Crim in Nutshell Ch.1-3 Flashcards
Generally, in a civil suit, the basic questions are?
“Generally, in a civil suit, the basic questions are (1) how much, if at all, has defendant injured plaintiff, and (2) what remedy or remedies, if any, are appropriate to compensate plaintiff for his loss. In a criminal case, on the other hand, the questions are (1) to what extent, if at all, has defendant injured society, and (2) what sentence, if any, is necessary to punish defendant for his transgressions”
What is Reformation?
“Generally speaking, however, reformation is regarded by criminologists as a worthwhile goal of punishment. The real objection to reformation is simply that it doesn’t work. This observation can be supported by the high degree of recidivism among those who have been imprisoned. Moreover, it can be persuasively argued that the very nature of the prison system runs counter to the goal of reformation. One doesn’t break a criminal of criminal tendencies by requiring him to associate exclusively with other criminals.”
What does the chapter say about restrain?
“That some individuals need to be restrained is hardly a debatable proposition. Even the staunchest advocate of reformation would not contend that a convicted unreformed dangerous criminal ought to be without restraints while he is being reformed. As one court put it: “To permit a man of dangerous criminal tendencies to be in a position where he can give indulgence to such propensities would be a folly which no community should suffer itself to commit, any more than it should allow a wild animal to range at will in the city streets.” C. v. Ritter, 13 Pa.D. & C. 285, 291 (Oyer and Terminer 1930).Although the above quotation overstates the case for restraint (people are imprisoned for committing crimes, not for having “dangerous criminal tendencies”), the thrust of the observation is beyond dispute. There is considerable dispute, however, as to who should be restrained and for how long. For example, a persuasive argument could be made that a community needs more protection from the town bully who constantly picks fights with members of the local citizenry than it needs from one who after years of frustration kills her unfaithful spouse and promptly confesses in a manner which indicates considerable[…]”
What is said about retribution?
“as a legitimate purpose of punishment. Opponents contend that it is barbaric and unfit for a civilized society. Proponents, however, maintain that it is morally right to hate criminals, and to inflict retribution upon them for their misdeeds. Less vigorous proponents of retribution note that in fact people think society should get even with those who commit crimes against it. Thus, regardless of whether retribution is or is not morally justifiable in an ideal world, it is demanded by the citizenry of this world. Furthermore, proponents contend that the availability of institutionalized retribution is necessary to prevent private or personal retribution.A closely related, if not identical, purpose to retribution is expiation. Rather than focusing upon seeking revenge against the criminal, expiation aims at cleansing or purifying society by removing the criminal from its midst.Whether or not one believes that retribution and/or expiation are morally justifiable, the evidence seems to show that they are significant factors in allocating punishment. Cliches such as “the criminal owes a debt to society” and “make the punishment fit the crime” are essentially retributive in nature. Perhaps the most realistic hope for those opposed to retributive punishment is not that it be eliminated entirely[…]”
what types of deterrences are there?
individual deterrance & general deterrance
What is individual deterrance ?
“The concept of individual deterrence, like reformation, aims at precluding further criminal activity by the particular defendant who is before the court. Unlike reformation, it emphasizes the negative. Specifically, it says to a convicted criminal: “This is what happens to you when you commit a crime. Remember that when you get out of prison.” It can be argued that to some extent, this is at cross-purposes with reformation, inasmuch as poor prison conditions are conducive to individual deterrence, but inconsistent with a meaningful rehabilitative program. It is possible, of course, to run a prison which is sufficiently unpleasant to discourage return visits, but which nevertheless has a meaningful rehabilitative program.”
What is general deterrence ?
“The theory of general deterrence is that punitive sanctions which are imposed upon one convicted criminal will deter others with similar propensities from engaging in such conduct.Critics of this position maintain that most prospective criminal defendants are unaware of the sentences that courts in fact impose, and that even those that are aware do not tend to be the type of people who carefully calculate possible loss as well as potential gain. Furthermore, there is evidence that factors apart from the law, such as religious indoctrination or peer expectations tend to influence 9a person’s behavior to a greater extent than the criminal law. Finally, opponents of the deterrent theory point to the actual crime rate to show how ineffective deterrence really is. The classic illustration from earlier times is the number of pickpockets who were said to have preyed upon people who had come to watch other pickpockets being hanged.”
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What was the judicial discretion in sentencing ?
“t one time in our Nation’s history, judges had virtually unlimited sentencing discretion. Thus, if a robbery statute provided for incarceration of from one to thirty years, it was exclusively within the unfettered discretion of the trial judge to assess the penalty. Although this system had the advantage of allowing maximum sentencing flexibility, it has several disadvantages, including lack of predictability and excessive variation from judge to judge. For these reasons, several States and the Federal Government, in varying degrees, have tightened judicial discretion.”
What does the chapter say about disproportionality?
“The Eighth Amendment to the United States Constitution forbids cruel and unusual punishment. In Weems v. U.S., 217 U.S. 349 (1910), the Supreme Court held that punishment which is cruelly disproportionate to the crime offends this clause. Weems so categorized a sentence of fifteen years of hard labor in leg irons for a public official who falsified a minor document.”
How is homicide divided into?
“ Later, they were divided into murder (the more heinous) and manslaughter. Still later, legislatures divided murder into degrees, and manslaughter into voluntary and involuntary categories.”
what is malice aforethought?
“The legal term of art employed to distinguish murder from manslaughter”
What are the kinds of killings which courts have characterized as heinous enough for murder (and therefore with “Malice aforethought”)?
“intentional killings except those that are lawful (for example those committed in self-defense, see Ch. 6 infra) or mitigated to manslaughter (for example those committed in the heat of passion, see §2.04 infra);(2)killings in which the defendant intentionally inflicts serious bodily harm (or in some states, intentionally perpetrates an assault with a deadly weapon) subject to the exceptions noted above (see §2.03 infra);(3)killings resulting from outrageously reckless conduct (see §2.08 infra);(4)certain killings arising out of the perpetration of particular felonies (see §2.09 infra)”
what is willful?
“Willful,” as used in this type of statute, means a specific intent to kill. Thus, an intent to scare, to wound, or even to cause grievous bodily harm will not suffice. On the other hand a jury is permitted to infer intent from the surrounding circumstances. Thus, if the State proves beyond a reasonable doubt that defendant aimed a loaded revolver at her victim’s body and hit her victim in the heart killing him instantly, the jury may (but need not) infer that defendant intended to kill her victim even if defendant contends that she only intended to scare or wound him but was a poor shot.”
what is deliberation?
“Deliberation” is seldom defined separately from the other terms in this type of statute. To the extent that it adds anything, however, it appears to require that the defendant act in a cool state of blood. Thus, when a defendant is dominated by passion or fear, it may be impossible for him to deliberate to the degree necessary to render him a first degree murderer.”
what is premeditated?
“By far the most difficult of the concepts in this formulation of first degree murder is premeditation. The term itself simply means “thought of beforehand.” The real problem lies in ascertaining how much beforehand the thought must have been formulated. The classic judicial language is that the time must be “appreciable.” But this could merely mean capable of being appreciated, which can be a matter of seconds. For example, in S. v. Misenhimer, 282 S.E.2d 791 (N.C. 1981), the court held that “some period of time, however short, before the actual killing” will suffice. One court went even further, holding that any intentional killing qualified as a wilful, deliberate, and premeditated killing. See C. v. O’Searo, 352 A.2d 30 (Pa. 1976). In response to O’Searo, the Pennsylvania Legislature, which first created the premeditation deliberation formula, now defines “an intentional killing” as first degree murder (although the Legislature [somewhat circularly] defined intentional as wilful, deliberate, and premeditated).”
