Contemporary Criminal Law, 2nd Edition docx

The Nature, Purpose, and Function of Criminal Law 1 Introduction 2 The Nature of Criminal Law 2 Criminal and Civil Law 2 The Purpose of Criminal Law 3 The Principles of Criminal Law 4 C

Criminal Procedure by Matthew Lippman

Criminal Courts by Craig Hemmens, David Brody, Cassia Spohn

How Do Judges Decide? 2nd Edition by Cassia Spohn

Courts: A Text/Reader by Cassia Spohn, Craig Hemmens

Corrections: A Text/Reader by Mary Stohr, Anthony Walsh, Craig Hemmens

Community Corrections by Robert Hanser

Administration and Management in Criminal Justice by Jennifer Allen, Rajeev Sawhney

Juvenile Justice: A Text/Reader by Richard Lawrence, Craig Hemmens

Juvenile Justice, 6th Edition by Steven Cox, Jennifer Allen, Robert Hanser, John Conrad

Preventing and Reducing Juvenile Delinquency by Buddy Howell

Introduction to Criminology, 7th Edition by Frank Hagan

Introduction to Criminology: A Text/Reader by Anthony Walsh, Craig Hemmens

Criminological Theory: A Text/Reader by Stephen Tibbetts, Craig Hemmens

Criminals in the Making by John Wright, Stephen Tibbetts, Leah Daigle

Criminological Theory, 4th Edition by Robert Lilly, Frank Cullen, Richard Ball

Crime Types and Criminals by Frank Hagan

Profiling Violent Crimes, 4th Edition by Ronald Holmes, Stephen Holmes

Criminal Justice Ethics, 2nd Edition by Cynthia Banks

Forensic Psychology by Curt Bartol, Anne Bartol

The Practice of Research in Criminology and Criminal Justice, 3rd Edition by Ronet Bachman, Russell Schutt Fundamentals of Research in Criminology and Criminal Justice by Ronet Bachman, Russell Schutt

Adventures in Criminal Justice Research, 4th Edition by Kim Loggio, George Dowdall

Understanding Terrorism, 3rd Edition by Gus Martin

Essentials of Terrorism by Gus Martin

Terrorism in Perspective, 2nd Edition by Susan Mahan, Pamela Griset

Drugs and Drug Policy by Clay Mosher, Scott Akins

Race and Crime, 2nd Edition by Shaun Gabbidon, Helen Greene

Crime Analysis With Crime Mapping, 2nd Edition by Rachel Boba

Critical Issues in Criminal Justice by Mary Maguire, Daniel Okada

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Library of Congress Cataloging-in-Publication Data

Lippman, Matthew Ross,

1948-Contemporary criminal law: Concepts, cases, and controversies/Matthew Lippman.—2nd ed

Acquiring Editor: Jerry Westby

Assistant Editor: Leah Mori

Editorial Assistant: Eve Oettinger

Production Editor: Sarah K Quesenberry

Copy Editors: Cate Huisman, Ellen Howard, Chase Exon

Proofreader: Jenifer Kooiman

Typesetter: C&M Digitals (P) Ltd

Cover Designer: Janet Kiesel

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Preface xi

10 Criminal Sexual Conduct, Assault and Battery, Kidnapping,

Preface xi

The Case Method xi

Chapter Organization xii

Organization of the Text xii

Second Edition xiii

Acknowledgments xiv

1 The Nature, Purpose, and Function

of Criminal Law 1

Introduction 2

The Nature of Criminal Law 2

Criminal and Civil Law 2

The Purpose of Criminal Law 3

The Principles of Criminal Law 4

Categories of Crime 4

Felonies and Misdemeanors 4

Mala In Se and Mala Prohibita 5

Subject Matter 5

Sources of Criminal Law 6

The Common Law 6

State Criminal Codes 7

State Police Power 7

The Model Penal Code 8

Bills of Attainder and Ex Post Facto Laws 23 Bills of Attainder 23

Ex Post Facto Laws 23 The Supreme Court and

Ex Post Facto Laws 23

Statutory Clarity 24

Clarity 24 Definite Standards for Law Enforcement 24 Void for Vagueness 25

State v Stanko 26

Equal Protection 29

Three Levels of Analysis 29

Wright v South Carolina 30

Freedom of Speech 33

Overbreadth 35 Hate Speech 35

george t v California 37

Privacy 43

The Constitutional Right to Privacy 43 The Constitutional Right to Privacy and Same-Sex Relations Between Consenting Adults in the Home 45

laWrenCe v texaS 45

Chapter Summary 50Chapter Review Questions 50Legal Terminology 51Criminal Law on the Web 51Bibliography 51

3 Punishment and Sentencing 52

Introduction 53Punishment 54Purposes of Punishment 55

Retribution 55 Deterrence 56 Rehabilitation 56 Incapacitation 56 Restoration 56

Sentencing 57Evaluating Sentencing Schemes 57Approaches to Sentencing 58Sentencing Guidelines 58

Criminal Punishment and Status Offenses 78

Cruel and Unusual Punishment:

The Duty to Intervene 96

JoneS v united StateS 99

The Evidentiary Burden 114

The Model Penal Code Standard 115

BankS v CommonWealth 136

people v kern 139

Chapter Summary 143Chapter Review Questions 144Legal Terminology 145Criminal Law on the Web 145Bibliography 145

6 Parties to Crime and Vicarious Liability 146

Introduction 147Parties to a Crime 147

Actus Reus of Accomplice Liability 149

State v ulvinen 150

Mens Rea of Accomplice Liability 153

united StateS v fountain 155

State v linSCott 157

Accessory After the Fact 160

The Common Law 160 The Elements of Accessory After the Fact 160

State v ChiSm 162

Vicarious Liability 166

Corporate Liability 166 Public Policy 167

7 Attempt, Conspiracy, and Solicitation 178

Introduction 179Attempt 179

History of Attempt 180 Public Policy and Attempt 180 The Elements of Criminal Attempt 180 Mens Rea of Attempt 181

SmallWood v State 182

Actus Reus of Attempt 184 Three Legal Tests 185 The Physical Proximity and Substantial Step Tests 186

Bolton v State 187

Impossibility 189

Execution of Public Duties 242

The Modern Legal Standard 243

The Insanity Defense 271

The Durham Product Test 280 The Substantial Capacity Test 281

State v thompSon 282

Burden of Proof 285 The Future of the Insanity Defense 285

moler v State 286

Diminished Capacity 289Intoxication 291

Voluntary Intoxication 291 Involuntary Intoxication 292

united StateS v Contento-paChon 305

Mistake of Law and Mistake of Fact 307

Mistake of Law 308 Mistake of Fact 308

Entrapment 310

The Law of Entrapment 310 The Subjective Test 311 The Objective Test 311 Due Process 312 The Entrapment Defense 313

10 Criminal Sexual Conduct, Assault and Battery, Kidnapping, and False

Imprisonment 324

Introduction 325The Common Law of Rape 325

The Elements of the Common Law of Rape 326

Rape Reform 327 The Impact of Rape Reform 329 Punishment and Sexual Assault 330 The Actus Reus of Modern Rape 330

Rape Shield Laws 345

Assault and Battery 347

The Elements of Battery 347

Simple and Aggravated Battery 347

Types of Criminal Homicide 369

Actus Reus and Criminal Homicide 371

The Beginning of Human Life 371

people v daviS 372

The End of Human Life 377

Mens Rea and Criminal Homicide 377

Breaking 420 Entry 421 Dwelling House 421 Dwelling of Another 421 Nighttime 422

Intent 422 Aggravated Burglary 422

Do We Need the Crime of Burglary? 423

WilliamS v State 437

people v fox 439

Criminal Mischief 440Actus Reus 440Mens Rea 441

people v WallaCe 442

Chapter Summary 444Chapter Review Questions 444Legal Terminology 445Criminal Law on the Web 445Bibliography 445

13 Crimes Against Property 446

Introduction 447Larceny 447

Actus Reus: Trespassory Taking 448 Asportation 448

State v henry 459

Theft 462Identity Theft 463

City of liBeral, kanSaS v vargaS 465

Computer Crime 467

State v SChWartz 468

Receiving Stolen Property 471Actus Reus 471

Forgery and Uttering 477

people v thoro produCtS

Company & neWman 498

Occupational Health and Safety 502

Securities Fraud 503

Insider Trading 503

united StateS v Carpenter 504

Mail and Wire Fraud 507

united StateS v nguyen 507

united StateS v duff 510

The Travel Act 511

Health Care Fraud 512

15 Crimes Against Public

Order and Morality 523

Public Indecencies: Quality-of-Life Crimes 532

Vagrancy and Loitering 533

Homelessness 534

The Overreach of Criminal Law 547

Prostitution and Solicitation 548 The Crime of Prostitution 548 Legal Regulation of Prostitution 549

16 Crimes Against the State 564

Introduction 565Treason 565

Criminal Act and Criminal Intent 566 Prosecuting Treason 566

iva ikuko toguri d’aquino v united StateS 567

Sedition 570

yateS v united StateS 571

Sabotage 573Espionage 574Terrorism 576

Definition of Terrorism 576 Terrorism Outside the United States 577 Terrorism Transcending National Boundaries 577

Weapons of Mass Destruction 577 Mass Transportation Systems 578 Harboring or Concealing Terrorists 578 Material Support for Terrorism 578

united StateS v Shah 579

united StateS v khan 583

Combat Immunity 587

united StateS v lindh 588

State Terrorism Statutes 591

muhammad v CommonWealth 591

Chapter Summary 598Chapter Review Questions 598Legal Terminology 599Criminal Law on the Web 599Bibliography 599

Notes 600 Glossary 609 Case Index 617 Subject Index 621 About the Author 639

This book reflects the insights and ideas developed over the course of twenty years of teaching

criminal law and criminal procedure to undergraduate criminal justice students The volume

combines the concepts and learning tools found in undergraduate texts with the types of

chal-lenging cases and issues that are characteristic of law school casebooks Each chapter incorporates

• Following the edited case decisions, “Cases and Commentaries” and “You

Decide” review exercises are provided In the “You Decide” sections, actual cases are

dis-cussed, and readers are asked to act as judges

State Statutes, the Model Penal Code, and Discussion Boxes.

selected statutes and the provisions of the Model Penal Code are reprinted and analyzed

Discussion boxes and graphs supplement the coverage in most chapters

Learning Tools.

• Learning tools summarize and reinforce the material These include

introductory vignettes, chapter outlines, questions for discussion following each case, legal

equations, chapter review questions, legal terminology lists, bibliographies, and Web-based

study aides

The book provides a contemporary perspective on criminal law that encourages students to

actively read and analyze the text I hope that at the conclusion of the course, students will have

mastered the substance of criminal law and have developed the ability to understand and to

cre-atively apply legal rules My hope is that students come to appreciate that criminal law is dynamic

and evolutionary and is not merely a static and mechanical set of rules

The Case Method

One of my aims is to provide a book that students find interesting and instructors consider

edu-cationally valuable I have found that undergraduates enjoy and easily absorb material taught

through the case method In my experience, learning is encouraged when students are presented

with concrete factual situations that illustrate legal rules The case method also lends itself to an

interactive educational environment in which students engage in role playing or apply legal

prec-edents to novel factual scenarios The case method has the additional benefit of assisting students

to refine their skills in critical reading and analysis and in logical thinking

The cases in the text are organized to enhance learning and comprehension The decisions

have been edited to emphasize the core components of the judgments, and technicalities have

been kept to a minimum Each case is divided into Facts, Issue, Reasoning, and Holding I

strongly believe in the educational value of factual analysis and have included a fairly full

descrip-tion of the facts The textbook highlights the following:

Classic Cases.

• The book includes various classic cases that are fundamental to the study of

criminal law as well as cases that provide a clear statement of the law

xi

Contemporary Cases.

• I have incorporated contemporary cases that reflect our increasingly diverse and urbanized society This includes cases that address the issues of carjacking, com-puter crime, drugs, gangs, stalking, terrorism, white-collar crime, cultural diversity, and ani-mal rights Attention is also devoted to gender, race, domestic violence, and hate crimes

Public Policy

• I have found that among the most engaging aspects of teaching criminal law are the questions of public policy, law, and morality that arise in various cases The book constantly encourages students to reflect on the impact and social context of legal rules and raises issues throughout, such as whether we are justified in taking a life to preserve several other lives under the law of necessity

Chapter Organization

Each chapter is introduced by a vignette This is followed by Core Concepts and Summary Statements, which outlines the central points The Introduction to the chapter then provides

an overview of the discussion

The cases are introduced by essays These discussions clearly present the development and elements of the relevant defense, concept, or crime and also include material on public policy considerations Each case is introduced by a question that directs students to the relevant issue

At the conclusion of the case, questions for discussion ask students to summarize and analyze the facts and legal rule These questions, in many instances, are followed by Cases and Comments that expand on the issues raised by the edited case in the textbook There is also a feature titled You Decide that provides students with the opportunity to respond to the facts

of an actual case The “answers” are available on the book’s Web site at www.sagepub.com/ lippmanccl2e.

The essays are often accompanied by excerpts from state statutes and an analysis of the

Model Penal Code These provide students with an appreciation of the diverse approaches to criminal statutes The discussion of each defense or crime concludes with a legal equation that clearly presents the elements of the defense or crime

The chapters close with a Chapter Summary that outlines the important points This

is followed by Chapter Review Questions, Legal Terminology, a Web exercise, and a

Bibliography A Glossary appears at the end of the book Additional learning tools are included

on the Web site

Most of the chapters also include Crime in the News This is a brief discussion of legal opments and cases that students have likely encountered in the media The purpose is to highlight contemporary issues and debates and to encourage students to consider the impact of the media

devel-in shapdevel-ing our perceptions Several chapters also devel-include Crime on the Streets, which employs graphs to illustrate the frequency of various criminal offenses or other pertinent information This

is intended to give students a sense of the extent of crime in the United States and to connect the study of criminal law to the field of criminal justice The Web site provides resources that enable instructors to augment the material in the book and to assist in student learning

Organization of the Text

The textbook provides broad coverage This enables instructors to select from a range of alternative topics You will also find that subjects are included that are not typically addressed The discussion

of rape, for instance, includes “withdrawal of consent” and “rape shield statutes.” Expanded age is provided on topics such as sentencing, homicide, white-collar crime, and terrorism

cover-The textbook is organized into seven parts We begin with the nature, purpose, and tional context of criminal law as well as sentencing and then cover the basic elements of criminal responsibility and offenses The next parts of the textbook discuss crimes against the person and

constitu-crimes against property and business The book concludes with discussions of constitu-crimes against

pub-lic morality and crimes against the state

Nature, Purpose, and Constitutional Context of Criminal Law:

dis-cusses the nature, purpose, and function of criminal law This introduction to criminal law

is followed by an appendix on reading legal cases Chapter 2 covers the constitutional limits

on criminal law, including due process, equal protection, freedom of speech, and the right

to privacy Chapter 3 provides an overview of punishment and sentencing and discusses the

Eighth Amendment prohibition on cruel and unusual punishment

Principles of Criminal Responsibility:

crime Chapter 4 discusses criminal acts and Chapter 5 is concerned with criminal intent,

concurrence, and causation

Parties, Vicarious Liability, and Inchoate Crimes:

dis-cusses the scope of criminal responsibility Chapter 6 disdis-cusses parties to crime and

vicari-ous liability Chapter 7 covers the inchoate crimes of attempt, conspiracy, and solicitation

Criminal Defenses:

• The fourth part of the text discusses defenses to criminal liability

Chapter 8 outlines justifications and Chapter 9 encompasses excuses

Crimes Against the Person:

• The fifth part focuses on crimes against the person Chapter

10 is concerned with criminal sexual conduct, assault and battery, kidnapping, and false

imprisonment Chapter 11 provides a lengthy treatment of homicide

Crimes Against Habitation, Property, and White-Collar Crime:

covers burglary, trespass, arson, and mischief These crimes against property were

origi-nally conceived as protecting the safety and security of the home Chapter 13 centers

on other crimes against property, including larceny, embezzlement, identity theft, and

carjacking Chapter 14 provides an overview of white-collar crime, commercial offenses

that are designed to illegally enhance an individual’s income or corporate profits This

chapter covers a range of topics, including environmental crimes, securities fraud, mail

and wire fraud, and public corruption

Crimes Against Public Order, Morality, and the State:

against public order and morality that threaten the order and stability of the community

The chapter covers a number of topics including disorderly conduct, riot, vagrancy, and

efforts to combat homelessness, gangs, and prostitution Chapter 16 discusses crimes against

the state, stressing counterterrorism

Second Edition

In writing the second edition, I have benefited from the insightful comments of reviewers I also

have drawn on my experience in teaching the text The changes to the book were adopted

follow-ing a thorough review of contemporary court decisions and developments I focused my efforts

on sharpening topics that caused students particular problems and resisted changes that did not

strengthen the text The standard was whether a modification assisted in teaching and learning

The primary changes to the text include the following:

Cases.

• New cases have been added that illuminate important concepts This includes

judg-ments illustrating the difference between kidnapping and false imprisonment as well as

decisions distinguishing between burglary and trespass Other cases explore the insanity

defense, money laundering, strict liability, and terrorism A number of cases have been

placed on the study site Several cases from the first edition have been edited to highlight

important aspects of the decision

Statutory Standard

• Excerpts from state statutes have been added to illustrate

contem-porary developments in areas such as computer crime

New Material

• Chapters have been updated to maintain the contemporary content and

theme of the book and to clarify concepts discussed in the book

You Decide.

• Most chapters include several new “You Decide” sections These problems

clarify concepts, illustrate the complexity of legal analysis, and enhance the interactive

character of the text

Study Site

• New material has been added to the study site to assist in student learning You

will find a number of interesting cases available on the study site

I am hopeful that the textbook conveys my passion and enthusiasm for the teaching of criminal law and contributes to the teaching and learning of this most fascinating and vital topic The book has been the product of the efforts and commitment of countless individuals who deserve much

of the credit

Let me first thank those responsible for compiling the state-specific material on the Web site

I also greatly benefited from reviewers who as noted made valuable contributions to the manuscript

Glenn Coffey, formerly of Virginia Commonwealth UniversityJulie Currie, Temple University

Roger Enriquez, University of Texas at San AntonioJona Goldschmidt, Loyola University Chicago

O Hayden Griffin III, University of FloridaDan Haley, Tidewater Community CollegeRay Kessler, Sul Ross State UniversityThomas A Lateano, Kean UniversityDonald Liddick, Penn State University, The Eberly CampusRussell Loving, California State University, SacramentoEvan J Mandery, John Jay College of Criminal JusticeKerry Muehlenbeck, Mesa Community CollegePhilip M Stinson, Indiana University of PennsylvaniaJennifer Wesely, University of North Florida

Jane Younglove, California State University, Stanislaus

The people at SAGE Publications are among the most skilled professionals that an author is likely to encounter An author is fortunate to publish with SAGE, a publisher that is committed

to quality books The executive editor, Jerry Westby, provided intelligent suggestions and expert direction Denise Simon certainly has no equal as a developmental editor Assistant Editor Leah Mori supervised the preparation of the study site and was responsible for monitoring a myriad

of details associated with publication of the manuscript I would also like to thank all the expert professionals at SAGE in production and design who contributed their talents, particularly senior project editor Sarah Quesenberry, who coordinated the publication of this lengthy manuscript The text was immensely improved by the meticulous and intelligent copyediting of Ellen Howard, Chase Exon, and Cate Huisman

I must mention colleagues at the University of Illinois at Chicago, Greg Matoesian, Jess Maghan, Dennis Judd, Oneida Mascarenas, John Hagedorn, Lisa Frohmann, the late Gordon Misner, Laurie Schaffner, Dagmar Lorenz, and Dennis Rosenbaum who first proposed that I write this textbook Daniel Hepworth did an admirable job in working on the peripherals A great debt of gratitude, of course, is owed to my students, who constantly provide new and creative insights

I am fortunate to have loyal friends who have provided inspiration and ment These include my dear friends Wayne Kerstetter, Deborah Allen-Baber, and Agata Fijalkowski as well as Sharon Savinski, Mindie Lazarus-Black, the late Leanne Lobravico, Sean McConville, Sheldon Rosing, Bryan Burke, Bill Lane, Annamarie Pastore, Robin Wagner, Donna Dorney, and Kris Clark I also must thank Ralph and Isadora Semsker

encourage-Dr Mary Hallberg has been an important person in my life throughout the writing of the text, and the late Lidia Janus remains my true north and source of inspiration and love of my life

I have two members of my family living in Chicago My sister, Dr Jessica Lippman, and

niece, Professor Amelia Barrett, remain a source of encouragement and generous assistance

Finally, the book is dedicated to my parents, Mr and Mrs S.G Lippman, who provided me

with a love of learning My late father, S.G Lippman, practiced law for seventy years in the

service of the most vulnerable members of society He believed that law was the highest

call-ing and never turned away a person in need Law, for him, was a passionate callcall-ing to pursue

justice and an endless source of discussion, debate, and fascination

My source for the Model Penal Code excerpts throughout the text is Model Penal Code ©

(1985) by the American Law Institute Reprinted with permission All rights reserved

1

The Nature, Purpose, and Function of Criminal Law

May the police officers be subjected to prosecution in both state and federal court?

As the videotape begins, it shows that King rose from the

ground and charged toward Officer Powell Powell took a step

and used his baton to strike King on the side of his head King

fell to the ground From the eighteenth to the thirtieth second

on the videotape, King attempted to rise, but Powell and Wind

each struck him with their batons to prevent him from doing

so From the thirty-fifth to the fifty-first second, Powell

admin-istered repeated blows to King’s lower extremities; one of the

blows fractured King’s leg At the fifty-fifth second, Powell struck

King on the chest, and King rolled over and lay prone At that

point, the officers stepped back and observed King for about

10 seconds At one-minute-five-seconds (1:05) on the eotape, Briseno, in the District Court’s words, “stomped” on King’s upper back or neck King’s body writhed in response At 1:07, Powell and Wind again began to strike King with a series

vid-of baton blows, and Wind kicked him in the upper thoracic or cervical area six times until 1:26 At about 1:29, King put his hands behind his back and was handcuffed

Core Concepts and Summary Statements

Introduction

The criminal law is the foundation of

the criminal justice system The law

defines the acts that may lead to an

arrest, prosecution, and imprisonment

States punish a range of acts in their

criminal codes

The Nature of Criminal Law

Crime is conduct that, if shown to

have taken place, will result in a formal

and solemn pronouncement of moral

condemnation by the community

Criminal and Civil Law

The civil law protects the individual

rather than the public interest

The Purpose of Criminal Law

The criminal law prohibits conduct that

causes or threatens the public interest;

defines and warns people of the acts

that are subject to criminal punishment;

distinguishes between serious and minor

offenses; and imposes punishment

to protect society and to satisfy the

demands for retribution, rehabilitation,

and deterrence

The Principles of Criminal Law

Basic principles essential for understanding the criminal law include the concepts

of criminal acts, criminal intent, the concurrence between acts and intent, causality, responsibility, and defenses

Categories of Crime

A Felonies are punishable by death or by imprisonment for more than a year Other offenses are misdemeanors Some states provide for minor offenses that do not result in imprisonment; these are referred to as violations or infractions

B. Mala in se crimes are inherently evil;

mala prohibita crimes are not viewed

as inherently evil

C Crimes also may be categorized by subject matter; examples are crimes against a person or property

Sources of Criminal Law

A There are a number of sources of criminal law ranging from the common law to state and federal statutes to the U.S and state constitutions

B The common law originated in the common customs and practices of the people of England and can be traced to the Norman conquest of England in 1066 a.d This law was transported to the American colonies

C American states in the nineteenth century began to adopt

comprehensive criminal codes States today differ on whether they continue to recognize the common law in areas not addressed by state statutes Most states no longer recognize the common law, and there are no federal common law crimes

D States possess the broad authority to protect the health, safety, welfare, well-being, and tranquility of the community

E In 1962, the American Law Institute adopted the Model Penal Code to encourage and guide the uniform drafting and reform of state statutes

F The U.S Constitution assigns various powers to the federal government that form the foundation for the federal criminal code

G The U.S and individual state constitutions establish limits and standards for the criminal law

For a deeper look at this topic, visit the study site.

The criminal law is the foundation of the criminal justice system The law defines the conduct that may lead to an arrest by the police, trial before the courts, and incarceration in prison When we think about criminal law, we typically focus on offenses such as rape, robbery, and murder States, however, condemn a range of acts in their criminal codes, some of which may surprise you In Alabama, it is a criminal offense to promote or engage in a wrestling match with a bear or to train

a bear to fight in such a match.1 A Florida law states that it is unlawful to possess “any ignited tobacco product” in an elevator.2 Rhode Island declares that an individual shall be imprisoned for seven years who voluntarily engages in a duel with a dangerous weapon or who challenges an individual to a duel.3 In Wyoming you can be arrested for skiing while being impaired by alcohol4

or for opening and failing to close a gate in a fence that “crosses a private road or river.”5 You can find criminal laws on the books in various states punishing activities such as playing dominos

on Sunday, feeding an alcoholic beverage to a moose, cursing on a miniature golf course, making love in a car, or performing a wedding ceremony when either the bride or groom is drunk.6 In Louisiana, you risk being sentenced to ten years in prison for stealing an alligator, whether dead

or alive, valued at $1,000.7

The Nature of Criminal Law

Are there common characteristics of acts that are labeled as crimes? How do we define a crime? The easy answer is that a crime is whatever the law declares to be a criminal offense and punishes with

a penalty The difficulty with this approach is that not all criminal convictions result in a fine or imprisonment Rather than punishing a defendant, the judge may merely warn him or her not to repeat the criminal act Most commentators stress that the important feature of a crime is that it is

an act that is officially condemned by the community and carries a sense of shame and humiliation Professor Henry M Hart, Jr defines crime as “conduct which, if shown to have taken place” will result in the “formal and solemn pronouncement of the moral condemnation of the community.”8

The central point of Professor Hart’s definition is that a crime is subject to formal tion by a judge and jury representing the people in a court of law This distinguishes a crime from acts most people would find objectionable that typically are not subject to state prosecution and official punishment We might, for instance, criticize someone who cheats on his or her spouse,

condemna-but we generally leave the solution to the individuals involved Other matters are left to institutions

to settle; schools generally discipline students who cheat or disrupt classes, but this rarely results

in a criminal charge Professional baseball, basketball, and football leagues have their own private procedures for disciplining players Most states leave the decision whether to recycle trash to the

individual and look to peer pressure to enforce this obligation.

Criminal and Civil Law

How does the criminal law differ from the civil law? The civil law is that branch of the law that protects the individual rather than the public interest A legal action for a civil wrong is brought by

an individual rather than by a state prosecutor You may sue a mechanic who breaches a contract

to repair your car or bring an action against a landlord who fails to adequately heat your ment The injury is primarily to you as an individual, and there is relatively little harm to society

apart-A mechanic who intentionally misleads and harms a number of innocent consumers, however, may find himself or herself charged with criminal fraud

Civil and criminal actions are characterized by different legal procedures For instance, tion of a crime requires the high standard of proof beyond a reasonable doubt, although responsi-bility for a civil wrong is established by the much lower standard of proof by a preponderance of the evidence or roughly fifty-one percent certainty The high standard of proof in criminal cases reflects the fact that a criminal conviction may result in a loss of liberty and significant damage to

convic-an individual’s reputation convic-and stconvic-anding in the community.9

The famous eighteenth-century English jurist William Blackstone summarizes the distinction

between civil and criminal law by observing that civil injuries are “an infringement of the civil

rights which belong to individuals public wrongs, or crimes are a breach and violation of

the public rights and duties, due to the whole community in its social aggregate capacity.”

Blackstone illustrates this difference by pointing out that society has little interest in whether he

sues a neighbor or emerges victorious in a land dispute On the other hand, society has a

substan-tial investment in the arrest, prosecution, and conviction of individuals responsible for espionage,

murder, and robbery.10

The difference between a civil and criminal action is not always clear, particularly with regard

to an action for a tort, which is an injury to a person or to his or her property Consider the

drunken driver who runs a red light and hits your car The driver may be sued in tort for negligently

damaging you and your property as well as criminally prosecuted for reckless driving The purpose

of the civil action is to compensate you with money for the damage to your car and for the

physi-cal and emotional injuries you have suffered In contrast, the criminal action punishes the driver

for endangering society Civil liability is based on a preponderance of the evidence standard, while

a criminal conviction carries a possible loss of liberty and is based on the higher standard of guilt

beyond a reasonable doubt You may recall that former football star O.J Simpson was acquitted of

murdering Nicole Brown Simpson and Ron Goldman but was later found guilty of wrongful death

in a civil court and ordered to compensate the victims’ families in the amount of $33.5 million

The distinction between criminal and civil law proved immensely significant for Kansas inmate

Leroy Hendricks Hendricks was about to be released after serving ten years in prison for

molest-ing two thirteen-year-old boys This was only the latest episode in Hendricks’s almost thirty-year

history of indecent exposure and molestation of young children Hendricks freely conceded that

when not confined, the only way to control his sexual urge was to “die.”

Upon learning that Hendricks was about to be released, Kansas authorities invoked the Sexually

Violent Predator Act of 1994, which authorized the institutional confinement of individuals who,

due to a “mental abnormality” or a “personality disorder,” are likely to engage in “predatory acts

of sexual violence.” Following a hearing, a jury found Hendricks to be a “sexual predator.” The

U.S Supreme Court ruled that Hendricks’s continued commitment was a civil rather than criminal

penalty, and that Hendricks was not being unconstitutionally punished twice for the same

crimi-nal act of molestation The Court explained that the purpose of the commitment procedure was

to detain and to treat Hendricks in order to prevent him from harming others in the future rather

than to punish him.11 Do you think that the decision of the U.S Supreme Court makes sense?

The Purpose of Criminal Law

We have seen that the criminal law primarily protects the interests of society, and the civil law

protects the interests of the individual The primary purpose or function of the criminal law is to

help maintain social order and stability The Texas criminal code proclaims that the purpose of

criminal law is to “establish a system prohibitions, penalties, and correctional measures to deal

with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or

public interests for which state protection is appropriate.”12 The New York criminal code sets out

the basic purposes of criminal law as follows:13

Harm.

• To prohibit conduct that unjustifiably or inexcusably causes or threatens substantial

harm to individuals as well as to society

Warning.

• To warn people both of conduct that is subject to criminal punishment and of the

severity of the punishment

• To impose punishments that satisfy the demands for revenge, rehabilitation,

and deterrence of future crimes

Victims.

• To insure that the victim, the victim’s family, and the community interests are

rep-resented at trial and in imposing punishments

The next step is to understand the characteristics of a criminal act

The Principles of Criminal Law

The study of substantive criminal law involves an analysis of the definition of specific crimes (specific part) and of the general principles that apply to all crimes (general part), such as the defense of insanity In our study, we will first review the general part of criminal law and then look at specific offenses Substantive criminal law is distinguished from criminal procedure Criminal procedure involves a study of the legal standards governing the detection, investigation, and prosecution of crime and includes areas such as interrogations, search and seizure, wiretap-ping, and the trial process Criminal procedure is concerned with “how the law is enforced”; crimi-nal law involves “what law is enforced.”

Professors Jerome Hall14 and Wayne R LaFave15 identify the basic principles that compose the general part of the criminal law Think of the general part of the criminal law as the building blocks that are used to construct specific offenses such as rape, murder, and robbery

Criminal Act

• A crime involves an act or failure to act You cannot be punished for bad

thoughts A criminal act is called actus reus.

Criminal Intent.

• A crime requires a criminal intent or mens rea Criminal punishment is

ordi-narily directed at individuals who intentionally, knowingly, recklessly, or negligently harm other individuals or property

• Individuals must receive reasonable notice of the acts that are criminal so as

to make a decision to obey or to violate the law In other words, the required criminal act and criminal intent must be clearly stated in a statute This concept is captured by the Latin

phrase nullum crimen sine lege, nulla poena sin lege (no crime without law, no punishment

without law)

Defenses.

• Criminal guilt is not imposed on an individual who is able to demonstrate that his or her criminal act is justified (benefits society) or excused (the individual suffered from

a disability that prevented him or her from forming a criminal intent)

We now turn to a specific part of the criminal law to understand the various types of acts that are punished as crimes

Categories of Crime

Felonies and Misdemeanors

There are a number of approaches to categorizing crimes The most significant distinction is between a felony and a misdemeanor A crime punishable by death or by imprisonment for more than one year is a felony Misdemeanors are crimes punishable by less than a year in prison Note that whether a conviction is for a felony or misdemeanor is determined by the punishment provided in the statute under which an individual is convicted rather than by the actual punishment imposed Many states subdivide felonies and misdemeanors into several classes or degrees to distinguish between the seriousness of criminal acts Capital felonies are crimes subject to the death penalty or life in prison in states that do not have the death penalty The term gross misdemeanor is used in some states to refer to crimes subject to between six and twelve months in prison, whereas other misdemeanors are termed petty misdemeanors Several states designate a third category of crimes that are termed violations or infractions These tend to be acts that cause only modest social harm and carry fines These offenses are considered so minor that imprisonment is prohibited This includes the violation of traffic regulations

Florida classifies crimes as felonies, misdemeanors, or noncriminal violations Noncriminal violations are primarily punishable by a fine or forfeiture of property The following list shows

the categories of felonies and misdemeanors and the maximum punishment generally allowable

under Florida law:

Capital Felony.

• Death or life imprisonment without parole

Life Felony.

• Life in prison and a $15,000 fine

Felony in the First Degree.

Felony in the Second Degree.

Felony in the Third Degree.

Misdemeanor in the First Degree.

Misdemeanor in the Second Degree.

The severity of the punishment imposed is based on the seriousness of the particular offense

Florida, for example, punishes as a second-degree felony the recruitment of an individual for

prostitution knowing that force, fraud, or coercion will be used to cause the person to engage

in prostitution This same act is punished as a first-degree felony in the event that the person

recruited is under fourteen years old or if death results.16

Mala In Se and Mala Prohibita

Another approach is to classify crime by “moral turpitude” (evil) Mala in se crimes are

consid-ered “inherently evil” and would be evil even if not prohibited by law This includes murder, rape,

robbery, burglary, larceny, and arson Mala prohibita offenses are not “inherently evil” and are

only considered wrong because they are prohibited by a statute This includes offenses ranging

from tax evasion to carrying a concealed weapon, leaving the scene of an accident, and being

drunk and disorderly in public

Why should we be concerned with classification schemes? A felony conviction can prevent

you from being licensed to practice various professions, bar you from being admitted to the armed

forces or joining the police, and prevent you from adopting a child or receiving various forms of

federal assistance In some states, a convicted felon is still prohibited from voting, even following

release The distinction between mala in se and mala prohibita is also important For instance, the

law provides that individuals convicted of a “crime of moral turpitude” may be deported from the

United States

There are a number of other classification schemes The law originally categorized as infamous

those crimes that were considered to be deserving of shame or disgrace Individuals convicted of

infamous offenses such as treason (betrayal of the nation) or offenses involving dishonesty were

historically prohibited from appearing as witnesses at a trial

Subject Matter

This textbook is organized in accordance with the subject matter of crimes, the scheme that is

fol-lowed in most state criminal codes There is disagreement, however, concerning the classification

of some crimes Robbery, for instance, involves the theft of property as well as the threat or

inflic-tion of harm to the victim, and there is a debate about whether it should be considered a crime

against property or against the person Similar issues arise in regards to burglary Subject matter

offenses in descending order of seriousness are as follows:

Crimes Against the State.

• Treason, sedition, espionage, terrorism (Chapter 16)

Crimes Against the Person,

Crimes Against the Person,

• Sexual Offenses, and Other Crimes Rape, assault and battery, false

imprisonment, kidnapping (Chapter 10)

Crimes Against Habitation.

Crimes Against Property.

• Larceny, embezzlement, false pretenses, receiving stolen property,

robbery, fraud (Chapters 13 and 14)

Crimes Against Public Order.

Crimes Against the Administration of Justice.

Crimes Against Public Morals.

The book also covers the general part of criminal law, including the constitutional limits

on criminal law (Chapter 2), sentencing (Chapter 3), criminal acts (Chapter 4), criminal intent (Chapter 5), the scope of criminal liability (Chapters 6 and 7), and defenses to criminal liability (Chapters 8 and 9)

Sources of Criminal Law

We now have covered the various categories of criminal law The next question to consider is this: What are the sources of the criminal law? How do we find the requirements of the criminal law? There are a number of sources of the criminal law in the United States:

English and American Common Law.

English acts of Parliament

State Criminal Codes.

• Every state has a comprehensive written set of laws on crime and punishment

Municipal Ordinances

• Cities, towns, and counties are typically authorized to enact local nal laws, generally of a minor nature These laws regulate the city streets, sidewalks, and build-ings and concern areas such as traffic, littering, disorderly conduct, and domestic animals

crimi-Federal Criminal Code.

• The U.S government has jurisdiction to enact criminal laws that are based on the federal government’s constitutional powers, such as the regulation of inter-state commerce

State and Federal Constitutions.

• The U.S Constitution defines treason and together with state constitutions establishes limits on the power of government to enact criminal laws A crimi-nal statute, for instance, may not interfere with freedom of expression or religion

International Treaties.

• International treaties signed by the United States establish crimes such

as genocide, torture, and war crimes These treaties, in turn, form the basis of federal nal laws punishing acts such as genocide and war crimes when Americans are involved These cases are prosecuted in U.S courts

crimi-Judicial Decisions.

• Judges write decisions explaining the meaning of criminal laws and mining whether criminal laws meet the requirements of state and federal constitutions

deter-At this point, we turn our attention to the common law origins of American criminal law and

to state criminal codes

The Common Law

The English common law is the foundation of American criminal law The origins of the common

law can be traced to the Norman conquest of England in 1066 The Norman king, William the Conqueror, was determined to provide a uniform law for England and sent royal judges through-out the country to settle disputes in accordance with the common customs and practices of the country The principles that composed this common law began to be written down in 1300 in an effort to record the judge-made rules that should be used to decide future cases

By 1600, a number of common law crimes had been developed, including arson, glary, larceny, manslaughter, mayhem, rape, robbery, sodomy, and suicide These were followed

bur-by criminal attempt, conspiracy, blasphemy, forgery, sedition, and solicitation On occasion, the king and Parliament issued decrees that filled the gaps in the common law, resulting in the development of the crimes of false pretenses and embezzlement The distinctive characteristic

of the common law is that it is for the most part the product of the decisions of judges in actual cases

The English civil and criminal common law was transported to the new American colonies and formed the foundation of the colonial legal system that in turn was adopted by the thirteen original states following the American Revolution The English common law was also recognized

by each state subsequently admitted to the Union; the only exception was Louisiana, which lowed the French Napoleonic Code until 1805 when it embraced the common law.17

fol-State Criminal Codes

States in the nineteenth century began to adopt comprehensive written criminal codes This

movement was based on the belief that in a democracy the people should have the opportunity

to know the law Judges in the common law occasionally punished an individual for an act

that had never before been subjected to prosecution A defendant in a Pennsylvania case was

convicted of making obscene phone calls despite the absence of a previous prosecution for this

offense The court explained that the “common law is sufficiently broad to punish although

there may be no exact precedent, any act which directly injures or tends to injure the public.”18

There was the additional argument that the power to make laws should reside in the elected

legislative representatives of the people rather than in unelected judges As Americans began to

express a sense of independence, there was also a strong reaction against being so clearly

con-nected to the English common law tradition, which was thought to have limited relevance to

the challenges facing America As early as 1812, the U.S Supreme Court proclaimed that federal

courts were required to follow the law established by Congress and were not authorized to apply

the common law

States were somewhat slower than the federal government to abandon the common law In a

Maine case in 1821, the accused was found guilty of dropping the dead body of a child into a river

The defendant was convicted even though there was no statute making this a crime The court

explained that “good morals” and “decency” all forbid this act State legislatures reacted against

these types of decisions and began to abandon the common law in the mid-nineteenth century

The Indiana Revised Statutes of 1852, for example, proclaims that “[c]rimes and misdemeanors

shall be defined, and punishment fixed by statutes of this State, and not otherwise.”19

Some states remain common law states, meaning that the common law may be applied

where the state legislature has not adopted a law in a particular area The Florida criminal code

states that the “common law of England in relation to crimes, except so far as the same relates to

the mode and degrees of punishment, shall be of full force in this state where there is no existing

provision by statute on the subject.” Florida law further provides that where there is no statute,

an offense shall be punished by fine or imprisonment but that the “fine shall not exceed $500,

nor the term of imprisonment 12 months.”20 Missouri and Arizona are also examples of

com-mon law states These states’ criminal codes, like that of Florida, contain a reception statute

that provides that the states “receive” the common law as an unwritten part of their criminal

law California, on the other hand, is an example of a code jurisdiction.The California

crimi-nal code provides that “no act or omission is crimicrimi-nal or punishable, except as prescribed or

authorized by this code.”21 Ohio and Utah are also code jurisdiction states The Utah criminal

code states that common law crimes “are abolished and no conduct is a crime unless made so by

this code or ordinance.”22

Professor LaFave observes that courts in common law states have recognized a number of

crimes that are not part of their criminal codes, including conspiracy, attempt, solicitation,

utter-ing gross obscenities in public, keeputter-ing a house of prostitution, cruelly killutter-ing a horse, public

inebriation, and false imprisonment.23

You also should keep in mind that the common law continues to play a role in the law of code

jurisdiction states Most state statutes are based on the common law, and courts frequently consult

the common law to determine the meaning of terms in statutes In the well-known California case of

Keeler v Superior Court, the California Supreme Court looked to the common law and determined that

an 1850 state law prohibiting the killing of a “human being” did not cover the “murder of a fetus.”

The California state legislature then amended the murder statute to punish “the unlawful killing of

a human being, or a fetus.”24 Most important, our entire approach to criminal trials reflects the

com-mon law’s commitment to protecting the rights of the individual in the criminal justice process

State Police Power

Are there limits on a state’s authority to pass criminal laws? Could a state declare that it is a crime

to possess fireworks on July Fourth? State governments possess the broad power to promote the

public health, safety, and welfare of the residents of the state This wide-ranging police power

includes the “duty to protect the well-being and tranquility of a community” and to “prohibit

acts or things reasonably thought to bring evil or harm to its people.”25 An example of the reaching nature of the state police power is the U.S Supreme Court’s upholding of the right of a village to prohibit more than two unrelated people from occupying a single home The Supreme Court proclaimed that the police power includes the right to “lay out zones where family val-ues, youth values, the blessings of quiet seclusion, and clean air make the area a sanctuary for people.”26

far-State legislatures in formulating the content of criminal codes have been profoundly enced by the Model Penal Code

influ-The Model Penal Code

People from other countries often ask how students can study the criminal law of the United States, a country with fifty states and a federal government The fact that there is a significant degree of agreement in the definition of crimes in state codes is due to a large extent to the Model Penal Code

In 1962, the American Law Institute (ALI), a private group of lawyers, judges, and scholars, concluded after several years of study that despite our common law heritage, state criminal stat-utes radically varied in their definition of crimes and were difficult to understand and poorly organized The ALI argued that the quality of justice should not depend on the state in which

an individual was facing trial and issued a multivolume set of model criminal laws, The Proposed Official Draft of the Model Penal Code The Model Penal Code is purely advisory and is intended to

encourage all fifty states to adopt a single uniform approach to the criminal law The statutes are accompanied by a commentary that explains how the Model Penal Code differs from existing state statutes Roughly thirty-seven states have adopted some of the provisions of the Model Penal Code, although no state has adopted every single model law The states that most closely follow the code are New Jersey, New York, Pennsylvania, and Oregon As you read this book, you may find

it interesting to compare the Model Penal Code to the common law and to state statutes.27

This book primarily discusses state criminal law It is important to remember that we also have

a federal system of criminal law in the United States

Federal Statutes

The United States has a federal system of government The states granted various powers to the federal government that are set forth in the U.S Constitution This includes the power to regulate interstate commerce, to declare war, to provide for the national defense, to coin money, to collect taxes, to operate the post office, and to regulate immigration The Congress is entitled to make

“all Laws which shall be necessary and proper” for fulfilling these responsibilities The states retain those powers that are not specifically granted to the federal government The Tenth Amendment

to the Constitution states that the powers “not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

The Constitution specifically authorizes Congress to punish the counterfeiting of U.S rency, piracy and felonies committed on the high seas, and crimes against the “Law of Nations”

cur-as well cur-as to make rules concerning the conduct of warfare These criminal provisions are to be enforced by a single Supreme Court and by additional courts established by Congress

The federal criminal code compiles the criminal laws adopted by the U.S Congress This includes laws punishing acts such as tax evasion, mail and immigration fraud, bribery in obtain-ing a government contract, and the knowing manufacture of defective military equipment The

Supremacy Clause of the U.S Constitution provides that federal law is superior to a state law within those areas that are the preserve of the national government This is termed the preemp- tion doctrine

Several recent court decisions have held that federal criminal laws have unconstitutionally encroached on areas reserved for state governments This reflects a trend toward limiting the federal power to enact criminal laws For instance, the U.S government, with the Interstate Commerce Clause, has interpreted its power to regulate interstate commerce as providing the authority to criminally punish harmful acts that involve the movement of goods or individuals across state lines An obvious example is the interstate transportation of stolen automobiles

In the past few years, the U.S Supreme Court has ruled several of these federal laws tutional based on the fact that the activities did not clearly affect interstate commerce or involve

unconsti-the use of interstate commerce In 1995, unconsti-the Supreme Court ruled in United States v Lopez that

Congress violated the Constitution by adopting the Gun Free School Zones Act of 1990, which

made it a crime to have a gun in a local school zone The fact that the gun may have been

trans-ported across state lines was too indirect a connection with interstate commerce on which to base

federal jurisdiction.28

In 2000, the Supreme Court also ruled unconstitutional the U.S government’s prosecution of

an individual in Indiana who was alleged to have set fire to a private residence The federal law

made it a crime to maliciously damage or destroy, by means of fire or an explosive, any building

used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce

The Supreme Court ruled that there must be a direct connection between a building and

inter-state commerce and rejected the government’s contention that it is sufficient that a building is

constructed of supplies or serviced by electricity that moved across state lines or that the owner’s

insurance payments are mailed to a company located in another state Justice Ruth Bader Ginsburg

explained that this would mean that “every building in the land” would fall within the reach of

federal laws on arson, trespass, and burglary.29

In 2006, in Oregon v Gonzalez, the Supreme Court held that U.S Attorney General John Ashcroft

lacked the authority to prevent Oregon physicians acting under the state’s Death With Dignity Law

from prescribing lethal drugs to terminally ill patients who are within six months of dying.30

The sharing of power between the federal and state governments is termed dual sovereignty

An interesting aspect of dual sovereignty is that it is constitutionally permissible to prosecute a

defendant for the same act at both the state and federal levels so long as the criminal charges

slightly differ You might recall in 1991 that Rodney King, an African American, was stopped by

the Los Angeles police King resisted and eventually was subdued, wrestled to the ground, beaten,

and handcuffed by four officers The officers were acquitted by an all-Caucasian jury in a state

court in Simi Valley, California, leading to widespread protest and disorder in Los Angeles The

federal government responded by bringing the four officers to trial for violating King’s civil right

to be arrested in a reasonable fashion Two officers were convicted and sentenced to thirty months

in federal prison and two were acquitted Later in this chapter, you will be asked to decide whether

this “double prosecution” is fair

We have seen that the state and federal governments possess the power to enact criminal laws

The federal power is restricted by the provisions of the U.S Constitution that define the limits on

governmental power

Constitutional Limitations

The U.S Constitution and individual state constitutions establish limits and standards for the

criminal law The U.S Constitution, as we shall see in Chapter 2, requires that

a state or local law may not regulate an area that is reserved to the federal government A

•

federal law may not encroach upon state power

a law may only infringe upon the fundamental civil and political rights of individuals in

The ability of legislators to enact criminal laws is also limited by public opinion The American

constitutional system is a democracy Politicians are fully aware that they must face elections and

that they may be removed from office in the event that they support an unpopular law As we

learned during the unsuccessful effort to ban the sale of alcohol during the prohibition era in the

early twentieth century, the government will experience difficulties in imposing an unpopular law

on the public

Of course, the democratic will of the majority is subject to constitutional limitations A classic

example is the Supreme Court’s rulings that popular federal statutes prohibiting and punishing

flag burning and desecration compose an unconstitutional violation of freedom of speech.31

Crime in the News

In 1996, California became one of twelve states to authorize the

use of marijuana for medical purposes (The states are Alaska,

Colorado, Hawaii, Maine, Montana, Nevada, New Mexico,

Oregon, Rhode Island, Vermont, and Washington Maryland

exempts medical marijuana users from jail sentences.)

California voters passed Proposition 215, the

Compassionate Use Act of 1996, which is intended to

ensure that “seriously ill” residents of California are able

to obtain marijuana The act provides an exemption from

criminal prosecution for doctors who, in turn, may

autho-rize patients and primary caregivers to possess or cultivate

marijuana for medical purposes The California legislation

is directly at odds with the federal Controlled Substances

Act, which declares it a crime to manufacture, distribute,

or possess marijuana There are more than 100,000

medi-cal marijuana users in California, and roughly one-tenth of

one percent of the population uses medical marijuana in the

states that collect information on medical marijuana users

Angel Raich and Diane Monson are two California

res-idents who suffer from severe medical disabilities Their

doctors have found that marijuana is the only drug that is

able to alleviate their pain and suffering Raich’s doctor

goes so far as to claim that Angel’s pain is so intense that

she might die if deprived of marijuana Monson cultivates

her own marijuana, and Raich relies on two caregivers who

provide her with California-grown marijuana at no cost

On August 15, 2000, agents from the federal Drug

Enforcement Administration (DEA) raided Monson’s home

and destroyed all six of her marijuana plants The DEA agents

disregarded objections from the Butte County Sheriff’s

Department and the local California District Attorney’s Office

that Monson’s possession of marijuana was perfectly legal

Monson and Raich, along with several doctors and patients,

refused to accept the destruction of the marijuana plants and

asked the U.S Supreme Court to rule on the constitutionality of

the federal government’s refusal to exempt medical marijuana

users from criminal prosecution and punishment The case

was supported by the California Medical Association and the

Leukemia and Lymphoma Society Raich suffers from severe

chronic pain stemming from fibromyalgia, endometriosis,

scoliosis, uterine fibroid tumors, rotator cuff syndrome, an

inoperable brain tumor, seizures, life-threatening wasting

syn-drome, and constant nausea She also experiences extreme

chemical sensitivities that result in violent allergic reactions

to virtually every pharmaceutical drug Raich was confined to

a wheelchair before reluctantly deciding to smoke marijuana, a

decision that led to her enjoying a fairly normal life

A doctor recommended that Monson use marijuana to

treat severe chronic back pain and spasms She alleges

that marijuana alleviates the pain that she describes as

comparable to an uncontrollable cramp Monson claims

that other drugs have proven ineffective or resulted in

nausea and create the risk of severe injuries to her

kid-neys and liver The marijuana reportedly reduces the

fre-quency of Monson’s spasms and enables her to continue

to work

The U.S Supreme Court, in Gonzalez v Raich in 2005, held that the federal prohibition on the possession of marijuana would be undermined by exempting marijuana possession in California and other states from federal criminal enforcement The Supreme Court explained that the cultivation of marijuana under California’s medical marijuana law, although clearly a local activity, frustrated the federal government’s effort to con-trol the shipment of marijuana across state lines, because medical marijuana inevitably would find its way into interstate commerce, increase the nationwide supply, and drive down the price of the illegal drug There was also a risk that com-pletely healthy individuals in California would manage to be fraudulently certified by a doctor to be in need of medical mari-juana Three of the nine Supreme Court judges dissented from the majority opinion Justice Sandra Day O’Connor observed that the majority judgment “stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently.”

Following the decision, Angel Raich urged the federal government to have some “compassion and have some heart” and not to “use taxpayer dollars to come in and lock

us up we are using this medicine because it is saving our lives.” She asked why the federal government was trying to kill her Opponents of medical marijuana defend the Supreme Court’s decision and explain that individuals should look to traditional medical treatment rather than being misled into thinking that marijuana is an effective therapy They also argue that marijuana is a highly addictive drug that could lead individuals to experiment with even more harmful narcotics.There were over 820,000 arrests for possession or sale of marijuana in 2006, most of which were carried out by state authorities The question is whether the federal authori-ties will use the Supreme Court decision as a justification for arresting individuals growing or possessing medical mari-juana The federal government has adopted a policy of target-ing individuals in California accused of growing 1,000 plants

or more and has raided over sixty marijuana dispensaries in the state One California medical marijuana grower who had been prosecuted and convicted by the federal government was released after serving two years of a ten-year sentence for growing medical marijuana plants pending the outcome in Gonzalez v Raich After the decision, he was ordered back

to prison In 2007, another defendant had his ten-year tence affirmed by the Ninth Circuit Court of Appeals Federal judges in a series of cases have refused to permit witnesses

sen-or defendants to raise the defense that the medical use of marijuana is lawful under California law

The California Attorney General, Bill Lockyer, observed that there is a “vast philosophical difference” between the federal government and Californians on the “rights of patients to have access to the medicine they need to sur-vive and lead healthier lives.” The early indications are that President Barack Obama will halt federal prosecu-tions of individuals whose possession or distribution of medical marijuana complies with state law

Where do you stand on the medical marijuana controversy?

Consider the following factual scenario that is taken from the U.S Supreme Court’s tion of the events surrounding the beating of Rodney King.32

descrip-You Decide 1.1 On the evening of March 2, 1991,

Rodney King and two of his friends sat

in King’s wife’s car in Altadena, California, a city in Los Angeles County, and drank malt liquor for a number of hours Then, with King driving, they left Altadena via a major freeway King was intoxicated California

Highway Patrol (CHP) officers observed King’s car traveling at

a speed they estimated to be in excess of 100 mph The

offi-cers followed King with red lights and sirens activated and

ordered him by loudspeaker to pull over, but he continued to

drive The Highway Patrol officers called on the radio for help

Units of the Los Angeles Police Department joined in the

pur-suit, one of them manned by petitioner Laurence Powell and

his trainee, Timothy Wind (The officers are all Caucasian;

King is African American King later explained that he fled

because he feared that he would be returned to prison after

having been released four months earlier following a year

spent behind bars for robbery.)

King left the freeway, and after a chase of about eight

miles, stopped at an entrance to a recreation area The

offi-cers ordered King and his two passengers to exit the car and

to assume a felony prone position—that is, to lie on their

stomachs with legs spread and arms behind their backs

King’s two friends complied King, too, got out of the car but

did not lie down Petitioner Stacey Koon arrived, at once

fol-lowed by Ted Briseno and Roland Solano All were officers of

the Los Angeles Police Department, and as sergeant, Koon

took charge The officers again ordered King to assume the

felony prone position King got on his hands and knees but did

not lie down Officers Powell, Wind, Briseno, and Solano tried

to force King down, but King resisted and became combative,

so the officers retreated Koon then fired Taser darts

(designed to stun a combative suspect) into King

The events that occurred next were captured on

video-tape by a bystander As the videovideo-tape begins, it shows that

King rose from the ground and charged toward Officer Powell

Powell took a step and used his baton to strike King on the

side of his head King fell to the ground From the eighteenth

to the thirtieth second on the videotape, King attempted to

rise, but Powell and Wind each struck him with their batons to

prevent him from doing so From the thirty-fifth to the fifty-first

second, Powell administered repeated blows to King’s lower

extremities; one of the blows fractured King’s leg At the

fifty-fifth second, Powell struck King on the chest, and King rolled

over and lay prone At that point, the officers stepped back

and observed King for about ten seconds Powell began to

reach for his handcuffs (At the sentencing phase, the district

court found that Powell no longer perceived King to be a threat

at this point.) At one-minute-five-seconds (1:05) on the

video-tape, Briseno, in the District Court’s words, “stomped” on

King’s upper back or neck King’s body writhed in response At

1:07, Powell and Wind again began to strike King with a series

of baton blows, and Wind kicked him in the upper thoracic or

cervical area six times until 1:26 At about 1:29, King put his

hands behind his back and was handcuffed Where the baton

blows fell and the intentions of King and the officers at

vari-ous points were contested at trial, but, as noted, petitioners’

guilt has been established

Powell radioed for an ambulance He sent two messages

over a communications network to the other officers that said

“oops” and “I haven’t [sic] beaten anyone this bad in a long time.” Koon sent a message to the police station that said: “Unit just had a big time use of force Tased and beat the suspect

of CHP pursuit big time.” King was taken to a hospital where he was treated for a fractured leg, multiple facial fractures, and numerous bruises and contusions Learning that King worked at Dodger Stadium, Powell said to King: “We played a little ball tonight, didn’t we Rodney? You know, we played a little ball,

we played a little hardball tonight, we hit quite a few home runs Yes, we played a little ball and you lost and we won.”Koon, Powell, Briseno, and Wind were tried in California state court on charges of assault with a deadly weapon and excessive use of force by a police officer The officers were acquitted of all charges, with the exception of one assault charge against Powell that resulted in a hung jury (The jury was composed of ten Caucasians, one Hispanic, and one Asian American.) The verdicts touched off widespread rioting in Los Angeles More than 40 people were killed in the riots, more than 2,000 were injured, and nearly $1 billion in property was destroyed (Los Angeles Mayor Tom Bradley declared that there

“appears to be a dangerous trend of racially motivated dents running through at least some segments of the police department,” and President George H.W Bush announced in May that the verdict had left him with a deep sense of personal frustration and anger and that he was ordering the Justice Department to initiate a prosecution against the officers.)

inci-On August 4, 1992, a federal grand jury indicted the four officers, charging them with violating King’s constitutional rights under color of law Powell, Briseno, and Wind were charged with willful use of unreasonable force in arresting King Koon was charged with willfully permitting the other offi-cers to use unreasonable force during the arrest After a trial

in U.S District Court for the Central District of California, the jury convicted Koon and Powell but acquitted Wind and Briseno Koon and Powell were sentenced to thirty months in prison This jury was comprised of nine Caucasians, two African Americans, and one Hispanic King later won a $3.8 million verdict from the City of Los Angeles He used some of the money to establish a rap record business

The issue to consider is whether Officers King and Powell may be prosecuted and acquitted in California state court and then prosecuted in federal court This seems to violate the prohibition on double jeopardy in the Fifth Amendment to the U.S Constitution, which states that individuals shall not be

“twice put in jeopardy of life or limb.” Double jeopardy means that an individual should not be prosecuted more than once for the same offense Without this protection, the government could subject people to a series of trials in an effort to obtain

a conviction

It may surprise you to learn that judges have held that the dual sovereignty doctrine permits the U.S government to pros-ecute an individual under federal law who has been acquitted

on the state level The theory is that the state and federal governments are completely different entities and that state government is primarily concerned with punishing police offi-cers and with protecting residents against physical attack, while the federal government is concerned with safeguarding the civil liberties of all Americans Each of these entities pro-vides a check on the other to ensure fairness for citizens The evidence introduced in the two prosecutions to establish the police officers’ guilt in the King case was virtually identical,

(Continued)

and the federal prosecution likely was brought in response to

political pressure On the other hand, the federal government

historically has acted to prevent unfair verdicts, such as the

acquittal of members of the Ku Klux Klan charged with killing

civil rights workers during the 1960s

Do you believe that it was fair to subject the Los Angeles

police officers to the expense and emotional stress of two

trials? As the attorney general to the United States, would you have advised President George H.W Bush to bring federal charges against the officers following their acquittal by a California jury?

You can find the answer at www.sagepub.com/lippmanccl2e

(Continued)

Chapter Summary

Criminal law is the foundation of the criminal justice system The law defines the acts that may lead to arrest, trial, and incarceration We typically think about crime as involving violent conduct, but in fact a broad variety of acts are defined as crimes

Criminal law is best defined as conduct that, if shown to have taken place, will result in the “formal and solemn pronouncement of the moral condemnation of the community.” Civil law is distinguished from criminal law by the fact that it primarily protects the interests of the individual rather than the interests of society

The purpose of criminal law is to prohibit conduct that causes harm or threatens harm to the individual and to the public interests, to warn people of the acts that are subject to criminal punishment, to define criminal acts and intent,

to distinguish between serious and minor offenses, to punish offenders, and to ensure that the interests of victims and the public are represented at trial and in the punishment of offenders

In analyzing individual crimes, we will be concerned with several basic concerns that compose the general part of

the criminal law A crime is composed of a concurrence between a criminal act (actus reus) and criminal intent (mens rea)

and the causation of a social harm Individuals must be provided with notice of the acts that are criminally condemned

in order to have the opportunity to obey or to violate the law Individuals must also be given the opportunity at trial

to present defenses (justifications and excuses) to a criminal charge

The criminal law distinguishes between felonies and misdemeanors A crime punishable by death or by ment for more than one year is a felony Other offenses are misdemeanors Offenses are further divided into capital and other grades of felonies and into gross and petty misdemeanors A third level of offenses are violations or infractions, acts that are punishable by fines

imprison-Another approach is to classify crime in terms of “moral turpitude.” Mala in se crimes are considered “inherently evil,” and mala prohibita crimes are not inherently evil and are only considered wrong because they are prohibited by

statute

Our textbook categorizes crimes in accordance with the subject matter of the offense, the scheme that is followed

in most state criminal codes This includes crimes against the state, crimes against the person, crimes against tion, crimes against property, crimes against public order, and crimes against the administration of justice

habita-There are a number of sources of American criminal law These include the common law, state and federal nal codes, the U.S and state constitutions, international treaties, and judicial decisions The English common law was transported to the United States and formed the foundation for the American criminal statutes adopted in the nineteenth and twentieth centuries Some states continue to apply the common law in those instances in which the state legislature has not adopted a criminal statute In code jurisdiction states, however, crimes only are punishable if incorporated into law

crimi-States possess broad police powers to legislate for the public health, safety, and welfare of the residents of the state The drafting of state criminal statutes has been heavily influenced by the American Law Institute’s Model Penal Code, which has helped ensure a significant uniformity in the content of criminal codes

The United States has a system of dual sovereignty in which the state governments have provided the federal ernment with the authority to legislate various areas of criminal law The Supremacy Clause provides that federal law takes precedence over state law in the areas that the U.S Constitution explicitly reserves to the national government There is a trend toward strictly limiting the criminal law power of the federal government The U.S Supreme Court, for example, has ruled that the federal government has unconstitutionally employed the Interstate Commerce Clause to extend the reach of federal criminal legislation to the possession of a firearm adjacent to schools

gov-The authority of the state and federal governments to adopt criminal statutes is limited by the provisions of eral and state constitutions For instance, laws must be drafted in a clear and nondiscriminatory fashion and must not

fed-Chapter Review Questions

1 Define a crime

2 Distinguish between criminal and civil law Distinguish between a criminal act and a tort

3 What is the purpose of criminal law?

4 Is there a difference between criminal law and criminal procedure? Distinguish between the specific and general part of the nal law

5 List the basic principles that compose the general part of criminal law

6 Distinguish between felonies, misdemeanors, capital felonies, gross and petty misdemeanors, and violations

7. What is the difference between mala in se and mala prohibita crimes?

8 Discuss the development of the common law What do we mean by common law states and code jurisdiction states?

9 Discuss the nature and importance of the state police power

10 Why is the Model Penal Code significant?

11 What is the legal basis for federal criminal law? Define the preemption doctrine and dual sovereignty What is the significance of the Interstate Commerce Clause?

12 What are the primary sources of criminal law? How does the U.S Constitution limit the criminal law?

13 Why is understanding the criminal law important in the study of the criminal justice system?

Legal Terminology

capital felony

civil law

code jurisdiction

common law crimes

common law states

mala in se mala prohibita

misdemeanorModel Penal Code

petty misdemeanorpolice powerpreemption doctrinereception statutessubstantive criminal lawSupremacy Clausetort

violation

Criminal Law on the Web

Log on to the Web-based student study site at www.sagepub

.com/lippmanccl2e to assist you in completing the Criminal

Law on the Web exercises, as well as for additional features

such as podcasts, Web quizzes, and audio/video links

1 A number of sites contain collections of state and federal laws

and links to state criminal cases As a first step, go to www

.findlaw.com, click on Criminal Law, and read about the

steps in a criminal case This is also a good site at which to

find the definitions of various crimes Then explore the site

maintained by the Cornell University Law School, and find the criminal law statutes of the state in which you live You also might want to go to www.lawsource.com

2 Learn more about the Rodney King case Would you have convicted the police officers?

3 You may also want to ask yourself whether it is possible for an innocent individual to be convicted The Innocence Project works to exonerate the wrongfully convicted Why are indi-viduals wrongfully convicted?

4 Read about medical marijuana laws

impose retroactive or cruel or unusual punishment The federal and state governments possess the authority to enact criminal legislation only within their separate spheres of constitutional power

Joshua Dressler, Understanding Criminal Law, 3rd ed (New York:

Lexis, 2001), pp 1–32 A good introduction to the nature of

criminal law and to the common law and statutes

George Fletcher, Rethinking Criminal Law (New York: Oxford

University Press, 2000) A challenging discussion of the

his-tory and philosophy of criminal law

Lawrence M Friedman, Crime and Punishment in American History

(New York: Basic Books, 1993) A history of criminal justice

in the United States

Hyman Gross, A Theory of Criminal Justice (New York: Oxford

University Press, 1979) A highly sophisticated discussion

of the philosophical basis of criminal law

Jerome Hall, General Principles of Criminal Law, 2nd ed

(Indianapolis, IN: Bobbs-Merrill, 1960), pp 1–359 A detailed discussion of the theory of criminal law and the basic elements of a crime

Wayne LaFave, Criminal Law, 3rd ed (St Paul, MN: West

Publishing, 2000), pp 1–198 A comprehensive discussion

of the characteristics, purpose, classification, and common law foundation of criminal law

Rollin M Perkins and Ronald N Boyce, Criminal Law, 3rd ed

(Mineola, NY: Foundation Press, 1982), pp 1–46 A cated analysis of the purpose, definition, and classification of criminal law and development of the common law

sophisti-Reading and Briefing Cases

15

Introduction

A unique aspect of studying criminal law is that you have the opportunity to read actual court decisions Reading cases will likely be a new experience, and although you may encounter some initial frustrations, in my experience students fairly quickly master the techniques of legal analysis

The case method was introduced in 1870 by Harvard law professor Christopher Columbus Langdell and is the primary method of instruction in nearly all American law schools This approach is based on the insight that students learn the law most effectively when they study actual cases Langdell encouraged instructors to employ a question and answer classroom technique termed the Socratic method The most challenging aspect of this approach involves

posing hypotheticalor fictitious examples that require students to apply the case material to new factual situations.The study of cases assists you to

understand the principles of criminal law,

The cases you read are the products of an adversary system in which the prosecutors and defense attorneys present

evidence and examine witnesses at trial The evaluation of the facts is the responsibility of the jury or, in the absence of

a jury, the judge A case heard by a judge without a jury is termed a bench trial The adversary system is premised on the belief that truth will emerge from the clash between two dedicated attorneys “zealously presenting their cause.”

The lowest courts in the judicial hierarchy are trial courts The proceedings are recorded in trial transcripts that recite the selection of jurors, testimony of witnesses, arguments of lawyers, and rulings by the judge Individuals con-victed before a trial court may appeal the guilty verdict to appellate (or appeal) courts The cases you read in this book in most instances are the decisions issued by appellate court judges reviewing a guilty verdict entered against a

defendant at trial These reviews are based on transcripts and briefs. Briefs are lengthy written arguments submitted

to the court by the prosecution and defense The two sides may also have the opportunity to engage in an oral ment before the appellate court In issuing a decision, the appellate court will accept as established those facts that are most favorable to the party that prevailed at the trial court level

argu-Defendants appealing a verdict by a trial court ordinarily file an appeal with the intermediate court of appeals, which in many states provides the defendant with a new trial or trial de novo The losing party may then file an addi-tional appeal to the state supreme court The party who is appealing is termed the appellant,and the second name is typically the party against whom the appeal is filed or the appellee You also will notice the insertion of “v.” between the names of the parties, which is an abbreviation for the Latin versus.

Individuals who have been convicted and have exhausted their state appeals may file a constitutional challenge

or collateral attack against their conviction in federal court The first name in the title is the name of the prisoner bringing the case, or the petitioner, and the second name, or respondent,is typically the warden or individual in charge of the prison in which the petitioner is incarcerated

In a collateral attack, an inmate bringing the action files a petition for habeas corpus review requesting a federal court to issue an order requiring the state to demonstrate that the petitioner is lawfully incarcerated The ability of a petitioner to compel the state to demonstrate that he or she has been lawfully detained is one of the most important safeguards for individual liberty and is guaranteed in Article I, Section 9, Clause 2 of the U.S Constitution

Federal courts may also preside over criminal cases charging a defendant with a violation of a federal statute There are three levels of federal courts First, there are ninety-four district courts, which are the trial courts Appeals may be taken to the thirteen courts of appeals and ultimately to the U.S Supreme Court The U.S Supreme Court generally may choose whether to review a case Four of the nine judges must vote to grant a writ of certiorari or an order to

review the decision of a lower court.

The Structure of Cases

A case is divided into an introduction and judicial opinion These two sections have several components that you should

The name of the judge who wrote the opinion typically appears at the beginning of the case An opinion written by

a respected judge may prove particularly influential with other courts The respect accorded to a judge may also be diminished if his or her decisions have frequently been reversed by appellate courts

Outline

The full, unedited cases in legal reporters typically begin with a list of numbered paragraphs or head notes that outline the main legal points in the case There is also a summary of the case and of the decisions of other courts that have heard the case These outlines have been omitted from the edited cases reprinted in this book

Judicial Opinion

The judge’s legal discussion is referred to as the opinion, judgment, or decision The opinion is usually divided into history, facts, and law These component parts are not always neatly distinguished, and you may have to organize the material in your mind as you read the case

History

The initial portion of a case typically provides a summary of the decisions of the lower courts that previously ered the case and the statutes involved

Each case is based on a set of facts that present a question to be answered by the judge This question, for instance, may involve whether a defendant acted in self-defense or whether an individual cleaning his or her rifle intention-

ally or accidentally killed a friend This question is termed the issue The challenge is to separate the relevant from the

irrelevant facts A relevant fact is a fact that assists in establishing the existence or nonexistence of a material fact or

element of the crime that the government is required to prove beyond a reasonable doubt at trial For instance, in the gun example, whether the defendant possessed a motive to kill the victim would be relevant in establishing the mate-rial element of whether the defendant possessed a specific intent to kill

Judges typically rely on precedents or the holdings of other courts Precedent or “stare decisis et no quieta movere” literally translates as “to stand by precedent and to stand by settled points.” The court may follow a precedent

or point out that the case at hand should be distinguished from the precedent and calls for a different rule, which is called a distinguishing precedent.

Appellate courts are typically composed of a multiple judge panel consisting of three or more judges, depending on the level of the court The judges typically meet and vote on a case and issue a majority opinion, which is recognized as the holding in the case Judges in the majority may choose to write a concurring opinion

supporting the majority, which is typically based on slightly different grounds On occasion, a majority of judges agree on the outcome of a case but are unable to reach a consensus on the reasoning In these instances there

is typically a plurality opinion as well as one or more concurring opinions In cases in which a court issues a plurality opinion, the decisions of the various judges in the majority must be closely examined to determine the precise holding of the case You may encounter a per curiam opinion This is an opinion that is authored by all the judges on the court

A judge in the minority has the discretion to write a dissenting opinion Other judges in the minority may also issue separate opinions or join the dissenting opinion of another judge In those instances in which a court is closely divided, the dissenting opinion with the passage of time may come to reflect the view of a majority of the members

of the court The dissent may also influence the majority opinion The judges in the majority may feel compelled to answer the claims of the dissent or to compromise in order to attract judges who may be sympathetic to the dissent.You should keep in mind that cases carry different degrees of authority The decisions of the Ohio Supreme Court possess binding authority on lower courts within Ohio The decision of a lower-level Ohio court that fails to follow precedent will likely be appealed by the losing party and reversed by the appellate court The decisions of the Ohio Supreme Court, however, are not binding on lower courts outside of Ohio, but may be considered by these other tribu-nals to possess persuasive authority Of course, precedents are not written in stone, and courts will typically adjust the law to meet new challenges

As you read the edited cases reprinted in this textbook, you will notice that the cases are divided into various sections The

“facts” of the case and the “issue” to be decided by the court are typically followed by the court’s “reasoning” or justification and

“holding” or decision A number of questions appear at the end of the case to help you understand the opinion.

Briefing a Case

Your instructor may ask you to brief or summarize the main points of the cases reprinted in this textbook A student

brief is a concise, shorthand written description of the case and is intended to assist you in understanding and organizing the material and in preparing for class and examinations A brief generally includes several standard features These, of

course, are only broad guidelines, and there are differing opinions on the proper form of a brief Bear in mind that a particular case that you are reading may not be easily reduced to a standard format

1 The Name of the Case and the Year the Case Was Decided The name of the case will help you in organizing your

class notes Including the year of decision places the case in historical context and alerts you to the possibility that an older decision may have been revised in light of modern circumstances

2. The State or Federal Court Deciding the Case and the Judge Writing the Decision This will assist you in determining

the place of the court in the judicial hierarchy and whether the decision constitutes a precedent to be followed

by lower-level courts

3. Facts Write down the relevant facts You should think of this as a story that has a factual beginning and sion The best approach is to put the facts into your own words Pay particular attention to

conclu-a the background facts leading to the defendant’s criminal conduct;

b the defendant’s criminal act, intent, and motives; and

c the relevant facts as distinguished from the irrelevant facts

4. Criminal Charge Identify the crime with which the defendant is charged and the text of the relevant criminal

statute

5. The Issue That the Court Is Addressing in the Case This is customarily in the form of a question in the brief and

typically is introduced by the word “whether.” For instance, the issue might be “whether section 187 of the California criminal code punishing the unlawful killing of a human being includes the death of a fetus.”

6. Holding Write down the legal principle formulated by the court to answer the question posed by the issue This

requires only a statement that the “California Supreme Court ruled that section 187 does not include a fetus.”

7. Reasoning State the reasons that the court provides for the holding Note the key precedents the court cites and

relies on in reaching its decision Ask yourself whether the court’s reasoning is logical and persuasive

8 Disposition An appellate court may affirm and uphold the decision of a lower court or reverse the lower court judgment In addition, a lower court’s decision may be reversed in part and affirmed in part Lastly the appellate court may reverse the lower court and remand or return the case for additional judicial action Take the time to

understand the precise impact of the court decision

9. Concurring and Dissenting Opinions Note the arguments offered by judges in concurring and dissenting

opinions

10 Public Policy and Psychology Consider the impact of the decision on society and the criminal justice system

In considering a court decision, do not overlook the psychological, social, and political factors that may have affected the judge’s decision

11. Personal Opinion Sketch your own judicial opinion and note whether you agree with the holding of the case

and the reasoning of the court

Approaching the Case

You will most likely develop a personal approach to reading and briefing cases You might want to keep the following points in mind:

Skim the case

• This will enable you to develop a sense of the issue, facts, and holding of the case

Read the case slowly a second time.

• You may find it helpful in the beginning to read the case out loud and write notes in the margin

Write down the relevant facts in your own words.

•

Identify the relevant facts,

• issues, reasoning, and holding You should not merely mechanically copy the language of the case Most instructors suggest that you express the material in your own words in order to improve your under-

standing You should pay careful attention to the legal language For instance, there is a significant difference between a statute that provides that an individual who “reasonably believes” that he or she is being attacked is entitled to self-defense, and a statute that provides that an individual who “personally believes” that he or she

is being attacked is entitled to self-defense The first is an objective test measured by a “reasonable person,” and the second is a “subjective test” measured by the victim’s personal perception Can you explain the difference? You should incorporate legal terminology into your brief The law, like tennis or music, possesses a distinctive vocabulary that is used to express and communicate ideas

Consult the glossary or a law dictionary for the definition of unfamiliar legal terms, and write down questions that you

•

may have concerning the case.

The brief should be precise and limited to essential points You should bring the brief to class and compare your analysis to

•

the instructor’s Modify the brief to reflect the class discussion, and provide space for insights developed in class Consider that each case is commonly thought of as “standing for a legal proposition.”

write the legal rule contained in the case as a “banner” across the first page of the brief

Consider why the case is included in the textbook and how the case fits into the general topic covered in the chapter

•

Remain an active and critical learner, and think about the material you are reading You should also consider how

the case relates to what you learned earlier in the course Bring a critical perspective to reading the case, and resist mechanically accepting the court’s judgment Keep in mind that there are at least two parties involved

in a case, each of whom may have a persuasive argument Most important, remember that briefing is a ing tool; it should not be so time consuming that you fail to spend time understanding and reflecting on the material

learn-Consider how the case may relate to other areas you have studied.

concerning criminal intent, causality, and conspiracy Thinking broadly about a case will help you integrate and understand criminal law

Outline the material.

• Some instructors may suggest that you develop an outline of the material covered in class This can be used to assist you in preparing for examinations

Locating Cases

The names of the cases are followed by a set of numbers and alphabetical abbreviations These abbreviations refer to various legal reporters in which the cases are published This is useful in the event that you want to read an unedited version in the library An increasing number of cases are also available online The rules of citation are fairly technical and are of immediate concern only to practicing attorneys The following discussion presents the standard approach to

citation used by lawyers Those of you interested in additional detail should consult The Bluebook: A Uniform System of Citation, 18th edition (Cambridge, MA: Harvard Law Review Association, 2005).

The first number you encounter is the volume in which the case appears This is followed by the abbreviation of the reporter and by the page number and year of the decision State cases are available in “regional reporters” that contain appellate decisions of courts in various geographic areas of the United States These volumes are cited in accordance with standard abbreviations: Atlantic (A.), Northeast (N.E.), Pacific (P.), Southeast (S.E.), South (S.), and Southwest (S.W.) The large number of cases decided has necessitated the organization of these reporters into various “series” (e.g., P.2d and P.3d)

Individual states also have their own reporter systems containing the decisions of intermediate appellate courts and state supreme courts Decisions of the Nebraska Supreme Court appear in the Northwest Reporter (N.W or N.W.2d)

as well as in the Nebraska Reports (Neb.) The decisions of the Nebraska Court of Appeals are reprinted in Nebraska

Court of Appeals (Neb Ct App.) These decisions are usually cited to the Northwest Reporter, for example, Nebraska v Metzger, 319 N.W.2d 459 (Neb 1982) New York and California cases appear in state and regional reporters as well as in

their own national reporter

The federal court reporters reprint the published opinions of federal trials as well as appellate courts District court (trial) opinions appear in the Federal Supplement Reporter (F.Supp) and appellate court opinions are reprinted in the Federal Reporter (F.), both of which are printed in several series (F.Supp.2d; F.2d and F.3d) These citations also provide the name of the federal court that decided the case The Second Court of Appeals in New York, for instance, is cited

as United States v MacDonald, 531 F.2d 196 (2nd Cir 1976) The standard citation for U.S Supreme Court decisions is the United States Report (U.S.), for example, Papachristou v Jacksonville, 405 U.S 156 (1971) This is the official version

issued by the Supreme Court; the decisions are also available in two privately published reporters, the Supreme Court Reporter (S Ct.) and Lawyers edition (L Ed.)

There is a growing trend for cases to appear online in commercial electronic databases States are also beginning to adopt “public domain citation formats” for newly decided cases that appear on state court Web pages These are cited

in accordance with the rules established by the state judiciary The standard format includes the case name, the year

of decision, the state’s two-digit postal abbreviation, the abbreviation of the court in the event that this is not a state supreme court decision, the number assigned to the case, and the paragraph number A parallel citation to the relevant

regional reporter is also provided The Bluebook provides examples of this format The following example is for a state supreme court case: Gregory v Class, 1998 SD 106, ¶ 3, 54 N.W.2d 873, 875.

obiter dicta

oral argumentper curiampersuasive authoritypetitioner

plurality opinionprecedentreasoningrelevantrespondentSocratic method

stare decisis

trial de novotrial transcriptwrit of certiorari

21

Constitutional Limitations

Was the defendant discriminated against based on gender?

Wright, six feet tall and weighing 216 pounds, beat and

kicked his wife Wendy on the evening of February 16, 1999

Her injuries were so severe that two of her ribs were fractured

and her spleen had to be removed Wright was indicted for

criminal domestic violence of a high and aggravated nature

The aggravating factors alleged in the indictment were “a

difference in the sexes of the victim and the defendant” and that “the defendant did inflict serious bodily harm upon the victim by kicking her in the mid-section requiring her to seek medical attention.” Wright contends the judge’s charge on the aggravating circumstance of a “difference in the sexes” violated his right to “equal protection.”

Core Concepts and Summary Statements

Introduction

The United States is a constitutional

democracy with limited powers The

authority of the state and federal

governments to enact criminal statutes

is limited by various constitutional

provisions

The Rule of Legality

The common law rule of legality

provides that an individual may be

criminally punished only for an act that

was condemned in a statute at the time

it was committed

Bills of Attainder and Ex Post

Facto Laws

Article I, Sections 9 and 10 of the U.S

Constitution prohibit bills of attainder

and ex post facto laws A bill of attainder

is a legislative act that punishes an

identifiable individual or group of individuals without the benefit of trial

An ex post facto law is legislation that

punishes an act that was not subject

to a criminal penalty at the time it was committed

Statutory Clarity

The Due Process Clause of the U.S

Constitution requires that statutes clearly inform individuals of the acts that are prohibited and establish clear, definite, and certain standards that limit the discretion of law enforcement officials A statute that fails to provide sufficient clarity is “void for vagueness.”

Equal Protection

The Fifth and Fourteenth Amendments

to the U.S Constitution provide for the equal protection of the law This requires that legislation that singles

out a group of individuals for legal regulation must be reasonably related to the advancement of a constitutionally permissible objective Racial, religious, and ethnic classifications, however, must satisfy a demanding strict scrutiny test Classifications on gender must meet an

“intermediate scrutiny test.”

Freedom of Speech

The First Amendment to the U.S

Constitution guarantees the right to freedom of expression Speech, however, may be limited on the grounds that it constitutes an incitement to riot, threat, fighting words, or obscenity

Privacy

The U.S Constitution and various state constitutions provide for a right to privacy that protects intimate personal activities from criminal punishment

In the American democratic system, various constitutional provisions limit the power of the federal and state governments to enact criminal statutes For instance, a statute prohibiting stu-dents from criticizing the government during a classroom discussion would likely violate the First Amendment to the U.S Constitution A law punishing individuals engaging in “unprotected” sexual activity, however socially desirable, may unconstitutionally violate the right to privacy.Why did the framers create a constitutional democracy, a system of government based on

a constitution that limits the powers of the government? The founding fathers were profoundly influenced by the harshness of British colonial rule and drafted a constitution designed to protect the rights of the individual against the tyrannical tendencies of government They wanted to ensure that the police could not freely break down doors and search homes The framers were also sufficiently wise to realize that individuals required constitutional safeguards against the political passions and intolerance of democratic majorities

The limitations on government power reflect the framers’ belief that individuals possess ral and inalienable rights, and that these rights may only be restricted when absolutely necessary

natu-to ensure social order and stability The stress on individual freedom was also practical The ers believed that the fledgling new American democracy would prosper and develop by freeing individuals to passionately pursue their hopes and dreams

fram-At the same time, the framers were not wide-eyed idealists They fully appreciated that vidual rights and liberties must be balanced against the need for social order and stability The striking of this delicate balance is not a scientific process A review of the historical record indicates that, at times, the emphasis has been placed on the control of crime and, at other times, stress has been placed on individual rights

indi-Chapter 2 describes the core constitutional limits on the criminal law and examines the ance between order and individual rights Consider the costs and benefits of constitutionally limit-ing the government’s authority to enact criminal statutes Do you believe that greater importance should be placed on guaranteeing order or on protecting rights? You should keep the constitu-tional limitations discussed in this chapter in mind as you read the cases in subsequent chapters The topics covered in the chapter are as follows:

bal-The first principle of American jurisprudence is the rule of legality

Equal protection

{ {

Freedom of speech

{ {

Privacy

{ {

We will discuss an additional constitutional constraint, the Eighth Amendment prohibition

on cruel and unusual punishment, in Chapter 3

The Rule of Legality

The rule of legality has been characterized as “the first principle of American criminal law and jurisprudence.”1 This principle was developed by common law judges and is interpreted today

to mean that an individual may not be criminally punished for an act that was not clearly demned in a statute prior to the time that the individual committed the act.2 The doctrine of legality is nicely summarized in the Latin expression nullum crimen sine lege, nulla poena

con-sine lege, meaning “no crime without law, no punishment without law.” The doctrine of legality

is reflected in two constitutional principles governing criminal statutes:

the constitutional prohibition on bills of attainder and

the constitutional requirement of statutory clarity

•

Bills of Attainder and Ex Post Facto Laws

Article I, Sections 9 and 10 of the U.S Constitution prohibit state and federal legislatures from

passing bills of attainder and ex post facto laws James Madison characterized these

provi-sions as a “bulwark in favor of personal security and personal rights.”3

Bills of Attainder

A bill of attainder is a legislative act that punishes an individual or a group of persons without

the benefit of a trial The constitutional prohibition of bills of attainder was intended to safeguard

Americans from the type of arbitrary punishments that the English Parliament directed against

opponents of the Crown The Parliament disregarded the legal process and directly ordered that

dissidents should be imprisoned, executed, or banished and forfeit their property.4 The prohibition

of a bill of attainder was successfully invoked in 1946 by members of the American Communist

Party, who were excluded by Congress from working for the federal government.5

Ex Post Facto Laws

Alexander Hamilton explained that the constitutional prohibition on ex post facto laws was vital

because “subjecting of men to punishment for things which, when they were done were breaches

of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and

most formidable instrument of tyranny.”6 In 1798, Supreme Court Justice Samuel Chase in Calder

v Bull listed four categories of ex post facto laws:7

Every law that makes an action, done before the passing of the law, and was

done, criminal; and punishes such action

Every law that

• aggravates a crime, or makes it greater than it was, when committed.

Every law that

• changes the punishment, and inflicts a greater punishment, than the law annexed

to the crime, when committed

Every law that alters the

• legal rules of evidence, and receives less, or different, testimony,

than the law required at the time of the commission of the offense, in order to convict the

offender.

The constitutional rule against ex post facto laws is based on the familiar interests in providing

individuals notice of criminal conduct and protecting individuals against retroactive “after the

fact” statutes Supreme Court Justice John Paul Stevens noted that all four of Justice Chase’s

cat-egories are “mirror images of one another In each instance, the government refuses, after the fact,

to play by its own rules, altering them in a way that is advantageous only to the State, to facilitate

an easier conviction.”8

In summary, the prohibition on ex post facto laws prevents legislation being applied to acts

committed before the statute went into effect The legislature is free to declare that in the future a

previously innocent act will be a crime Keep in mind that the prohibition on ex post facto laws

is directed against enactments that disadvantage defendants; legislatures are free to retroactively

assist defendants by reducing the punishment for a criminal act

The distinction between bills of attainder and ex post facto laws is summarized as follows:

A bill of attainder punishes a specific individual or specific individuals An

criminalizes an act that was legal at the time the act was committed

A bill of attainder is not limited to criminal punishment and may involve any disadvantage

•

imposed on an individual; ex post facto laws are limited to criminal punishment.

A bill of attainder imposes punishment on an individual without trial An

is enforced in a criminal trial

The Supreme Court and Ex Post Facto Laws

Determining whether a retroactive application of the law violates the prohibition on ex post facto

laws has proven more difficult than might be imagined given the seemingly straightforward nature

of this constitutional ban