1. Dr. Patrick Bamwine Chapter One: The Nature and Limits of Criminal Law

2. Some Important Concepts…
Democracy
Constitutions
Principles of criminal liability
Defenses to crime
Principle of limited methods

3. Limits to Law Non-criminal wrongs
“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.
License
Taxes, Licensing, Permits, etc. and pursuing those who violate the laws.

4. Limits to Law Social condemnation
Friends and other people who matter should criticize what the actors did and maybe even cut off their relationship with them for doing it.
Individual conscience
Leave the control to the individual’s guilty conscience.

5. Limits to Law No action Ignore what the actors did
Nolle Prosequi = No Prosecution
Social encouragement
The actors should be praised for what they did

6. Constitutional Limits
Due 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
Legislatures can’t define crimes and punishments that apply differently based on inherited characteristics (race, ethnicity, gender, and age)
Individual rights and liberties
Legislatures can’t make crimes that violate the rights to free speech, religion, and privacy

7. Principles of Criminal Liability
A conduct that was committed
Unjustifiably and inexcusably
Inflicts or threatens substantial harm
To individual or public interests

8. Criminal Liability Actus reus (criminal act)
We punish people for what they do, not for what they intend to do or for who they are
Mens rea (criminal intent)
Punishment
(at least for serious crimes) depends on the blameworthiness of the intent that triggers the criminal act
Concurrence
Criminal intent (mens rea) has to trigger criminal acts (actus reus) and cause criminal harm

9. Crimes vs. Non-criminal wrongs (Torts)
Crimes are actions brought against members of the society
Non-criminal (civil) wrongs also known as “torts”, makes it possible for one individual to sue another and receive monetary compensations
Crime is different from “torts” in the sense that crime hurts the community, but “torts” hurts only the individual

10. Limits on Punishments
The constitutional ban on cruel and unusual punishments
8th Amendment
The principle of limited methods

11. Trends in Punishment
Historically, societies have justified punishment on the grounds of retribution, deterrence, and rehabilitation
Retribution dominated penal policy until 18th century, when it was replaced with deterrence and incapacitation
Rehabilitation replaced deterrence in the late 20th century and was the major form of punishment until 1960.
By mid-1980’s retribution and incapacitation were the primary forms of criminal punishment.

12. Criminal Punishment Criteria for criminal punishment
Inflict pain or other consequences
Prescribed within the law defining the crime
Administered intentionally
Administered by the state as punishment

13. Criminal Punishment (Continued)
Prevention
General deterrence
Special deterrence (Specific)
Incapacitation
Rehabilitation
Retribution
An “eye for an eye” captures the idea of retribution

14. General & specific parts of criminal law
General 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 law
The special part defines specific crimes and arranges them into groups according to the subject matter

15. Crime Classification Felonies
Crimes punishable by death or imprisonment in a state facility for life or a period of time.
Misdemeanors
Crimes punishable by a fine or a jail term of up to a year in a local facility.

16. Societal Controversy…
Grading Crimes
Malum in se
Inherently evil conduct that has injurious consequences
Malum prohibitum
Conduct prohibited by law because they are not evil in nature.
Societal Controversy…
Every society may disagree on what is “evil” behavior and what behavior “should” be criminalized by society. Examples:
Viewing sex offenders differently county by county
Different states having different ages at which a child can be treated as an adult for a crime

17. Definition of Crimes Crimes against the state: Crimes against persons:
Domestic & foreign terror.
Crimes against persons:
Murder & rape.
Crimes against property:
Stealing & trespass.
Crimes against public order and morals:
Aggressive panhandling & prostitution.

18. Principle of Legality Also known as the rule of law.
This principle purports that law controls the power of government.
It consists of four values that have existed from Aristotle in 350 B.C to the Magna Carta in 1215, they include:
Fairness
Liberty
Democracy
Equality

19. “No Crime Without Law: No Punishment Without Law”
This proposition means that a person can not be convicted of, or punished for a crime unless the law defined the crime and prescribed the punishment before he or she acted.
The case of Treva Hughes (Hughes v. State 1994) is an excellent example.

20. Legislative & Judicial Retroactive criminal Law making.
Legislative retroactive law making has a ban imposed on it. One reason for the ban is to allow the rule of law not the rule of officials.
Judicial retroactive criminal law making allows judges to exercise their judgment (discretionary decision making) in cases.
Limits to this law making includes:
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 lenity: implies that when judges apply a criminal statutes to a defendant, they must stick “clearly within the letter of the statute”.

21. Sources of Criminal Law
U.S. Constitution
State constitutions
Common law of England & U.S.
U.S. criminal code
State criminal codes
Municipal ordinances
Judicial decisions interpreting codes and the common law

22. Common-Law Origins
Criminal codes didn’t spring full-grown from state legislatures. They evolved from a long history of ancient offenses called common-law crimes.
These crimes were created before legislatures existed and when social order depended on obedience to unwritten rules: lex non scripta
State common law crimes
Following the American revolution, 13 original states adopted the common law, Florida was one of those states.
Federal common law crimes
U.S v. Hudson and Goodwin (1812)

23. Model Penal Code (MPC)
Focuses on the analysis of criminal liability meaning “who is responsible for what”.
After the adoption of MPC in 1962, more than forty states changed their criminal codes.
None of the state adopted the MPC completely, but it influenced all of them to an extent.

24. Administrative Agency Crimes
These are rules or laws written by administrative agencies, who have been granted authority from both federal and state legislatures to create laws.
They are a rapidly growing source of criminal law, but they often raise constitutional questions. One of such questions is
Can legislatures authorize administrative agencies to create regulations, when there is a criminal penalty for violating such regulation?

25. Reading case law… Facts of the case Action of the court
Intention of the court
Question - Legal issue(s) involved
Decision
Affirm
Reverse
Reversed and Remanded – Sent back to lower court
Opinion
Majority
Concurring
Plurality
Dissenting

26. Finding Cases
Example: (State v. Metzger [Chapter 2]), just after the title of the case, State v. Metzger, you read “319 N.W. 2d 459 (Neb. 1982).”
Here’s how to interpret this citation:
319 = First number is always the “Volume number” = 319
N.W.2d = Northwestern Reporter, Second Series
459 = page number, 459
(Neb. 1982) = Nebraska Supreme Court in the year 1982

28. Apply a “Slice of Reality”: Marital Rape
Until 1993, most states did not criminalize the rape of a spouse (i.e. it did not count as “rape”)…
Even after 1993, some states saw it relevant to provide “exceptions” (e.g. if the spouse is asleep or cannot physically provide consent)
Some debate still exists on whether “marital rape” should exists as a criminal law
Look up marital rape law(s) in your state and learn the history and possible current debate!

29. Key Terms Principle of legality Torts Felonies Misdemeanors
Malum in se
Malum prohibitum
General parts of criminal law
Special parts of criminal law
Retroactive criminal law making
Rule of lenity
Common law crimes
Model Penal Code (MPC)
Administrative crimes
Retribution
Prevention
Principle of legality