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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”
•
•
•
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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 Law
2 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 Law
2 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 Law
2 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 Excuse
Examples:
1. Justification – Self-Defense
2. Excuse - Insanity
Classification of the Criminal Law
2 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 Codes
Codification
• 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 Codes
Codification
• 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 Codes
Codification
Model Penal Code – 3 Elements of Criminal
Liability
1. 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 Punishment
Retribution
• 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 Deterrence
Punishing convicted offenders to deter THEM
(The Individual) from committing any more
crimes in the future
General Deterrence
The 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
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•
•
•
•
•
Title
Procedural History
Judge
Facts
Judgment/Decision
Opinion
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–
–
–
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
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•
•
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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