January 14, 2013Criminal Law

Review Session: Every Wednesday 7:15 on for review

Modern Penal Code: meant to suggest a uniform way of categorizing crimes and attaching punishments to the crimes. Most states have adopted the penal law entirely, NEW YORK HAS ADOPTED IT ENTIRELY.

Class No. 1: What is substantive criminal law? What is a crime?

Crime: The requirement that there always be a harm to be a crime is not true. There are attempted crimes if they fail. Yet it is still a serious crime. Generally causes harm, but not always: I.e. victimless harms, or attempted harm. Victimless crimes: Corruption (Prostitution?), gambling, banking, consensual harms.

Carelessness:When you aware of a conscious risk of harm then that satisfies intent.Indifference:When you are unaware of risk of harm: criminal negligence

Three different degrees of mental states: (Mens rea- culpable state of a guilty mind)1) Intentional2) Recklessness3) negligence

Some crimes are strict liability crime: to be a strict liability crime, does not mean no required mental state, but one element that does NOT require mental state.

Almost all crimes are crimes of mental culpability. Culpable mental state (almost always but not always)Harm qualified by victimlessVoluntary act/omission to perform an act which one is capable of performing such act. (Some choice)Previous definition of crimeCausal connection: no definition of causation. Mental state causes the act, and then the act causes the harm *double causal relationship and connection. Punishment: to be a criminal has to be connected to a punishment. The US Supreme Court tells us that Criminal law distinctively is connected to punishment in a way that nothing else is. *Absence (negative element) of justification (defenses)[Choice, act, harm, causal connection, connection to punishment, absence of justification*]*Insanity absence of excuse, severe mental retardation, self-defense, duress, entrapment, infancy, etc.Crimes are misdemeanors and felonies and crimes are defined by the length of punishment you can receive.Punishment: Felonies get an indeterminate term : ABCDE felonies (1/3rd of the term) Life, 25, 15, 7, and 4.

A Felony: Max is LIFE in prisonB: Max is 25 in prisonC: 5-15 years in prisonD: 2 1/3rd to 7 yearsE: 1 1/3rd to 4 years

What is law? What is criminal law? And What is substantive criminal law as opposed to criminal procedure.

a.Robbery: Forcible stealing. The use or threatened use of physical force.

What makes something a crime: the law against it: no punishment without a previous crime. We cannot punish behavior when it was done legal, but later become illegal. No such thing as retroactive legislation. Has to be previously defined as a crime.

January 16, 2013

What is substantive criminal law?

What is law? Study of a rule book

What is criminal law? 1)Holmes :says: a prediction of what the courts will do from the bad man (when he asks, whats going to happen to me when I commit this crime?) A good lawyer will be able to present a probability distribution of what may happen to the client based upon his/her experience with judges, system, etc. Holmes notion of the prediction of what the courts may do has little reality to do with present day.

We need to go way beyond what the courts will do, and focus on what the cops will do, the prosecutor will do, defense, corrections, jury, and to some degree of what the courts will do.

Holmesian view needs to be extended to other factors/actors, within the judicial system.

Courts may look at their possible decision and ask themselves what will History decide? What future supreme courts will do?

Types of law:

1) Analysis of rules2) Prediction of power3) Discovery of fundamental rights and distinctions that are not necessarily rules (are the rules themselves just) Rights precede rules Natural law: certain rules and certain acts are illegitimate although inactive, they are not lawful, because they are not consistent with something more primary. (Example: does a state legislature have a right to say we dont want to distinguish between those who kill in the heat of passion vs. those who kill cold bloodedly?)

What is criminal law?

And What is substantive criminal law? Substantive criminal law vs. criminal procedure: (Ex. Game vs. Sport) (SUBSTANTIVE CRIMINAL LAW) Game: choice of move automatically translates into the execution of the move. (CRIMINAL LAW) Sport: performance component, critical, because its not in the game. Move chosen is never executed exactly how they are chosen because reality comes into play. Game of criminal law, is substantive crim law, that presupposes that the choice of criminal law is translated into that punishment. It is a continuum of the definition of the crime, the detection of the crime, and often times are not necessarily detected that way, once detected, after detection comes prosecution, and then plea bargain, possible no prosecution, conviction, sentencing, and then punishment. Reasons why definition does not translate into punishment, (human error). Sport of criminal law is criminal process. The Game of criminal law is substantive criminal law. Take analytical point of view, reality of crim law (as rule book), assume the move thats chosen by legislature is going to be the move that is made. [Law with the purpose of prevention of harm to society which prescribed punishment for specific offenses. The basic law of rights and...]

Kansas v. Hendricks: only if its punishment, would it be crime, and if its crime, would it run afoul of expost facto double jep clause. Neither deterrent nor retribution is meant to be served by legislative statute, and therefore not criminal.

5 Justifications of Punishment:Incapacitation: **Safety Purpose. We punish to render the criminal harmless during the time he she incapacitated. [Safety] Problems: Civil purpose vs. criminalAsking officers, punishment is no part, and goal is safety. Non criminal, civil function. Primary Mission. *Deterrence: General and Specific *Achieved special status. Specific: Focuses on the person who has already been punished. The theory there is that the memory, experience of the punishment will alter the cost benefit analysis of that person, and that will prevent the person from doing the crime. Failure: with this is prison becomes a refuge for others. General: When youre trying to prevent others from not committing a crime. Instilling a fear, by making an example by punishing x, y sees this and does not act. Presupposes people seek pleasure, and avoid pain, presupposes people discount pain by how swift, how severe, how certain it is (Jeremy Bentham). Standard deterrence theory. In order to view regarding cost benefit analysis: punishment has to be made so severe enough that I will discount the pain by its certainty, severity, and swiftness. Calculate pain that will occur later with a certain certainty, severity, and swiftness.

*Retribution: Focuses on the past, what bad has been done? Looks at the crime to establish a punishment. Looks at the Denunciation: In theory, stems from Durkheim: Identified as a separate purpose of punishment. Creates social solidarity, comes the occasion in which we all gather together and distinguish ourselves from criminals. Serves a correlative function; allow hardworking poor in our society to feel inferior to others. So they wont feel like theyre the last person in line. Provides a social glue, and that all classes have something in common: law abiding vs. Criminals. Labels criminals as criminals. Rehabilitation: Create a law abiding productive, citizen upon release. We do that through skills, and values. To come to understand this is all wrong. PROBLEMS: Very rare, wasnt working, committing more crimes and was expensive. Ceased to be a major justification of punishment. Plays a lesser role.

[We would be wrong to achieve a zero crime ratecertain level of crime very healthy for society, to have criminals we still feel superior even at the bottom rung of social latter].

Issue: Can Kansas confine Hendricks because he is dangerous?Background: State is enacting a new act after Hendricks fulfilled his sentence. Hendricks admits you stress me out, I will go for children. Kansas barely tried to treat Hendricks while he was fulfilling his sentence. Hendricks: alleges that he is being convicted again. Kansas says that he is a dangerous guy. Says they can confine you, but we are not going to punish you. But we cannot punish you twice because it would be unconstitutional due to double jeopardy and ex post facto. Double Jeopardy: Dual Sovereignty Doctrine: a state and federal government can prosecute you under one act provided you committed two different crimes under the same act.US Constitution only prohibits only in criminal law. But it if its punishment its criminal, it if its confinement then its civil. Retribution is concerned with past. Principal classical strain of retributivist focuses on the intent, the evil will of the actor. The harm is irrelevant the culpable state of mind to act with an intent to harm. First part is the culpable mental state, and the seriousness of the act that were wanted to be committed, and the second part is the harm.

Court says, if it were retributive it would have to be in response to the crime. It is not in response to the crime. Kansas is confining Hendricks not because he committed the crime, but they are using the crime as a source of prediction for the future. And retribution is not about the future its about the past. Furthermore, more things that do not indicate it is not retributive. The sentence is also open ended, the moment he is not seemingly dangerous anymore, his sentence is fulfilled. Here the courts are analyzing based upon the future NOT THE PAST. RETRIBUTION IS ABOUT THE PAST!!!

Rehabilitation: Through the acquisition of skills and values in order to prepare the criminal for society.

*Not emphasizing punishment*looking for a proportional response to what has happened, looking for a treatment for what may happen*looking at the future, not the past.

Not just confined to convicts, also means that you did not commit a similar crime you just have to be dangerous.

Also not generally a deterrent. Because of his mental incapacity, and he cannot control himself, in no way can he deter himself.

Deterrence: Specific: Focuses on the person who has already been punished. The theory there is that the memory, experience of the punishment will alter the cost benefit analysis of that person, and that will prevent the person from doing the crime. Failure: with this is prison becomes a refuge for others. General: When youre trying to prevent others from not committing a crime. Instilling a fear, by making an example by punishing x, y sees this and does not act. Presupposes people seek pleasure, and avoid pain, presupposes people discount pain by how swift, how severe, how certain it is (Jeremy Bentham). Standard deterrence theory. In order to view regarding cost benefit analysis: punishment has to be made so severe enough that I will discount the pain by its certainty, severity, and swiftness. Calculate pain that will occur later with a certain certainty, severity, and swiftness.

*Kansas is not deterring Hendricks because Hendricks said he would commit again.

Kansas argues incapacitation to be a civil commitment however, incapacitation is a principle justification of punishment

Other principle justifications of punishment** Kansas v. Crane

Retribution: Focuses on the past: ask what bad has been done? What does it take to serve justice??? What does criminal deserve proportionate to their crime?

Proportionality from a retributive point of view consists in the culpable mental state of mind. The more heinous the crime, the greater the retribution.

NY Penal law does pay attention to the harm. Murder is an A felony. Attempted murder is a B felony.

Justifications for punishment:1) Retribution: 2) Deterrence (Specific/Generalsee above)3) rehabilitation Through the acquisition of skills and values in order to prepare the criminal for society. 4) Incapacitation: punish to render the criminal harmless (Supreme Court identifies this as a civil purpose). 5) denunciation: theory provides a social glue a social cement and that all classes have something in common in that we are law abiding. It is a labeling of a criminal in a community creates solidarity within the community.

Theory of incapacitation: punish to render the criminal harmless (Supreme Court identifies this as a civil purpose)

January 23, 2013:

People v. Onofre: Facts:Onofre was charged with consensual sodomy in violation of 130.38.Appellate division struck down new yorks consensual sodomy statute that it violated the Due process clause of the 14th Amendment of US constitution and the 6th amendment of the NYS constitution. New York Court of Appeals affirmed, and narrowed the question on whether NYS Court of appeals struck down the state statute on the grounds that it violates the federal constitutionSignificance of what the court of appeals did: State constitutions can restrict the power of government in ways that the United States constitution cannot. Court of Appeals has the last say in the State. U.S. Supreme Court has no power to say to Court of Appeals incorrectly decided the case. State const. has higher floor, can further restrict state power, in way US states constitution cannot. So that it is OK that US const. to permit state to have state const. prohibiting state citizen from doing. If state permitted to do something that the US const. prohibited, there the US const. TRUMPS state const. A state high court has right to strike down state statute on grounds of unconstitutionality. Rest of federal courts system is creature of congress. Cannot abolish us supreme court.Notion of Supremacy Clause: shall yield. To ensure Const. Supremacy, is to have a judicial system that can strike down contrary statutes that violate constitution. But is state courts final authority? Who is?*Bowers asked same question: can state Georgia punish consensual sodomy, or is that violative of const.? State of Georgia can punish. Bowers v. Hardwick overruled Onofre. US. Const. prohibited a state criminalizing sodomy. US Supreme Court held that US Const. permitted criminalizing. And overruling Onofre. Appellate Division struck down the statute as violating: the constitution of both State and U.S. Constitution

Court of Appeals: Affirmed Appellate division in part that it violated the United States Constitution, making no mention of the state constitution. Had they affirmed it in NY State constitution, it would end there. The state can further restrict power within the state. What it cant do is take away the protections that the US constitution provides.

Had the NY Court of Appeals affirmed A.Ds decision re: unconstitutionality in the state, it would have ended there.

Bowers v. Hardwick (overrules Onofre)Facts:Charged with sodomy violating Ga. Code s 16-6-2 (1984)Punishment: