Criminal Law

Question 1

What is a statute?

Answer 1

A statute is a formal written enactment of law by a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy.

Question 2

What does the Cf. K.S.A. § 21-5103 state?

Answer 2

“No conducts constitutes a crime… unless it is made criminal in this code.”

Question 3

What is the “common law?”

Answer 3

It refers to judge-made law. Often the reference is to early common law, i.e., English judge-made law before American independence.

Question 4

Define “voluntary manslaughter.”

Answer 4

Knowingly killing a human being committed upon a sudden quarrel or in the heat of passion.

Question 5

What are the 3 sources of criminal law?

Answer 5

1. Statutes
2. Case Law
3. Model Penal Code

Question 6

Given that no jurisdictions have officially adopted the Model Penal Code in its entirety, why do casebooks and classes focus on it so much?

Answer 6

It has been highly influential in the formation of jurisdiction’s criminal law. It is also used as persuasive authority and a reference point for present cases.

Question 7

What is the absurd results exceptions?

Answer 7

1. Typically adopted by “strict textualists.”

2. Follow the text unless doing so would produce a result that no reasonable person would endorse.

Question 8

What is legislative history?

Answer 8

The formal record of the legislatures process by which they enacted a statute.
Ex: changes in wording from beginning to end, formal House/Senate reports, comments by legislators during debates, or signing statements by POTUS/Governor.

Question 9

What is the rule of lenity?

Answer 9

The rule of lenity is to resolve ambiguities in the law in favor of the accused.

Question 10

What is the Fair Notice Rationale?

Answer 10

• Persons must have fair notice that conduct is criminal when they engage in it.
• ex: prohibition against ex post facto laws.
• This is used as the rationale to justify the rule of lenity.

Question 11

What is Inclusio unius est exclusio alterius?

Answer 11

• Mention of specific items excludes those not mentioned
• “includes but is not limited to”
• This helps become a catch-all in statutory text

Question 12

What is ejusdem generis?

Answer 12

• When a statute contains a list and a general term, the general term encompasses only those things like those on the list.
• a way to get things not on the list to be excluded
• car, truck, automobile v. motor boat

Question 13

What are the 5 sources of statutory meaning?

Answer 13

1. Text
2. Case law, ex: common law
3. Legislative History
4. Legislative Purpose
5. Canons of Statutory Construction

Question 14

Describe the Traditional/Eclectic model of statutory interpretation.

Answer 14

This is followed by most judges/scholars who look to the text first but if there are ambiguities in the text - then consult other sources; legislative history, statutory purpose, canons.

Question 15

Describe Textualism’s method of statutory interpretation.

Answer 15

• The text is primary; some allow the “absurd results” exception.
• Justice Scalia is known for this method.
• Canons are useful when they reflect common sense rules regarding the meaning of the text or are well-settled rules legislatures are familiar with.
• Legislative history & statutory purpose are (almost always) irrelevant.

Question 16

Describe the Legal Process School of thought of statutory interpretation.

Answer 16

• Similar to the traditional/eclectic model except heavy reliance is placed on statutory purpose.

Question 17

Arguments for Textualism

Answer 17

• limits judicial discretion
• better promotes predictability and stability
• better supports democracy

Question 18

Arguments for Traditional/Eclectic

Answer 18

• Better enables judges to rationalize the law by avoiding questionable/absurd results,
  enhancing the ability of a statute to achieve its goals, and making the law more coherent as a whole.
• Facilitates a more cooperative and harmonious relationship between legislative & judicial branches.

Question 19

What is majority law?

Answer 19

• Principles of criminal law applicable in a majority of modern American jurisdictions.
• For instance, under majority law, an intentional and premeditated killing is treated as first-degree murder.
• This is just another way of saying that in a majority of modern American states, a premeditated killing is first-degree murder.

Question 20

Describe Utilitarianism

Answer 20

• A school of thought by Jeremy Bentham and J.S. Mill that is forward-looking and answers questions based off of benefits and costs.
• Compare benefits and costs of one course of action versus benefits and costs of alternatives.
• Criminal punishment is justified if does better than alternatives in producing future happiness or utility.

Question 21

What are the 4 benefits of punishment according to Utilitarianism?

Answer 21

1. Specific deterrence
2. General deterrence
3. Incapacitation
4. Rehabilitation

Question 22

Define Specific Deterrence

Answer 22

The offender’s punishment deters him/her.

Question 23

Define General Deterrence

Answer 23

The offender’s punishment deters others who are similarly situated.

Question 24

Define Incapacitation

Answer 24

The offender is “warehoused” and removed from society thereby preventing him/her from committing future criminal acts.

Question 25

Define Rehabilitation

Answer 25

Refers to the punishment’s ability to reform the criminal so that he/she does not commit future offenses.

Question 26

Describe Retributivism

Answer 26

• A school of thought developed by Immanuel Kant that is backward-looking.
• Views the purposes of criminal punishment in terms of a notion of justice that is largely, if not entirely, independent of future consequences.
• Punishment serves as a matter of rational justice and must be proportionate to the wrong.
• Respect for the rational autonomy of a person is at the heart of this philosophy.

Question 27

Define the Retributivist’s 4 principles of criminal punishment.

Answer 27

1. The criminal punishment must be proportionate to the gravity of the offender’s wrong.
2. The gravity of the wrong depends partly on the degree to which the offender has infringed upon the rational autonomy of another person.
3. The punishment that is justly deserved depends upon the degree to which the offender is responsible for infringing on another’s autonomy.
4. The gravity of the wrong depends partly on the offender’s general character.