intro. criminal law

Ex Post Facto Laws

-constitutional rule against ex post facto laws is based on the familiar interests in providing individuals notice of criminal conduct and protecting individuals against retroactive "after the fact" statutes -legislation being applied to acts committed beforethe statute went into effect

State v. Cashen

1)Why did the court find that Cashen was not in actual possession of the marijuana? 2)Can you explain the decision of the Iowa Supreme Court in reasoning that Cashen did not have constructive possession of the marijuana? What facts were most important in the court's decision? 3)What are the best arguments that Cashen exercised constructive possession over the marijuana? 4)As an Iowa Supreme Court judge, how would you rule in Cashen?

Approaches to sentencing

A.Determinate sentences •Legislatures allow judges little discretion •Offender receives a specific sentence B.Mandatory minimum sentences •Legislature sets mandatory minimums for certain crimes regardless of mitigating factors C.Indeterminate sentences •Judges set a minimum and maximum sentence with defined limits •Decision to release an inmate prior to fully serving sentence lies with parole board D. Presumptive sentencing guidelines •A formula is used to determine the sentence E. Consecutive sentences •When convicted of multiple offenses, the defendant serves the sentences one after the other F. Concurrent sentences •When convicted of multiple offenses, the defendant serves the sentences at the same time G. Clemency and pardon •Pardon exempts an individual from additional punishment

Sentencing

A.Imprisonment •individuals sentenced to a year or less are generally sentenced to local jails. •Sentences for longer periods are typically served in state or federal prisons B. Fines •state statutes usually provide for fines as an alternative to incarceration or in addition to incarceration C.Probation •involves the suspension of a prison sentence so long as an individual continues to report to a probation officer and adhere to certain required standards of personal conduct. •conditions of probation are required to be reasonably related to the rehabilitation of the offender and the protection of the public D. Intermediate sanctions •includes house arrest with electronic monitoring short-term "shock" incarceration, community service, and restitution. •may be imposed as a criminal sentence, as a condition of probation, following imprisonment, or in combination with a fine E. Death •34 states and the federal government provide the death penalty for homicide. •other states provide life without parole F. Asset forfeiture •pursuant to a court order the "fruits or instrumentalities" of a crime may be seized by the government

Criticisms of retribution

Difficult to translate abstract justice into concrete penalties Retaliation is NOT part of human nature in civilized society Free will justification is undermined Vast majority of crimes don't require culpability to qualify for criminal punishment

Omissions

•An omission is a failure to act or a "negative act" •Without a special responsibility, individuals do not have a legal obligation to assist bystanders

Chapter 2 introduction

•Constitutional democracy -A system of government based on a constitution that limits the power of government •Founding fathers felt this form of government necessary due to the harshness of British colonial rule •Designed to protect the rights of the individual against the tyrannical tendencies of government •Realized that individuals require constitutional safeguards against the political passions and intolerance of democratic majorities

Truth in sentencing

•In 1984 the U.S. moved from indeterminate to determinate sentencing •Part of a general trend away from rehabilitation •U.S. Congress championed truth in sentencing laws •Federal prisoners now serve complete sentence reduced by any good-time credits earned while incarcerated. •Also provided funds for prison construction and renovation to states that guarantee violent offenders serve 85% of their prison sentence.

Chapter three introduction

•In the United States, courts have attempted to balance the need for swift and forceful punishment with the recognition that individuals are constitutionally entitled to fair procedures and are to be free from cruel and unusual punishments •Courts have moved away from painful and humiliating physical punishments •The United States is witnessing a revolution in sentencing

Model Penal Code

•Model Penal Code section 2.01 defines the requirement of voluntary act as follows: 1.A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable 2.The following are not voluntary acts within the meaning of this section: a.A reflex or convulsion b.A bodily movement during unconsciousness or sleep c.Conduct during hypnosis or resulting from hypnotic suggestion d.A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual •Requires that the guilt of a defendant should be based on conduct that includes a voluntary act or omission •Avoids the difficulties involved in defining voluntary conduct and, instead, lists the type of conditions that are not voluntary

Selected cases

•Sleepwalking •Homicide •Medical condition •Tourette's Syndrome •Reflex Action •Drugs in Jail

Building blocks of criminal conduct

1)Constitutional limitations—limits govt ability to declare a matter criminal 2)Actus reus—individual commits voluntary act or omission 3)Mens rea—criminal intent 4)Concurrence—between criminal act and criminal intent 5)Causation—act must be factual cause and legal/proximate cause of harm or injury.

People v. Kellogg

1)Summarize the opinions of the U.S. Supreme Court in Robinson v. California and in Powell v. Texas. 2)Why does Kellogg argue that his arrest and incarceration constitute unconstitutional cruel and unusual punishment? How does the California court respond to this argument? 3)What is the basis for Judge McDonald's dissent? Is the majority or the dissent more consistent with Supreme Court precedents? 4)In terms of public policy, discuss the impact of the majority decision on the criminal justice system. How would the minority decision affect public policy?

State v. Fields

1)Why is unconsciousness or automatism a criminal defense? 2)What facts support the defendant's contention that the killing of Barnes was an unconscious automatic act? 3)What facts undermine the contention that Fields shot Barnes as an act of unconsciousness or automatism? Why, for instance, was Fields carrying a pistol? Did he have a motive for killing Barnes? Was his conduct consistent with an individual displaying "disassociation"? 4)Are the witnesses cited by the court neutral and objective or biased? 5)Were you persuaded by Dr. Harrell's testimony? 1)Should unconsciousness or automatism reduce the seriousness of an offense rather than constitute an absolute defense? 2)What about holding Fields guilty for reckless homicide based on the fact that he was irresponsible for not seeking medical treatment for his severe emotional problems? 3)The North Carolina Supreme Court distinguishes unconsciousness or automatism from insanity. What is the difference between these two concepts? 4)Under what circumstances is a defendant entitled to the jury receiving an unconsciousness or automatism jury instruction?

Jones v. US

1)Why was this case remanded to the trial court? 2)Did both Jones and Shirley Green breach a duty of care? 3)Would you acquit Jones in the event that she informed Shirley Green that she no longer desired to take care of Robert and Anthony, and Shirley Green made no effort to remove the children from Jones's home? 4)Is it significant that Jones did not call Shirley Green as suggested by the doctor? Did the doctor breach a duty in this case? 5)What if Shirley Green left Anthony on Ms. Jones's porch with a note asking Ms. Jones to care for him, and Ms. Jones ignored Anthony? In the event that Anthony froze to death, would both Green and Jones be criminally liable?

Rule of legality

1st principle of American jurisprudence is the rule of legality Developed by common law judges and interpreted to mean nan individual may not be criminally punished for an act that was not clearly illegal when it was committed Nullum crimen sine leve nulla poena sine lege -no crime without law, no punishment without law -US constitution bans bills of attainder and ex post facto laws -US constitution requires clarity of statutes

Bill of Attainder

A legislative act that punishes an individual or a group of persons without the benefit of a trial -prohibited in 1946

Statutory clarity

A statute that fails to meet this standard is unconstitutional on the grounds that it is void for vagueness Due process requires that: -Individuals receive notice of criminal conduct -Police, prosecutors, judges, and jurors are provided with a reasonably clear statement of prohibited behavior -Individuals are not deprived of life, liberty, or property without due process of law Clarity -Clarity benefits both the public and law enforcement -Grayned v. Rockford -statute prohibited gang activity -Coates v. Cincinnati - statute prohibited 3 or more people to gather on sidewalk...in a manner to "annoy" police officer...or others passing by Definite standards for law enforcement -Kolender v. Lawson—arrested for violating statute which requires all persons detained to have id -Due process does not require "impossible standards" of clarity -Papachristou v. Jacksonville—broadly worded vagrancy statute was discriminatory Void for vagueness -Horn v. State -Nebraska v. Metzger charged w/ violating indecency statute prohibited "indecent, immodest or filthy act in presence of another person"

Juvenile death penalty-- cases

A.Kent v. U.S. B.Eddings v. Ok Supreme Court declined to rule on death penalty for juveniles--held defendant's youth and psychological and social background must be considered in mitigation of punishment. C.Thompson v. OK Supreme Court ruled the execution of a young person under the age of 16 at the time offense committed was cruel and unusual punishment.

Purposes of punishment

A.Retribution -Designed around "just deserts" -Offenders receive punishments comparable to the seriousness of the crime B.Deterrence -Offenders are punished to deter future crime -Specific: punishment to deter the offender from committing the crime in the future -General: punishment to deter others from committing the offense C. Rehabilitation -original goal of punishment in the United States -reform and transform the offender -Appeals to the notion that people are essentially good D. Incapacitation -Removes offender from society to prevent further harm to society -Accepts that some offenders cannot be deterred or rehabilitated E. Restoration -Requires the offender to engage in restitution -Restitution can consist of: •financial reimbursement or •community service -Places the emphasis on the victim -Requires action by the offender to make the victim and community whole once again

Parties to a crime (common law)

Categories of parties to a crime: 1)Principles in the first degree - perpetrators of crime 2)Principles in the second degree - assist perpetrators (lookout, getaway drivers) 3)Accessory before the fact - help prepare for crime 4)Accessory after the fact - assist knowing crime committed **Most jurisdictions no longer use the common law approach to parties of crime. Two parties (besides principles): 1)Accomplices—involved before or during the crime; usually charged w/same offense as principle. 2)Accessories—involved after the commission of the crime; usually charged w/separate, lesser offense.

Accessory after the fact

Common law •Required that a defendant conceal or assist an individual whom he or she knew had committed a felony in order to hinder the perpetrator's arrest, prosecution, or conviction. • Accessory after the fact were treated as accomplices and subject to the samepunishment as the offender Elements of accessory after the fact: 1)Commission of a felony: there must be a completed felony. The crime need not have been detected or formal charges filed 2)Knowledge: the defendant must possess knowledge that the individual whom he or she is assisting has committed a felony 3) Affirmative act: the accessory must take affirmative steps to hinder the felon's arrest; a refusal or failure to report the crime or to provide information to the authorities is not sufficient 4) Criminal intent: the defendant must provide assistance with the intent or purpose of hindering the detection, apprehension, prosecution, conviction, or punishment of the individual receiving assistance

Omissions as criminal acts

Criminal Omission Legal duty •Failure to report - not providing information legally required to provide •Failure to intervene -not actively preventing or interrupting injuries and death to persons or damage and destruction of property

Supreme Court and Ex Post Facto Laws

Determining whether a retroactive application of the law violates the prohibition on ex post facto laws has proven difficult Stogner v. California (p.15) Supreme Ct. ruled that CA law which authorizes prosecution of child abuse allegations which were previously banned by 3-year statute/limitations was prohibited ex post facto law

Prevention Rehabilitation

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

Victim's rights

Every state and DC provides monetary payments to various categories of crime victims -43 states have son of sam laws which prohibit convicted felons from profiting from books, films, tv programs which recount crime; any funds earned go to victims. •In 1986, the U.S. Congress passed the Victims of Crime Act (VOCA) oThis provides for a compensation fund and establishes the Office for Victims of Crime, which is responsible for coordinating all victim-related federal programs •California, along with 19 other states, has adopted constitutional amendments protecting victims •Crime Victims Rights Act of 2004 oRight to be informed of all relevant info involving the prosecution, imprisonment and release of an offender as well as the right to compensation and the return of property. •Another important development is the U.S. Supreme Court's approval of victim impact statements in death penalty cases because "just as the murderer should be considered an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family." •Federal government and an estimated 20 states have laws that authorize direct victim involvement at sentencing for criminal offenses, and all 50 states and the District of Columbia provide for some form of written submissions.

Bond v. US

Facts -Upon learning that her friend, Haynes, was pregnant by her husband, Bond, a microbiologist stole chemicals from employer and used them along with another chemical (arsenic) to spread around the Haynes's house. Haynes observed the chemicals and avoided them; however on one occasion she suffered a chemical burn. Although she alerted the police, they did not find a crime; however when Bond was observed stuffing chemical into mailbox, she was arrested. Bond was charged with mail theft and possessing and using a chemical weapon. Issue: was the use of arsenic a "chemical weapon" in violation of the statue, Chemical weapons implementation n Arguments: statute was not intended to indicate common household items were "chemical weapons" under the statute. Federal government argued that Bond violated the statute by using those common items as weapons Opinion: korus reversed decision which found that Bond violated statute, finding that "the global need to prevent chemical warfare does not require the Federal government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon."

Core felonies

Felonies against persons: -murder -manslaughter -rape -kidnapping -robbery Against property: -theft -robbery -arson -burglary

Classifying crimes

Felonies- crimes punishable by death or confinement Misdemeanors- crimes punishable by fine and/or confinement in local jail up to one year

Possession REPEAT

Fleeting possession rule •Allows for an individual to momentarily be in possession of contraband before quickly disposing of it

Prevention

General deterrence -punish the offender to make an example of them and thereby deter others from committing future crimes 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 -behavior is too unpredictable to reduce to mechanistic formula -threats of punishment don't affect all crimes/criminal equally -deterrence is unjust because it punishes for sake of example 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 Criticism of incapacitation: -incarceration shifts criminality from outside prison to inside prison -violent offenders continue offending in prison, property offenders continue also -incarceration nis generally temporary

People v. Cervantes

ISSUE: Should Cervantes be found guilty for causing the murder of a rival gang member, even though he did not shoot the person?

What is legal duty?

Legal duty-- can be created by: (1)Statutes (2)Contracts (3)Special relationships: •Parent/child •Doctor/patient •Employer/employee •Carrier/passenger •Husband/wife

CC cont.

Mala in se (inherently evil) crimes require criminal intent Mala prohibita offenses- crimes prohibited by specific statute/ordinance

Crimes

Originate from a list of "can't" and "musts" -list applies to everyone -crimes injure another individual and whole community -criminal prosecutions brought by state a/individuals -convicted offenders pay $$ to the state or serve time -criminal conviction is condemnation by whole community suit -the state has to prove all elements of the crime by doubt.

Torts

Originate from a list of "cants" and "musts" -list applies to everyone -injure another individual and the whole community -private parties bring torts actions against other parties -defendants who lose in tort cases pay $$ to the plaintiff -tort award compensates the plaintiff who brought the burden on the plaintiff is to prove "proof beyond a reasonable responsibility by a preponderance of the evidence.

Police power

Police enforcement of criminal laws -federal, state, and local governments' executive, legislative and judiciary act to carry out the "broad public policies regarding public safety, public economy, public property, public morals, and public health."

Possession

Possession - A preparatory offense Consists of: •Actual possession--Contraband within the physical possession or immediate reach of the defendant •Constructive possession--Contraband outside the defendant's physical control but within an area of which defendant exercises control, such as in defendant's home •Joint possession--Multiple individuals share possession •Knowing possession—Defendant's awareness of possession •Mere possession--Physical control over an object without the individual's knowledge

Theories of criminal punishment

Prevention Retribution -inflicting on offenders physical and psychological pain so that offenders can pay for their crimes -punishment is only a means to a greater good, usually the prevention or at least the reduction of future crime

Criminal punishment in US society

Punishment -intentionally inflicting pain or other unpleasant consequences on another person "Criminal Punishment" -Penalties that meet four criteria: 1. inflict pain or other unpleasant consequences 2. Prescribe a punishment in the same law that defines the crime 3. Administered intentionally 4. Administered by the state

Hranicky v. State

QUESTIONS 1)Did Hranicky's disregard constitute a substantial and unjustifiable risk? Did his actions constitute a gross deviation from the standard of conduct that a law-abiding person would observe in a similar situation? 2)Why does the court consider it to be a close call as to whether Hranicky was aware of the risk posed by the tigers to Lauren? 3)What if Bobby Lee Hranicky had been mauled and killed by the tiger? Would a court convict Kelly Hranicky of recklessly causing Bobby Lee's death?

Commonwealth v. Rink

QUESTIONS 1)What is the intent and act requirement of the Pennsylvania ethnic intimidation statute? 2)Describe the evidence that the court relies on to support Rink's conviction for ethnic intimidation.

State v. Nations "underage dancer"

QUESTIONS 1)Why does the court conclude that the defendant is not guilty under the statute of endangering the welfare of the young dancer? 2)In your view, was the defendant aware that there was a "high probability" that the dancer was under 17 and for that reason intentionally avoided checking her age? 3)What is the impact of the court decision for offenses involving the possession of narcotics?

State v. Ulvinen "mother in law accomplice in murder"

QUESTIONS FOR DISCUSSION... 1.What facts did the prosecutor rely on to establish Ms. Ulvinen's guilt? Why did the Minnesota Supreme Court reverse Ms. Ulvinen's conviction? 2.Does Ms. Ulvinen's behavior following Carol Hoffman's murder indicate that she approved of Carol's killing? Does Ms. Ulvinen's involvement in covering up the crime indicate that she shared her son's intent to kill Carol Hoffman? 3.Is it significant that Ms. Ulvinen took the initiative in informing David that she was not getting along with Carol and that Carol planned to leave with the children? What of Ms. Ulvinen's response that killing Carol would be beneficial for the children? How do Ms. Ulvinen's comments to David on the day of the killing differ from her earlier responses to David's statements that he intended to kill Carol? Is it significant that David killed Carol only following his conversation with his mother? Was the court correct in characterizing Ms. Ulvinen as passive? 4.Did Ms. Ulvinen have a duty to protect her daughter-in-law?

US v. Fountain "prison guards murder"

Questions for Discussion 1)Judge Richard Posner states that it is sufficient that the aider and abettor "knew the principal's purpose" and contrasts this with an intent to "bring about" a crime. Explain the difference between these two approaches to intent using the facts in Fountain to illustrate your answer. 2)What was Gometz's intent in providing the shank to Fountain? Would Gometz have been convicted under either a purpose or knowledge standard? 3)Do you agree with Judge Posner that a knowledge standard should be employed for more serious offenses in order to deter criminal activity? Would such a test cause difficulties for businesses selling goods to the public?

Sherron v. State "wife accessory to rape of daughter"

Questions for Discussion 1)What are the elements of accessory after the fact utilized by the court in Sherron? 2)Why does the court conclude that the facts support Sherron's guilt as an accessory after the fact? 3)What facts indicate that Sherron's primary concern after learning of Xavier's molestation of her daughter was to "keep the crime of rape from being exposed"? What facts indicate that her intent was to "keep her young daughter from giving birth to a child who was fathered by rape"? 4)Do other individuals discussed in the court's opinion have criminal liability as accessories after the fact? 5)How would you decide this case?

Commonwealth v. Koczara "bar owner liable underage drinking"

Questions for Discussion... 1)What is the justification for the vicarious liability of John Koczwara? Is there any evidence that Koczwara was aware of the sale of liquor to juveniles? Could he have prevented his employees from selling the liquor? 2)Why does the Supreme Court of Pennsylvania not affirm Koczwara's prison sentence? 3)What are the reasons that Judge Musmanno dissents from Koczwara's conviction? Would following Judge Musmanno'sview weaken the law against serving alcohol to minors? 4)This was Koczwara's second offense. Will fining Koczwaraencourage him to prevent the sale of alcohol to minors in the future?

State v. Robinson "aiding and abetting"

Questions for Discussion: 1)Describe the facts leading up to Pannell's killing of Thomas. 2)What is the basis for prosecuting and convicting Robinson for second-degree murder? 3)Summarize the arguments of the dissenting judges in Robinson. 4)As a judge, would you hold Robinson liable for second-degree murder or assault with an intent to do great bodily harm?

Criminal punishment and status offenses

Robinson v. California Supreme Court ruled that it was cruel and unusual punishment to impose criminal penalties on Robinson based on his conviction of the status offense of narcotics addiction State v. Hines (p.65)

Death penalty cases

Stanford v. KY - execution of individuals 16 or 17 could not be considered either cruel or unusual?? Roper v. Simmons (questions p.57) Kennedy v. LA (554 U.S. 507) death penalty for rape of child

Sources of Criminal Law

State criminal codes (**most of criminal law) Municipal codes US criminal code Criminal court opinions Criminal law enforcement agencies

Privacy

The idea that there should be a legal right to privacywas first expressed in an 1890 article in the Harvard Law Review written by Samuel D. Warren and Louis D. Brandeis, who was later appointed to the U.S. Supreme Court In 1905, the Supreme Court of Georgia became the first court to recognize an individual's right to privacy when it ruled that the New England Life insurance company illegally used the image of artist Paolo Pavesich in an ad that falsely claimed that he endorsed the company -decision served as a precedent for the recognition of privacy by courts in other states Constitutional Right to Privacy •First recognized in Griswold v. Connecticut in 1965 •U.S. Supreme Court proclaimed that although privacy was not explicitly mentioned in the U.S. Constitution, it was implicitly incorporated into the text •Right to privacy recognized in Griswold guarantees that we are free to make the day-to-day decisions that define our unique personality: a)what we eat, read, and watch; b)where we live and how we spend our time, dress, and act; and c)with whom we associate and work Right to Privacy -Sanctity of the home -Intimate activities -Information -Public portrayal Right to Privacy and same-sex relations between consenting adults in the home -What activities are within the right of privacy in a home? -Bowers v. Hardwick -Lawrence v. Texas

Automobiles, parents, and vicarious liability

Traffic tickets •Vicarious liability is also used to hold the owners of automobiles liable for traffic tickets issued to their automobiles Parents •There is a recent trend toward holding parents vicariously liable for the crimes of their children •Parents must take reasonable steps to prevent their children from engaging in serious or persistent criminal behavior •Parental responsibility laws

Status offenses

U.S. Supreme Court ruled unconstitutional laws that punish a status... •One such law would punish the status of being a drug addict •Such a law would be cruel and unusual •Such laws would violate the Eighth and Fourteenth Amendments to the Constitution

chapter four introduction

•Actus reus is the criminal act (or failure to act) required for a crime to occur •Must be paired with mens rea, criminal intent •Three components -A voluntary act -That causes -A social harm condemned under a criminal statute •Attendant circumstances must be considered •For result crimes, the act must be the actual cause of the harm •Concurrence must exist between the act and intent

Cruel and unusual punishment again

•Amount of punishment: sentences for a term of years -Three strikes -An example of determinate sentencing •The amount of punishment: drug offenses -Fair Sentencing Act of 2010 -Mandatory minimum laws have several flaws -Inflexibility -Disparities in enforcement -Increasing prison population -Disproportionate affect on minorities and women

Strict liability

•An offense that does not require intent •Only an act is required •The offense is not a common law crime •Strict liability offenses posses a danger to a large number of people •The risk of convicting an innocent is outweighed by the public interest in preventing social harm •Punishments are relatively minor •Convictions do not harm defendants' reputation •Acts that most people avoid •Those that do engage in these acts usually do possess criminal intent •Strict liability offenses have their origin in the industrial development of the United States in the middle of the nineteenth century •The U.S. Congress and various state legislatures enacted a number of public welfare offenses that were intended to protect society against impure food, defective drugs, pollution, and unsafe working conditions, trucks, and railroads. •These mala prohibita offenses (an act is wrong because it is prohibited) are distinguished from those crimes that are mala in se (inherently wrongful, such as rape, robbery, and murder) •Courts look to several factors in addition to the textual language in determining whether a statute should be interpreted as providing for strict liability

Criminal acts

•Crime punishes acts, not just intents or thoughts •Acts that are punished create harm or potential for harm •Criminal acts are punished proportionately to this (potential) harm •Only voluntary acts are punished A voluntary criminal act •A more problematic issue is the requirement that a crime consist of a voluntary act oAn involuntary act such as a spasm or reflex will not suffice •Requirement of a voluntary act is based on the belief that it would be fundamentally unfair to punish individuals who do not consciously choose to engage in criminal activity and who therefore cannot be considered morally blameworthy. A voluntary criminal act •There is no need to deter, incapacitate, or rehabilitate individuals who involuntarily engage in criminal conduct

Cruel and unusual punishment

•Eighth Amendment--primary constitutional check on sentencing •Supreme Court has ruled that the prohibition against cruel and unusual punishment applies to the states as well as to the federal government, and virtually every state constitution contains similar language Methods of punishment—considerations: 1)Prevailing social values - punishment must be acceptable to society 2)Penological purpose - punishment must be strictly necessary to the achievement of a valid correctional goal, such as deterrence, rehabilitation, or incapacitation 3)Human dignity - individuals subject to the punishment must be treated with human respect and dignity Amount of punishment: capital punishment •"punishment must not be excessive"; • punishment must "fit the crime" •Judges have been particularly concerned with the proportionality of the death penalty •Lethal injection -- is this cruel an unusual punishment?

Sentencing guidelines

•Established in 1987 by the U.S. Sentencing Commission •Sentencing Reform Act abandoned rehabilitation as a purpose of imprisonment •Federal guidelines based on formula that reflects the seriousness and characteristics of the offense and criminal history of offender •Studies suggest that the guidelines have increased the percentage of defendants who receive prison terms

Freedom of speech

•First Amendment to the U.S. Constitution provides that "Congress shall make no law . . . abridging the freedom of the speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" •U.S. Supreme Court extended this prohibition to the states in a 1925 decision in which the Court proclaimed that "freedom of speech and of the press . . . are among the fundamental personal rights and 'liberties' protected under the Due Process Clause of the Fourteenth Amendment from impairment by the States" Four functions central to democracy performed by freedom of expression under the First Amendment: 1)Freedom of expression contributes to individual self-fulfillment 2)Freedom of expression ensures a vigorous "marketplace of ideas" 3)Freedom of expression promotes social stability 4)Freedom of expression ensures that there is a steady stream of innovative ideas and enables the government to identify and address newly arising issues Categories of speech that may be regulated and are NOT subject to First amendment protection include -fighting words -incitement to violent action -true threats -obscenity -libel Speech lacking First Amendment protection shares several common characteristics: •expression lacks social value •expression directly causes social harm or injury •expression is narrowly defined to avoid discouraging and deterring individuals from engaging in free and open debate Over breadth •Provides that a statute is unconstitutional that is so broadly and imprecisely drafted that it encompasses and prohibits a substantial amount of protected speech relative to the coverage of the statute Hate Speech •one of the central challenges confronting the First Amendment •defined as speech that "denigrates, humiliates, and attacks individuals on account of race, religion, ethnicity, nationality, gender, sexual preference, or other personal characteristics and preferences

Equal protection REPEAT

•Judicial decisions have consistently held that it is unconstitutional for a judge to base a sentence on a defendant's race, gender, ethnicity, or nationality •Statutes that provide different sentences based on gender also have been held to be in violation of the Equal Protection Clause •The general rule is that a defendant must demonstrate both a discriminatory impact and a discriminatory intent •People v. Superior Court

Plea bargaining

•Majority of federal & state criminal charges disposed of by a guilty plea as part of plea bargain. •Plea bargain - defendant agrees to plead guilty of nolo contendere •Types of plea bargains: 1)Charges 2)Sentence 3)Sentence recommendations •Favored because in pleading guilty Defendant accepts responsibility and takes step toward rehabilitation

Mens Rea

•Mens rea is criminal intent •Required for a crime to occur •Must be paired with actus reus •Both the act and intent must be proved beyond a reasonable doubt for a conviction in court •Intent is required to hold accountable only individuals who are "morally blameworthy" •The appropriate punishment of an act depends to a large extent on whether the act was intentional or accidental •Law texts traditionally have repeated that actus non facit rum nisi mens sit rea: "There can be no crime, large or small, without an evil mind" •"mental part" of crimes is commonly termed mens rea("guilty mind") or scienter ("guilty knowledge") or criminal intent Evidentiary burden: •prosecution must establish the required mens rea beyond a reasonable doubt •Most reliable evidence of mens rea is confession •Circumstantial evidence--See People v. Conley Model Penal Code standard -Common law provided two categories •General: intent to carry out an act •Specific: intent to carry out an act with specific results

Model Penal code

•Minimum requirements of culpability •"[A] person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently . . . with respect to each material element of the offense" •All crimes requiring a mental element must include one of the four mental states provided in the Model Penal Code •These four types of intent, in descending order of culpability, are: -Purposely -Knowingly -Recklessly -Negligently Purposely •Most serious category •Requires the actions of the defendant to be intentional or deliberate Knowingly •Occurs when an individual is aware that circumstances exist or that a result is practically certain to follow from her conduct Recklessly •Twofold test 1)A conscious disregard of a substantial and unjustifiable risk 2)A gross deviation from the standard that a law abiding person would observe in the same situation Negligently •Individual not aware of the risk •Behavior grossly deviates from the standard of care that a reasonable person would exhibit under a similar set of circumstances

Moral blameworthiness- reasons

•Responsibility. It is just and fair to hold a person accountable who intentionally chooses to commit a crime. •Deterrence. Individuals who act with a criminal intent pose a threat to society and should be punished in order to discourage them from violating the law in the future and in order to deter others from choosing to violate the law. •Punishment. The punishment should fit the crime. The severity of criminal punishment should depend on whether an individual's act was intentional, reckless, or accidental.

Right to bear arms

•Second Amendment to the U.S. Constitution provides that "A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." •Historically the Court interpreted this to mean those actively participating in the militia •Gun rights activists interpret this to mean that the right belongs to all people

Criminal intent

•Specific intent crimes are referred to crimes of cause and result •Transferred intent--An individual intends to cause harm to one person and injures another •Constructive intent--An individual acts in a grossly and wantonly reckless manner

Actus Reus of accomplice liability

•Statutes and judicial decisions describe the actus reus of accomplice liability using a range of seemingly confusing terms such as aid, abet, encourage, and command •Typically, the act of an accomplice can be very minor •Mere presence rule -Simply being present and watching a criminal act does not satisfy the needed act for liability -See Bailey v. U.S.(p.134) -See State v. Walden, (p.135) - mother fails to intervene in fatal beating

Causation

•The criminal act must cause a particular harm or result •Must be proved beyond a reasonable doubt •Important to ensure individual responsibility •Important to ensure fairness of punishment •Cause in fact -act must be the cause in fact of the harm the "but for" test •Legal or proximate cause of harm -Is it fair to hold the defendant legally responsible for an injury or death? Intervening causes of harm may remove responsibility from the defendant -Coincidental intervening acts oActions of the defendant place a victim in a particular place where he is harmed by an unforeseeable event -Responsive intervening acts oActions of the defendant cause the victim to respond in a way where he is harmed BUT the response is foreseeable

Concurrence

•The link required between the criminal act and intent •Must be proved beyond a reasonable doubt •Chronological concurrence -Intent must exist at the same time as the act

Mens Rea of accomplice liability

•There is a lack of agreement over the required mensrea for accomplice liability •Typically, a "dual intent" must be satisfied where the defendant must possess intent -To assist the primary criminal party -That the primary party commit the offense charged Natural and probable consequences doctrine -A person encouraging or facilitating the commission of a crime will be held liable as an accomplice for the crime aided, as well as for crimes that are the natural and probable outcome of the criminal conduct.

Omissions REPEAT

•To be convicted of a crime of omission, the prosecution must show that the defendant possessed knowledge of the peril, failed to act, and this failure caused the harm •Some states have passed Good Samaritan Laws -Citizens are required to provide reasonable medical assistance to one in need -Such citizens are kept safe from civil liability, assuming that they did not act in a grossly negligent manner American and European bystander rules -Basic rule in the United States is that an individual is not legally required to assist a person who is in peril -This principle was clearly established in 1907 in People v. Beardsley -American bystander rule contrasts with the European bystander rule common in Europe that obligates individuals to intervene Duty to intervene •Primary requirement is that a duty must be recognized under either the common law or a statute •Status: the common law recognized that individuals possess an obligation to assist their child •Statute: imposes a duty of care. This may be a criminal statute requiring that a doctor report child abuse or a statute that sets forth the obligations of parents Duty to intervene •Contract: an obligation may be created by an agreement oCommonwealth v. Pestinikas •Assumption of a duty: an individual who voluntarily intervenes to assist another is charged with a duty of care oPeople v. Oliver; State v. Gargus •Creation of peril: an individual who intentionally or negligently places another in danger has a duty of rescue Duty to intervene •Control: an individual has a duty to direct and to care for those under his or her supervision and command, including employees or members of the military •Property owner: property owners owe a duty of care to those invited onto their land Duty to intervene In addition to establishing a duty, the prosecutor must demonstrate a number of other facts beyond a reasonable doubt-- •Possession of knowledge of the peril •Acted with the required intent •Caused the harm to the victim

Equal protection

•U.S. Constitution did not provide for the clause •Equal Protection Clause was rarely invoked for almost 100 years Three levels of Scrutiny: 1)Rational basis: non-suspect classes 2)Strict scrutiny: race, ethnicity, suspect classes and fundamental rights 3)Intermediate scrutiny: gender REPEAT SLIDE 1)Rational basis test: a classification is presumed valid so long as it is rationally related to a constitutionally permissible state interest 2)Strict scrutiny: a law singling out a racial or ethnic minority must be strictly necessary, and there must be no alternative approach to advancing a compelling state interest. Law limits fundamental rights 3)Intermediate scrutiny: distinctions on the grounds of gender must be substantially related to an important government objective

Vicarious liability

•Vicarious liability is employed to hold employers and business executives and corporations (which are considered "legal persons") liable for the criminal acts of employees. •Imposes criminal liability on an individual for a criminal act committed by another Corporate liability •Corporate crime may result in the criminal conviction of the employee committing the offense as well as the extension of vicarious liability to the owner and the corporation •Supreme Court, in United States v. Dotterweich,affirmed in 1943 that corporations, along with corporate executives and employees, could be held criminally liable under the Food and Drug Act •Once it is determined that a statute encompasses corporations, there are two primary tests for determining whether a corporation should be criminally liable under the statute: oRespondeat Superior or the Responsibility of a Superior oModel Penal Code Section 2.07 •Respondeat Superior or the Responsibility of a Superior oA corporation may be held liable for the conduct of an employee who commits a crime within the scope of his or her employment who possesses the intent to benefit the corporation -Model Penal Code Section 2.07 oCriminal liability is imposed in those instances that the criminal conduct is authorized, requested, commanded, performed, or recklessly tolerated by the board of directors or by a high managerial official acting on behalf of the corporation within the scope of his or her office or employment

State v. Costella "hate crime"

•Would you hold a defendant guilty of a hate crime if the individual against whom the crime is directed, in fact, is not a member of the targeted group? •The N.H. Supreme Court heard a case involving a hate crime against two individuals who a self-identified Nazi incorrectly believed were Jewish. The Court held that society is "harmed by a bias-motivated crime regardless of whether the victim is, in fact, a member of the protected class that the defendant has targeted." •Do you agree with this holding?