Criminalization & Punishment Flashcards
Week 1 Material Victims, Criminalization, Over-Criminalization, Constraints on Criminalization, Rationales for Punishment, Constraints on Type & Amount of Punishment
Define & Give Examples:
Secondary Victimization
Additional Emotional harm victims endure due to interactions with the criminal justice system
Examples: During investigation & trial process; from prosecution, defense attorneys and judges
Trauma Processing for Victims: 4 Steps
Victimization
- Initial Reaction (shock, anger)
- Disorganization (depression, substance abuse, relationship issues)
- Reconstruction (Therapy)
- Acceptance
Define:
Vulnerability & Resiliency Perspectives
Victimization
Future Trauma Reactions in Victims
* Vulnerability Perspective: someone exposed to trauma is more vulnerable in the future
* Resiliency Perspective: someone exposed & copes well will have resistance to future trauma
Sources of Criminalization
Constitution, Common Law, Statute
Definition of a Crime
- Prohibited social harm
- Caused by morally blame-worthy behavior
- result = def is morally condemned by the community
What distinguishes a Crime from a Tort?
Crime = moral condemnation by criminal justice system
Problems Caused by Over Criminalization
- leads to discrimination
- dilutes stigmas of crimes
–criminal law is only for conduct viewed as “deserving of severest condemnation”
Solutions to Over Criminalization
- Ask if justifies deprivation of liberty
- Restore penal code to harmful & violent behaviors
Define:
“Broken Window” Theory
- Reason people are engaging in big crimes is because of the disorder around them
- Crack down on small crimes = reduction of big crimes
Define & Rationale:
Legality Principle
- Definition: no crime without law, no punishment without law
- Rationale: no ex-post facto crime making; requires legislature to make crimes
Common Law Restraint on Criminalization
Define & Rationale:
Rule of Specificity
- Definition: Criminal laws should provide SPECIFIC guidance
- Example: Marquan Case = cyberbullying provision criminalized broad spectrum of behavior outside popular understanding
Common Law Restraint on Criminalization
Define & Rationale:
Lenity Rule
- Definition: Unresolvable, ambiguous statutes are interpreted in DEFENDANT’S favor
- Rationale: State should not benefit from poor drafting
Common Law Restraint on Criminalization
Define:
Rule of Fair Import
- Definition: Encourages interpreting a statute to further the general purposes of that statute
Common Law Restraint on Criminalization
Define:
Bill of Attainder
Article 1, Sec 9
Cannot adopt a statute specifically targeting a PERSON or GROUP without trial
Constitutional Restraints on Criminal Law
Define:
Ex Post Facto
Article 1, Sec 10
Def cannot be punished for a crime that was not on the books at the time
Constitutional Restraints on Criminal Law
Define:
Due Process
5th &14th Amendments
* Right to life, liberty, property
* Gov’t may NOT infringe upon certain fundamental rights without compelling reason
Constitutional Restraints on Criminal Law
Define:
Equal Protection
5th & 14th Amendments
* Cannot discriminate based on CLASS or RACE
* Ex: Loving v. VA (interracial marriage)
Constitutional Restraints on Criminal Law
Define:
Cruel and Unusual Punishment
8th Amendment
Punishment Cannot:
* Be offensive to human dignity or target individuals or groups for who they are (example: addicts)
- Be Excessive
—unrelated to purposes of punishment
—grossly disproportionate to the crime
Constitutional Restraints on Criminal Law
YES or NO
Is it permissible for the gov’t to criminalize free speech?
YES
verbal threats, incitement
Define:
Felony
Classification of Crimes
More than one year in prison
Define:
Misdemeanor
Classification of Crimes
Less than one year in prison
Define & Example
Malum in Se
“Wrongful in itself”
Example: Murder
Defendant breached a social norm
Requires proof of def’s mental state
Define & Example
Malum prohibitum
Wrongful based on legislative/administrative decisions
Ex: Environmental Violations
Strict liability offense = does NOT require mental state
List the Five Rationales for Punishment
- Retribution
- Rehabilitation
- Incapacitation
- Specific Deterrence
- General Deterrence
Define & Criticize
Retribution
Rationales for Punishment
- What do you deserve?
- Backwards-looking (focused solely on what the individual did)
- Critics = too much like vengeance
Define & Criticize
Rehabilitation
Rationales for Punishment
- Forwards Looking
- Behavior Correction
- Individualistic to each offender
- Critics = too much discretion given to judges
- Prof’s Take = not effective due to underfunding
Think Quakers = penitentiaries = penance = atone for sins with God
Define & Criticize
Incapacitation
Rationales for Punishment
- Forwards Looking
- Purpose = prevent defendant from committing more crimes
- Critics & Prof’s View = requires a prediction of behavior; not very good at doing
Define & Criticize
Specific Deterrence
Rationales for Punishment
- Forward Looking
- Purpose= teach this specific def a lesson so they do not reoffend
Define & Criticize
General Deterrence
Rationales for Punishment
- Forward Looking
- Purpose = deter OTHERs from engaging in behavior
- Critics= allows for punishment of innocents (punishing innocents will deter guilty)
Define
Brutalization Effect
- Counterintuitively, by imposing punishment on society, we are actually validating it
- Ex: parents who hit children = teaches children hitting is ok
Punishment
Define
Legality Principle
- Legislature makes the laws & establishes ranges for punishments
- Judiciary interprets laws & determines specific punishments
- also makes sure laws do not conflict with Constitution
Define
Standards of Decency &
Factors in Interpreting
Step 1. History
Step 2. What society currently thinks
(legislature, juries, public opinion)
Step 3. Court’s independent judgment
Factors: proportionality of offense to crime, similar cases in same jurisdiction & other jurisdictions
interpreting the 8th Amendment
List
What are the five situations where a failiure to act (omission) is deemed to be the equivalent of affirmative action?
Common Law:
1. Special Relationship
2. Creation of the Harm
3. Voluntary assumption of the care that prevents others from aid
- Contractual Duty
- Statutory Duty
Async Question: T/F
All involuntary acts are non-volititional
FALSE because acts under duress are involuntary (gun to the head) but are still volitional
Need to raise the duress defense
Async Question: T/F
While epileptic seizures are generally not volitional, sometimes they could be deemed volitional
True: in cases where someone should have taken their seizure medication but did not
Async Question: T/F
While sleepwalking is generally not volitional, hypnotic behavior generally is volitional
False: convulsions, sleepwalking, and hypnotic behaviors are non-volitional
Async Question: T/F
Habitual Behavior is volitional
True
Asynch Question: T/F
Acts include affirmative conduct and wrongful thoughts.
False: Wrongful thoughts are not part of actus reus
Async Question
Three issues that are the subject of inquiry with respect to the def’s mental functioning at the time of the crime
Actus Reus, Mens Rea, Affirmative Defenses
Async Question: T/F
Under the Common Law, there is a duty to act to help one’s spouse. There is a similar duty to act towards one’s children.
True: special status relationship
Async Questions: T/F
Under the Common Law, there is a duty to act as a Good Samaritan and help any person who needs assistance.
False: no legal obligation under the Common Law
Async Questions: T/F
Under the Common Law, there is a duty to act if one voluntarily assumes care in such a manner that others are prevented from rendering aid.
True
Asynch Questions: T/F
Private contracts cannot be used to create a duty to act for criminal law purposes.
FALSE: Contractual obligations can give rise to a duty to act, such as for babysitters.
Asynch Questions: T/F
One may have a statutory duty to act, such as when someone is certified by the state as an Emergency Medical Technician (EMT).
True
Asynch Questions: T/F
Possessing an item is the equivalent of committing affirmative conduct if the defendant knowingly procured or received the item.
True
Asynch Questions: T/F
Possessing an item is the equivalent of committing affirmative conduct if the defendant retained possession of an item after being aware of control over it for any amount of time.
FALSE:
Possessing an item is the equivalent of committing affirmative conduct if the defendant retained possession of an item after being aware of control over it for such a sufficient period of time to have ended control over it.
Asynch Questions: T/F
It is sufficient for purposes of imposing criminal liability if it is determined that the defendant’s conduct was the actual cause (i.e. cause-in-fact) of the social harm.
False: Need BOTH actual cause AND proximate cause
Asynch Questions: T/F
When more than one actor’s conduct contributes to the prohibited social harm, the Common Law determines the liability of the defendant whose actions set forth the events based on whether the “intervening” cause was a “superseding” one.
True
Asynch Questions: T/F
A defendant can be the proximate cause for a crime without being the actual cause of the crime.
FALSE: need to be both the actual and proximate cause
Asynch Questions: T/F
An “intervening cause” is an independent force — another “but-for” cause — that operates in producing social harm, but which only comes into play after the defendant’s voluntary act has been committed or his omission has occurred.
True
Asynch Questions: T/F
When an intervening cause relieves the defendant of criminal responsibility, the law generally describes that intervening event as the “superseding cause” of the social harm.
True
Define the De Minimis Contribution to the Harm Factor
Actus Reus, Proximate Cause: Factors that determine whether intervening becomes superceding
De minimis Limitation is where the intervening cause played too minor a role to rise to superceding.
Define the Reasonable Foreseeability Contribution to the Harm Factor
Actus Reus, Proximate Cause: Factors that determine whether intervening becomes superceding
responsive intervening cause: occurs in
response to def’s wrongful conduct; generally
will not relieve initial wrongdoer
coincidental intervening cause:
generally will relieve def of
wrongdoing unless it was foreseen
Define the “Def’s Mens Rea” Contribution to the Harm Factor
Actus Reus, Proximate Cause: Factors that determine whether intervening becomes superceding
We look at Def’s Mens Rea
“intended consequences can
never be too remote”
Define “Dangerous Forces Come to Rest” Contribution to the Social Harm
Actus Reus, Proximate Cause: Factors that determine whether intervening becomes superceding
Court follows the defendants violence until it ends
Define the “Free, Deliberate Human Intervention” Contribution to the Harm Factor
Actus Reus, Proximate Cause: Factors that determine whether intervening becomes superceding
When intervening individual acts freely, def
will be more likely to be released
of criminal liability
Define the “Omission” Contribution to the Harm Factor
Actus Reus, Proximate Cause: Factors that determine whether intervening becomes superceding
Omission of a duty will rarely supersede an
earlier, operative wrongful act
Of the five rationales for punishment, which is backwards looking?
Retribution (focused solely on what the defendant did)
Rehabilitation, incapacitation, specific & general deterrence all are forwards looking
Of the Five Rationales for Punishment, which one seems to alllow for the punishment of innocent behavior?
General Deterrence (purpose is to deter others from doing the behavior)
Example: if goal is to encourage good driving, punishing epileptics who drive will accomplish this
What test does Supreme Court Adopt in Solem v. Helm to evaluate 8th Amendment proportionality of punishment in non-death penalty cases?
Gravity of the offense/harshness of the penalty
Sentences imposed in the same jurisdiction
Sentences imposed in other jurisdictions
What factors does SC identify in Harmelin v. Michigan to guide court’s application of the 8th Amendment in non-death penalty cases?
- Primacy of the Legislature
- Variety of legitimate penological schemes
- Nature of the federal System
- Objective factors guiding proportionality review
- “Grossly disporportionate” sentences
