1. Criminal Law and Criminal Punishment: An Overview
Chapter One
Criminal Law and Criminal Punishment: An Overview

2. 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.

3. 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.

4. 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

5. 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”

6. 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

7. 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)

8. 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

9. 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”
Forcible Rape
Robbery
“Apologetic” sentencing judge
“Forgotten” victim

10. 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

11. 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)

12. 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.

13. 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”
The first is Complicity, and it deals with Accomplices and Accessories
The second type of complicity deals with other related crimes including Attempt, Conspiracy and Solicitation, also called the “Inchoate” Offenses

14. 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:
Justification – Self-Defense
Excuse - Insanity

15. Classification of the Criminal Law 2 Divisions of Criminal Law
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

16. 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

17. 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

18. 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

19. 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

20. State Criminal Codes Codification
Model Penal Code – 3 Elements of Criminal Liability
Is the conduct a crime?
Inflict or Threaten
Inflict or Threaten Individual or Public Interests
If the conduct is a crime, is it wrong?
Justified (Self-Defense)
If the conduct was unjustified, should we blame the actor?
Excused (Insanity)

21. 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)

22. Municipal Ordinances
Local governments have broad but not unlimited power (continued)
Municipalities can not create felonies
No punishments may exceed 1 year in jail

23. Administrative Law Agency made law (Rules and Regulations) Examples:
IRS Tax Code
State Highway Patrol Vehicle Safety Inspection Regulations

24. 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)

25. Criminal Law Varies Among Jurisdictions
Criminal codes differ
Definitions of criminal behavior differ
Defenses to criminal behavior differ
Punishments differ

26. 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)

27. Appropriate Punishment for Criminal Behavior
Definition: inflicting pain or other unpleasant consequence on another person…parents, clubs, churches, friends and schools all apply punishments…

28. 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

29. 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?

30. 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

31. 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.

32. 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

33. 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

34. 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

35. Prevention
Punishment looks forward and inflicts pain to prevent future crimes
Four types of prevention
General Deterrence
Special Deterrence
Incapacitation
Rehabilitation

36. 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

37. Deterrence Theory Principle of Utility
Least amount of pain needed to deter the crime should be permitted

38. 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

39. 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

40. 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

41. 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

42. 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

43. 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

44. 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

45. 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

46. 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

47. 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)

48. 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

49. 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)

50. 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

51. 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)

52. 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

53. 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

54. Components of Appellate Decision
Title
Procedural History
Judge
Facts
Judgment/Decision
Opinion
Majority opinion
Dissenting opinion
Concurring opinion
Plurality opinion

55. 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

56. 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)

57. Finding Cases 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