1. Chapter 1 The Nature and Limits of Criminal Law Joel Samaha, 9th Ed.

2. Conduct that Unjustifiably Inflicts Harm
Crime
Noncriminal wrong
Regulation
License
Lawful

3. Conduct that Unjustifiably Inflicts Harm
Crime
The degree of severity should reflect the amount of stigma that a criminal should suffer and the severity of punishment a person deserves

4. Conduct that Unjustifiably Inflicts Harm
Non-criminal wrongs (torts)
“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. Neither encourages nor discourages the behavior.

5. Conduct that Unjustifiably Inflicts Harm
Lawful
There are no legal consequences for the act but it can still be deemed deviant behavior by peers and the community.
Regulation
Government places this burden on behaviors to discourage them, i.e., alcohol tax creates a higher user price, but drinking is not a criminal act.

6. Principles of Criminal Liability
“conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interest,” Model Penal Code, 1985.
A conduct that was committed
Unjustifiably and inexcusably
Inflicts or threatens substantial harm
To individual or public interests

7. Criminal Law versus Civil Law
Public Wrongs
Prosecuted by the State
Proof beyond a reasonable doubt
Right to counsel
Defendant has right to silence
Penalties or sanctions are based on seriousness of the offense, i.e., misdemeanors and felonies
Civil Law (torts)
Private Matters
Private parties file suit
Preponderance of the evidence
Must hire own attorney
Defendant may be forced to testify
Penalties based on compensation or remedies

8. Question
What is the most important difference between torts and crimes?
Explain how this relates to punishment.

9. Criminal Punishment “Every criminal law has to define the crime
and prescribe a 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
Limitation: 8th amendment

10. Criminal Punishment (Continued)
Prevention (forward looking)
General deterrence
Special deterrence (specific)
Inapacitation
Rehabilitation
Retribution (backward looking)
An “eye for an eye” captures the idea of retribution

11. Trends in Punishment
Historically, societies have justified punishment on the grounds of retribution, deterrence, and rehabilitation.
Retribution dominated penal policy until the 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 the early 1960s.
By the mid-1980’s retribution and incapacitation were the primary forms of criminal punishment.

12. General and 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 and seriousness

13. 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.

14. Societal Controversy…
Grading Crimes
Malum in se
Inherently evil conduct that has injurious consequences, e.g., murder, rape, robbery
Malum prohibitum
Conduct prohibited by law because they are not evil in nature, e.g., dui, tax evasion, speeding, carrying a concealed weapon
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

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

16. 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 has existed from Aristotle in 350 B.C to the Magna Carta in 1215, they include:
Fairness
Liberty
Democracy
Equality

17. No Punishment Without Law” l Explain this proposition.
“No Crime Without Law:
No Punishment Without Law” l
Explain this proposition.
The case of Treva Hughes
(Hughes v. State, 1994)
is an excellent example.

18. Legislative and 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 law making include:
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.”

19. 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

20. 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, the 13 original states adopted the common law.
Federal common law crimes
U.S v. Hudson and Goodwin (1812): There are no federal common law crimes, however, there are exceptions, e.g., the Sherman Act, civil rights legislation, and mail fraud statutes.

21. 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 cannot define crimes and punishments that apply differently based on inherited characteristics (race, ethnicity, gender, and age).
Individual rights and liberties
Legislatures cannot make crimes that violate the rights to free speech, religion, and privacy.

22. 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 states adopted the MPC completely, but it influenced all of them to an extent, in essence, the MPC is the common denominator in U.S. criminal law.

23. 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. Two such questions are:
Can legislatures authorize administrative agencies to create regulations, when there is a criminal penalty for violating such regulation?
Can legislatures allow agencies to set up their own courts to decide cases involving violations of the regulations they have created?

24. Criminal Law in the Federal System
There are 52 criminal codes: one for each of the fifty states, one for the District of Columbia, and the U.S. Criminal Code.
Definitions, defenses, and punishment of crimes vary across state lines.

25. Reading Case Law Facts of the case Action of the court
Intention of the court
Question - Legal issue(s) involved
Decision
Affirm
Reverse
Reverse and remand – sent back to lower court
Opinion
Majority
Concurring
Plurality
Dissenting

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”
N.W.2d = Northwestern Reporter, Second Series
459 = page number
(Neb. 1982) = Nebraska Supreme Court in the year 1982