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

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

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

3 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 4  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. Limits to Law

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

6 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 7 Principles of Criminal Liability  A conduct that was committed Unjustifiably and inexcusably  Inflicts or threatens substantial harm To individual or public interests

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

11 11 Trends in Punishment  Historically, societies have justified punishment on the grounds of retribution, deterrence, and rehabilitation  Retribution dominated penal policy until 18 th century, when it was replaced with deterrence and incapacitation  Rehabilitation replaced deterrence in the late 20 th 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 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 13 Criminal Punishment (Continued)  Prevention  General deterrence  Special deterrence (Specific)  Incapacitation  Rehabilitation  Retribution  An “eye for an eye” captures the idea of retribution

14 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 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 16 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: 1)Viewing sex offenders differently county by county 2)Different states having different ages at which a child can be treated as an adult for a crime

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

18 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 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 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 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 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 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 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 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 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

27 27

28 28 Apply a “Slice of Reality”: Marital 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 Until 1993, most states did not criminalize the rape of a spouse (i.e. it did not count as “rape”)… Look up marital rape law(s) in your state and learn the history and possible current debate!

29 29 Key Terms  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

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