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Criminal Law—A Body of Public Law That Prosecutes Crimes That Involve Social Harm

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Criminal Law—A Body of Public Law That Prosecutes Crimes That Involve Social Harm Criminal Law—a body of public law that prosecutes crimes that involve social harm. I. History and Purpose a. Crime—act/omission and its state of mind, that if proven, incurs a formal and solemn pronouncement of the moral condemnation of the community b. Criminal law vs. Civil Law—there are a number of fundamental differences. i. Higher evidentiary burden ii. Higher levels of punishment—deprivation of liberty vs. monetary judgments only (although civil commitment is possible) iii. Double jeopardy—jeopardy attaches when the jury is seated. No DJ if prosecuted in civil trial later or if prosecuted in both state and federal courts. iv. Victim has no control over charges/proceedings v. Criminal conviction results in moral condemnation c. Originally a large body of common law crimes, but now, most crimes determined by the legislature. i. Prohibition of ex post facto laws—laws made after crime committed ii. Prohibition of bills of attainder—laws specific to one person’s conduct II. Criminal Process a. Crimes are defined in advance b. Crime must have been committed/reported (victim has discretion not to report) c. Investigation by police into allegations (police have discretion on whether to pursue) i. Standards of Proof 1. arbitrary and capricious—lowest standard 2. probable cause—standard for arrest warrant/indictment by grand jury 3. preponderance of evidence—more likely than not—civil standard 4. beyond a reasonable doubt—standard at trial for conviction d. arrest of suspect—can search at this point without a warrant and then booking e. probable cause hearing—before a magistrate to determine if can hold (defendant can waive this hearing)—if have grand jury indictment then no probable cause hearing needed (discretion of magistrate/grand jury not to issue warrant/indictment) f. order of arrest issued—from either magistrate or grand jury. Arrest warrant gives details of what charged with, bond set here or at initial appearance g. initial appearance—before district court judge, informed of charges, appointment of counsel (if don’t have any), bond set, sufficiency of indictment investigated (prosecutor has discretion not to pursue charges, judge has discretion not to charge) h. Discovery—no formal discovery in federal, open discovery in state— failure to turn over exculpatory evidence is a constitutional violation i. Arraignment—pleading (guilty or not guilty) j. Jury selection—strike for cause or not, unanimous verdict required k. Motion for directed verdict—MUST do this—std for defendant is no rational fact finder could believe guilt beyond reasonable doubt l. Jury instructions—important m. Sentencing—how much time, additional hearing/investigation n. Appeal i. Direct—something wrong at trial ii. Collateral—constitutional claims raised at trial iii. Discretion of judge, clemency III. Theories of Punishment a. Utilitarian theory—punishment is justifiable if the expected result is a reduction in overall pain of the crime that would otherwise occur (maximize good in society)—forward looking theory i. Criticisms— 1. deterrence—justifies using people solely as means to an end (examples to society) 2. utilitarianism theoretically could justify punishment of a person known to be innocent of wrongdoing if it furthers the good of society (arresting someone just to placate a mob) 3. criminals can’t really be reformed b. Retributivism—punishment is justified when deserved by the wrongdoer—justified even if no reduction in overall crime levels— backward looking theory i. Criticisms— 1. intentional infliction of pain is senseless and cruel 2. retributivism glorifies anger and legitimizes hatred 3. irrational because it is founded on anger rather than reason c. Reasons for punishment i. General deterrence—punishing A so B and C won’t commit the same offense (utilitarian) ii. Specific deterrence—punishing A so A won’t commit crime again (utilitarian) 1. indimidation—punishment reminds A not to commit the crime again (utilitarian) iii. Incapacitation—make it so A can’t commit the crime again 1. civil commitment—committing and individual before they commit a crime, but with no moral condemnation. iv. Rehabilitation—changing a behavior to conform to the societal norm (fix A so A won’t commit crime again) (utilitarian) v. Denunciation—public statement of condemnation for an action that was wrongly taken—alternative to either retributivist or utilitarian vi. Retribution—repayment of A for the wrong that they have done. “lex talionis”—an eye for an eye 1. retribution is a limiting principle—don’t punish for more than the wrong a. assaultive retribution—morally right to hate criminals b. protective retribution—principle of personhood— punishment secures the moral balance c. victim vindication—punishment reaffirms that the victim is worthy as a human being of respect d. negative retributivism—guilt is a necessary condition of punishment (even utilitarianism embraces this concept) d. Sentencing Guidelines—parole no longer in play, so statutes set max and leaves room underneath or will set several options for judge to choose from. Death option is always left up to a jury. i. Jail time usually increases if the offender is bad (repeat offender) or if the offense is particularly bad (torture, etc) e. Jury Nullification—when the jury, believing that all of the elements of a crime have been proven, chooses to acquit the defendant on other principles. i. Arguments against—fairness (leads to inconsistent sentences), reduced deterrence, encourage defendants to go to trial and give sob stories, reduces confidence in system, evidence becomes about defendant rather than the crime. ii. Arguments for—serves as truth seeking element, avoids overly harsh sentences, reflects community’s decision not to place moral condemnation on act, checks the power of the system (to charge) and the legislature (in defining the crime) iii. Nullification instructions are never given to a jury and defense counsel usually cannot make the argument to the jury that they should consider nullification 1. race based nullification—some people advocate self help for racial minorities being charged. If stealing from department store then let them off, if stealing from neighbor then convict—teach community values. IV. Limitations on Punishment a. Standards of Proof—if problems arise in proving all of the elements of a crime then legislature may reduce burden to make it easier to prove. i. Judges can also affect the standard 1. jury instructions—tells jury what law is and what requirements of prosecution are (reviewed de novo on appeal) 2. directed verdict—takes fact finding away from the jury (appellate review is clear error on issues of fact) 3. JNOV—reverse jury’s decision (appellate review is clear error on issues of fact) a. Since last two have higher standards on appellate review they are safer for the trial judge to have ruling upheld b. Proportionality—closely linked to retributive theory—what punishment is appropriate for the crime that was committed? Punishment is right and morally obligatory. Utilitarians use it to deter future harm, thus punishment is undesirable unless it results in a net benefit. i. Two concepts: 1. How much or what punishment is excessive or disproportionate to a particular crime? 2. Under what circumstances is disproportional punishment not only unwise or unfair, but also unconstitutional (8th amendment)? a. Cruel and unusual punishment—judged on standard of ‘as applied’ in this case. For death penalty—is it cruel and unusual on its face, or only when it outweighs the crime committed? i. Coker v. Georgia—criminal escapes and rapes a woman (prior rape/robbery), convicted to death, Supreme Court overturns because said out of proportion with crime of raping adult woman (strongly retributivist approach) ii. Retributivitists—focus on individual, range of sentencing options—offender owes a debt to society and punishment is mode of repayment. Rejects ‘lex talionis’, but favors treating offender with dignity, punishment scaled in proportion to the ‘badness’ of the crime (theft is low, murder is high) iii. Utilitarians—want punishment that is right amount to deter and no more—what is the effect on society—set punishments to let criminals know what they are in for. 1. punishment not less than required to outweigh potential profit to criminal for committing the crime 2. greater the mischief, greater the punishment 3. grade offenses in such a way as to induce person to choose the lesser evil 4. punishment induce criminal to do no more mischief than necessary for his purpose 5. punishment no more than necessary to bring into conformity with previous goals. c. Legality principle—prohibition on retroactive criminal lawmaking— overriding criminal law doctrine i. Rationale— 1. prevent government from enacting vindictive, retroactive legislation 2. furthers individual autonomy—allows individuals to pursue their own purposes and ends a. ex post facto requirement applies to legislature in a similar fashion as due process does to courts—if a statute is constructed narrowly (or interpreted that way by the court) then it can’t be enlarged later to pick up an unwanted behavior. 3. fair notice—gives warning to effects of actions and allows individuals to rely on laws as enacted a. retribution and deterrence are both in play here— can’t punish people for things that they didn’t know were wrong and if people don’t know then they aren’t deterred ii. Void for vagueness—statutes cannot be so unclear such that people of ordinary intelligence have to guess at the meaning. 1. Wrainwright v. Stone, In re Banks—void for vagueness— definition of crime not clear, or could be prosecuted for exercising a constitutional right (like free speech) 2. City of Chicago v. Morales—void for vagueness— definition of loitering was not clear and allowed for too much discretion for police/prosecutor in deciding who was violating the law. d. Rule of Lenity—if a statute is unclear or subject to conflicting interpretations then it is strictly construed against the government.
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