyMust hire own attorney

Defendant may be forced Defendant may be forced to testifyto testify

Penalties based on Penalties based on compensation or remediescompensation or remedies

QuestionQuestion

What is the most important difference What is the most important difference between torts and crimes?between torts and crimes?

Explain how this relates to punishment.Explain how this relates to punishment.

Criminal PunishmentCriminal Punishment

““Every criminal law has to define the crime Every criminal law has to define the crime andand prescribe a punishment.” prescribe a punishment.”

Criteria for criminal punishmentCriteria for criminal punishment

Inflict pain or other consequences Prescribed within the law defining the crime Administered intentionally Administered by the state as punishment

Limitation: 8th amendmentLimitation: 8th amendment

Criminal Punishment Criminal Punishment (Continued)(Continued)

PreventionPrevention (forward looking)(forward looking)

General deterrence Special deterrence (specific) Inapacitation Rehabilitation

RetributionRetribution (backward looking)(backward looking)

An “eye for an eye” captures the idea of retribution

Trends in PunishmentTrends in Punishment Historically, societies have justified punishment Historically, societies have justified punishment

on the grounds of retribution, deterrence, and on the grounds of retribution, deterrence, and rehabilitation.rehabilitation.

Retribution dominated penal policy until the 18th Retribution dominated penal policy until the 18th century, when it was replaced with deterrence century, when it was replaced with deterrence and incapacitation.and incapacitation.

Rehabilitation replaced deterrence in the late Rehabilitation replaced deterrence in the late 20th century and was the major form of 20th century and was the major form of punishment until the early 1960s.punishment until the early 1960s.

By the mid-1980’s retribution and incapacitation By the mid-1980’s retribution and incapacitation were the primary forms of criminal punishment.were the primary forms of criminal punishment.

General and Specific Parts General and Specific Parts of Criminal Lawof Criminal Law

General part of criminal lawGeneral part of criminal law

Covers principles that apply to all crimes: constitutional principles found in the U.S. and state constitutions

Special part of criminal lawSpecial part of criminal law

The special part defines specific crimes and arranges them into groups according to the subject matter and seriousness

Crime ClassificationCrime Classification

FeloniesFelonies

Crimes punishable by death or imprisonment in a state facility for life or a period of time.

MisdemeanorsMisdemeanors

Crimes punishable by a fine or a jail term of up to a year in a local facility.

Grading CrimesGrading Crimes Malum in seMalum in se

Inherently evil conduct that has injurious consequences, e.g., murder, rape, robbery

Malum prohibitum

Conduct prohibited by law because they are not evil in nature, e.g., dui, tax evasion, speeding, carrying a concealed weapon

Societal Controversy…Societal Controversy…

Every society may Every society may disagree on what is “evil” disagree on what is “evil” behavior and what behavior and what behavior “should” be behavior “should” be criminalized by society. criminalized by society.

Examples: Examples: 1) Viewing sex offenders 1) Viewing sex offenders differently county by differently county by county county

2) Different states having 2) Different states having different ages at which a different ages at which a child can be treated as an child can be treated as an adult for a crimeadult for a crime

Definition of CrimesDefinition of Crimes

Crimes against the stateCrimes against the state:: Domestic & foreign terror

Crimes against personsCrimes against persons: : Murder & rape

Crimes against propertyCrimes against property: : Stealing & trespass

Crimes against public order and moralsCrimes against public order and morals:: Aggressive panhandling & prostitution

Principle of LegalityPrinciple of Legality

Also known as the rule of lawAlso known as the rule of law

This principle purports that law controls the This principle purports that law controls the power of government.power of government.

It consists of four values that has existed It consists of four values that has existed from Aristotle in 350 B.C to the Magna Carta from Aristotle in 350 B.C to the Magna Carta in 1215, they include:in 1215, they include:

Fairness Liberty Democracy EqualityEquality

“No Crime Without Law: No Punishment Without Law”

lExplain this proposition.

The case of Treva Hughes (Hughes v. State, 1994) is an excellent example.

Legislative and Judicial Legislative and Judicial Retroactive Criminal Law MakingRetroactive Criminal Law Making

Legislative retroactive law makingLegislative retroactive law making has a ban imposed on has a ban imposed on it. One reason for the ban is to allow the rule of law not the it. One reason for the ban is to allow the rule of law not the rule of officials.rule of officials.

Judicial retroactive criminal lawJudicial retroactive criminal law making allows judges to making allows judges to exercise their judgment (discretionary decision making) in exercise their judgment (discretionary decision making) in cases.cases.

Limits to law making include:Limits to law making include:

Judges are bound by the U.S and state Constitutions Judges have to follow the rule of lenity and stick Precedent Stare decisis

Rule of lenityRule of lenity: implies that when judges apply a criminal : implies that when judges apply a criminal statutes to a defendant, they must stick “clearly within statutes to a defendant, they must stick “clearly within the letter of the statute.”the letter of the statute.”

Sources of Criminal LawSources of Criminal Law

U.S. ConstitutionU.S. Constitution

State constitutionsState constitutions

Common law of England & U.S.Common law of England & U.S.

U.S. criminal codeU.S. criminal code

State criminal codesState criminal codes

Municipal ordinancesMunicipal ordinances

Judicial decisions interpreting codes Judicial decisions interpreting codes and the common lawand the common law

Common-Law OriginsCommon-Law Origins Criminal codes didn’t spring full-grown from state Criminal codes didn’t spring full-grown from state

legislatures. They evolved from a long history of ancient legislatures. They evolved from a long history of ancient offenses called common-law crimes.offenses called common-law crimes.

These crimes were created before legislatures existed These crimes were created before legislatures existed and when social order depended on obedience to and when social order depended on obedience to unwritten rules:unwritten rules:lex non scriptalex non scripta

State common law crimesState common law crimes

Following the American revolution, the 13 original states adopted the common law.

Federal common law crimes

U.S v. Hudson and Goodwin (1812): There are no federal common law crimes, however, there are exceptions, e.g., the Sherman Act, civil rights legislation, and mail fraud statutes.

Constitutional LimitsConstitutional Limits

Due process of lawDue process of law

Legislatures have to write criminal laws that are clear enough for individuals and government officials to know in advance exactly what the law bans.

Equal protection of the law Equal protection of the law

Legislatures cannot define crimes and punishments that apply differently based on inherited characteristics (race, ethnicity, gender, and age).

Individual rights and libertiesIndividual rights and liberties

Legislatures cannot make crimes that violate the rights to free speech, religion, and privacy.

Model Penal Code (MPC)Model Penal Code (MPC)

Focuses on the analysis of criminal liability Focuses on the analysis of criminal liability meaning “who is responsible for what.”meaning “who is responsible for what.”

After the adoption of MPC in 1962, more After the adoption of MPC in 1962, more than forty states changed their criminal than forty states changed their criminal codes.codes.

None of the states adopted the MPC None of the states adopted the MPC completely, but it influenced all of them to completely, but it influenced all of them to an extent, in essence, the MPC is the an extent, in essence, the MPC is the common denominator in U.S. criminal law.common denominator in U.S. criminal law.

Administrative Agency CrimesAdministrative Agency Crimes

These are rules or laws written by administrative These are rules or laws written by administrative agencies, who have been granted authority from agencies, who have been granted authority from both federal and state legislatures to create both federal and state legislatures to create laws.laws.

They are a rapidly growing source of criminal law, They are a rapidly growing source of criminal law, but they often raise constitutional questions. Two but they often raise constitutional questions. Two such questions are:such questions are:

Can legislatures authorize administrative agencies to create regulations, when there is a criminal penalty for violating such regulation?

Can legislatures allow agencies to set up their own courts to decide cases involving violations of the regulations they have created?

Criminal Law in the Federal SystemCriminal Law in the Federal System

There are 52 criminal codes: one for each of There are 52 criminal codes: one for each of the fifty states, one for the District of the fifty states, one for the District of Columbia, and the U.S. Criminal Code.Columbia, and the U.S. Criminal Code.

Definitions, defenses, and punishment of Definitions, defenses, and punishment of crimes vary across state lines.crimes vary across state lines.

Reading Case LawReading Case Law Facts of the caseFacts of the case

Action of the courtAction of the court

Intention of the courtIntention of the court

Question - Legal issue(s) involvedQuestion - Legal issue(s) involved

DecisionDecision AffirmAffirm ReverseReverse Reverse and remand – sent back to lower courtReverse and remand – sent back to lower court

Opinion Majority

Concurring Plurality Dissenting

Finding CasesFinding Cases

ExampleExample: (: (State v. Metzger State v. Metzger [Chapter 2]), just [Chapter 2]), just after the title of the case, after the title of the case, State v. Metzger, State v. Metzger, you read “319 N.W. 2d 459 (Neb. 1982).” you read “319 N.W. 2d 459 (Neb. 1982).”

Here’s how to interpret this citation:Here’s how to interpret this citation:

319 = First number is always the “Volume number”

N.W.2d = Northwestern Reporter, Second Series

459 = page number

(Neb. 1982) = Nebraska Supreme Court in the year (Neb. 1982) = Nebraska Supreme Court in the year 19821982