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Dr. Patrick Bamwine

Chapter One:

The Nature and Limits of Criminal Law

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Some Important Concepts…

Democracy Constitutions Principles of criminal liability Defenses to crime Principle of limited methods

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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.

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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

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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

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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

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Principles of Criminal Liability

A conduct that was committed

Unjustifiably and inexcusably

Inflicts or threatens substantial harm

To individual or public interests

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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

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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

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Limits on Punishments

The constitutional ban on cruel and unusual punishments

8th Amendment The principle of limited methods

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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.

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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

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Criminal Punishment (Continued)

Prevention General deterrence Special deterrence (Specific) Incapacitation Rehabilitation

Retribution An “eye for an eye” captures the idea of

retribution

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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

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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.

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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

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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.

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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

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“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.

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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”.

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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

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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)

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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.

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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?

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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

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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

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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!

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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