Criminal Law Outline

1) Whats a crime? a) Act or omission and its accompanying state of mind which, if duty is shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community i) This means a crime is more than something thats punished. (1) It deals with a social harm that is so morally reprehensible, as to be made criminal. b) In studying criminal law, keep in mind: i) How do various jurisdictions define their criminal offenses ii) What are the basic elements common to every crime in the Anglo-American tradition iii) What does the prosecution have to prove in order for the fact finder to find a person guilty iv) What are the elements of particular crimes, i.e., murder, rape, burglary. v) What distinguishes first degree from second degree murder vi) What level of punishment does the person who has committed a crime deserve 2) Sources of criminal law a) Common law i) Judge made law ii) Most criminal law matters covered by statute; however, the meaning given these statutes is often determined by reference to the common law c b) Statutory codes i) Criminal law largely governed by statutes ii) Criminal codes that define general principles (1) Jurisdictions without criminal codes adhere to statutes c) Model penal code i) Drafted by American Law Institute in 1962 ii) Not directly enforceable n any state; however, half the states have enacted criminal statutes drawing heavily from the MPC wording/concepts 3) Why do we punish? (Metzger stresses this point) a) Deterrence i) General deterrence (1) Punishment is bad enough to deter general population from committing crime ii) Specific deterrence (1) Punishment is bad enough to deter offender from committing the crime ever again iii) Incapacitation

(1) Incarcerate/restrain offender to ensure incapacitated from committing additional crimes iv) Rehabilitation (1) Give the offender treatment to change behavior; this is done by not scaring the offender into changing behavior (specific deterrence) but by reforming the offenders motivations v) Retribution (1) Eye for an eye; getting just desserts for committing a crime (2) Communicative retribution: Where the retribution communicates values. vi) Education (aka signaling) (1) Signaling/sending messages about societal values to society in general; educate people about what is wrong (functions of the law: tell people how to act/how to feel) b) Theories of punishment i) Utilitarianism Jeremy Bentham (1) Form of consequentialism; justification of a practice depends only on its consequences (2) Punishment is justifiable if, but only if, it is expected to result in a reduction of crime. Punishment must be proportional to the crime, i.e., that punishment be inflicted in the amount required (but no more than is required) to satisfy utilitarian crime prevention goals. (a) Purpose of all laws is to maximize net happiness of society (3) See: general deterrence, specific deterrence, rehabilitation ii) Retributivism Immanuel Kant (1) Form of nonconsequentialism; punishment is justified when it is deserved; it is deserved when the wrongdoer freely chooses to violate societys rules (2) Punishment given in proportion to culpable wrongdoing. Some people are more moral than others. iii) NOTE: look at the micro to macro messages inherent in punishments c) Malum in se i) Wrong in and of itself; Crimes that are inherently dangerous, bad, or immoral in themselves d) Malum Prohibitum i) Law says its wrong; (1) Prohibition is necessary to regulate the general welfare e) NOTE: some things slide from malum in se to malum prohibitum and vice versa

i) Smoking marijuana ii) Drunk driving f) Cases i) Regina v. Dudley (1884) pg. 7-11 (1) Two seamen were charged with murder (followed by eating) a fellow seamen when they were all lost at sea. (a) They justified their behavior as a necessity (b) Underlying moral implications: (i) Sacrifice one for all; survival of weakest (quality of lifefamily, etc.; status/obligations; eat the bigger person?); should person being sacrificed have a say; wait for person to die; volunteer (2) Rule: Killing is only justified in self defense; temptation is no defense for murder; its not murder if it is justified, however, necessity is not a justification or a defense for murder (3) Held: The killing of Parker under the circumstances (of starvation while lost at sea) by Dudley and Stephens was felony and murder (a) Reasoning: Sending a moral message; it is never okay to play good; worry the impact an acquittal will have on future behavior; nationalism (b) Sentenced to death, but a pardon was given. *We can surmise there is communal discomfort to this being murder and warranting the death penalty ii) People v. Suitte (1982) pg. 11-19 (1) Charged with criminal possession of a weapon in the forth degree. carried an unlicensed gun in the state of New York. Gun legislation meant for general deterrence (a) Pled guilty and sentenced to 30 days in jail (i) Hes a family man who probably didnt register the gun because he didnt find it intrinsically immoral to not do so 1. (malum in se vs. malum prohibitum) (2) Rule: A person is guilty of violating the gun law if their gun is unlicensed and will be sentenced accordingly, even if they are a first time offender (3) Held: Possession of an unlicensed gun in New York is against the law, even for first time offenders; sentencing should be administered (a) Reasoning: This is bigger than Suite; because this is general deterrence, the aim is to stop others from carrying unlicensed guns by punishing offenders; warning of what will happen; someone could steal an unlicensed gun and use

it; law enforcement would be incapable of tracing it; Suite isnt immune to legislature to get tough on crime; the gun law provides no blanket exceptions of first offenders (b) Sentenced to 30 days in jail (i) Dissent: points out issues with rules/predictors of how the law is moving; questions if punishing Suitte by sending him to jail appropriate, after all, is it proper exercise to jail a first time offender who poses no serious threat to the community iii) Cases looking at the proportionality of punishment (1) Ewing v. California (2003) pg. 103-111 (a) Held: not a violation of the Eighth Amendment where Californias three strikes law was used to produce a 25-years-to-life sentence for a repeat offender who stole $1200 (i) Problem wasnt that D stole $1200 worth of merchandise but that he had done so AFTER having been convicted of at least two violent/serious felonies (2) Other cases: (a) Solem v. Helm: set out three factors to determine whether a sentence is disproportionate as to violate the Eighth Amendment (i) The gravity of the offense compared with the harshness of the penalty (ii) The sentences imposed on other criminals in the same jurisdiction (iii) The sentences imposed for the same crime in other jurisdictions 1. Using these factors, Solen had struck down as disproportionate a life sentence without possibility of parole for a seventh nonviolent felony, which was a bad check for $100 (b) Rummel v. Estelle (it did not violate the Eighth Amendment for a State to sentence a three-time offender to life in prison with the possibility of parole) (c) Harmelin v. Michigan (sentence of life in prison without the possibility of parole for a first time offender convicted of possession of 672 grams of cocaine was not so grossly disproportionate that it violated the Eighth Amendment) 4) Statutory interpretation a) How to read statutes i) Read statute ii) Definitions iii) Cross reference

iv) Break into component parts v) Find essential components b) Look at three important pieces to statutory constructions i) Plain language ii) Canons of construction (1) noscitur a sociis: meaning of doubtful terms or phrases may be determined by reference to their relationship with other associated words or phrases (2) ejusdem generis: where general words follow a specific enumeration of persons or things, the general words should be limited to persons or things similar to those specifically enumerated iii) Legislative intent/history (1) Policy analysis (2) Broad vs. narrow interpretation c) Problem with statutes is that they can be ambiguous or hard to interpret i) Cases (1) United States v. Dauray (a) Held: wording of the statute was ambiguous as applied herein (i) Statute punishes the possession of matter, three or more in number, which contain any visual depiction or minors engaging in sexually explicit conduct. 1. However, Dauray argues that the statute is ambiguous as applied to possession of three or more pictures and that the rule of lenity should there fore apply to resolve this ambiguity in his favor d) Rule of lenity: Criminal statutes must be strictly construed against the prosecution: if a statute has two reasonable interpretations, the one that is more favorable to the defendant must be applied i) Better to let ten guilty men go free than to let one sit in jail e) All elements of the statute must be proven beyond a reasonable doubt i) Burden of proof is on the prosecution and the defendant need not make any affirmative proof of innocence 5) Proving Matters a) Government must prove all elements beyond a reasonable doubt b) Defendant must prove affirmative defenses by preponderance of the evidence but on appeal this gets shifted to beyond reasonable doubt c) Circumstantial evidence can get you to this threshold; much stricter scrutiny

d) Government does not have to address all elements of defense, just provide their theory of guilt e) On appeal, court looks at evidence in light most favorable to prosecution f) Defendant can choose either bench or jury trial g) Statistics show that the better the narrative, the more likely you succeed with judges or juries 6) Concurrence of Elements a) The prosecution must prove every single element beyond a reasonable doubt (MPC 1.12) b) Cannot convict unless each element of an offence is proven beyond a reasonable doubt c) In the absence of complete proof, the defendant is assumed to be innocent (not guilty???) 7) Actus Reus a) A voluntary act i) Bodily movement ii) Done consciously iii) Knowing controlling/possession b) Involuntary acts do not constitute actus reus c) Habits, however, are sufficient actus reus d) AR = conduct + attendant circumstances + result e) When mens rea is given in statute, it applies to the conduct and result elements ONLY! Not to the attendant circumstances f) When is omission a voluntary act? i) Special relationship ii) Statute iii) Contract to provide care iv) Voluntary assumption of care v) Creation of peril vi) Duty to control the conduct of another vii) Duty of landowner 8) Mens Rea a) Culpable states of mind b) Define crime by actors intent and not the result c) Same voluntary act, same result, same actus reus, BUT can have different mens rea. d) Mens rea under the MPC

i) Purposely (1) Subjective standard (2) Actor had to have intent or the conscious objective of engaging in conduct; also believes, hopes prays attendant circumstances exist (3) Ex. Ex-wife places bomb on a commercial plane with her ex-husband aboard in order to kill him. She acts purposely toward her husband and killing him. ii) Knowingly (1) Subjective standard (2) Practically certain of the result (3) Ex. Throw a rock in the crowd, youre practically certain youll hit someone opposed to purposely throwing it at someone specific. (4) Ex. Ex-wife places bomb on a commercial plane with her ex-husband aboard in order to kill him. She acts purposely toward her husband and killing him. However, she acts knowingly toward everyone else who is killed. iii) Recklessly (1) Objective/subjective standard (2) Elements (a) Gross deviation (from the standard of care a of a LAW ABIDING person (objective)) (b) Risk (i) Substantial (and) (ii) Unjustifiable (subjective) AND (iii) Conscious (appreciation of the risk) (iv) Disregard (choose to disregard the appreciated risk) (3) Note: need to look at entire act iv) Negligently (1) Objective standard (2) Disregard has to be of the nature and degree that it involves a gross deviation from stands of conduct of a reasonable person (3) Punishes someone because they dont understand/perceive the risk in the first place on their own

(a) Ex.) Child falls and has concussion. Parents think the child is okay because it is up running around playing. Shortly thereafter, the parents tuck child in to go to bed. Child never wakes up (dies in sleep). Parents charged with negligence (i) However, does this stop other parents perceptions of any inherent risk? Not necessarily (4) Does not care about your mental state, only what you should have known; indifference as to the subjective not knowing v) Note: a reasonable person may not abide by the law because he may see it as unreasonable to do so vi) Reckless conduct = behavior vii) Negligent duty of care = awareness (oblivious to risk and conduct) should reasonable people pay attention to this viii) MPC 2.05: (1) So if the statute says negligence is the standard and able to prove anything higher, then done; youve satisfied the burden (a) For some reason, it is sometimes easier to not prove negligence when trying to prove negligence e) It is easiest to prove recklessness. (Technically, negligence has the lowest and easiest burden, but in the PKR paradigm, negligence has to fall away because a person cannot be negligent and reckless at the same time. Logically, cannot perceive a risk and not perceive it at the same time.) If a higher mens rea is proven, so is the lower. (Ex. If you prove purposely, youve proven knowingly and recklessly.) 9) Willful blindness a) Avoiding knowledge is knowledge b) Conscious disregard of knowledge is recklessness c) Intent i) Objective, natural, and probable causes of action ii) Two types of intent (1) Requisite: if it is his conscious object or purpose to cause a certain result or to engage in certain prohibited conduct (2) Virtual certainty: knowing ones action will cause social harm 10) Strict liability a) Legislature eliminates mens rea. b) Actor is liable regardless of mens rea. c) Doesnt matter if one is mistaken about the attendant circumstance.

d) Crimes that we want people to be on guard against because they will be found guilty regardless of intent e) Public welfare offenses f) Statute not derived from common law g) Penalty is generally small h) Ex. Pharmacists documentation, sale or manufacture of spoiled food, traffic offenses i) Statutory rape is in its own category for punishment the harshness of the punishment makes it a huge exception j) With the MPC i) If the statue deliberately removes the mens rea, then it is a violation/fine, or recklessness, knowingly, and purposefully must be read into it. 11) Mistake a) For a mistake to be a defense, it has to vitiate the mens rea b) Mistake of fact i) The absence of intent ii) A theory of defense as long as the theory is in some way plausible. Not a freestanding defense as long as the theory is in some way plausible (1) Not a defense is the defendant would be guilty of another offense had the situation been as he supposed c) Mistake of law: think the law does not apply to your action 12) Causation a) Concurrence between the actus reus and the result i) Ex. Lets say A intended to wound B slightly. Some jurisdictions say that because A intended to wound B at all, A took the risk that the wound could be greater than slight; therefore, A caused the result. b) Attenuation: how close is the conduct to causing the result c) Have to have concurrence through each step of the causal chain d) Common law: i) Actual (cause-in-fact)but for your actions the crime would not have occurred ii) Accelerating the harm of someone else still makes someone the but for cause; a person is liable for causing the death at a particular point in time before the victim otherwise would have died

iii) Legal (proximate cause): enough of a cause to warrant punishment (1) May be more than one cause of a particular event (2) Were you enough of a cause that you care criminal liability even though there are intervening cause (a) If there is an intervening cause, it breaks the causal chain of connection (i) No longer have the requisite concurrence for a conviction (b) Types of intervening causation: (i) Dependent: depending on your voluntary action 1. Ex. Pot hole on the other side of the street, youre on wrong side of street because youre drunk (ii) Independent: depends on foreseeability 1. Ex. Pot hole on your side of the street where you live and you see it every day, so it is foreseeable 2. However, if there is an earthquake and you hit a crack made by it, youre not liable unless the intervening independent cause is foreseeable to you Notes on causation: when the intervening cause breaks the causal chain so you dont have concurrence between act and result. Intervening causes will relieve defendant of culpability only if intervening response was not reasonably foreseeable. Independent intervening acts destroys causal connection between defendants ant and victims injury, relieving them of culpability. Dependent intervening acts are normal and reasonably foreseeable results of defendants original act and does not relieve them of culpability. If you are a direct cause you are also the proximate cause. The substantial factor test asks whether the conduct is a substantial factor in getting the result, was it foreseeable, was it a natural and probably cause of the conduct, and whether it is natural that the conduct usually causes this result even if there are other things. e) MPC: i) But for cause is the starting point (actual cause aka cause-in-fact) ii) Leaves mens rea to be defined by act and result of the act (1) Like in common law foreseeability (a) Subjective (have to hope the attendant circumstances exist) (i) Cause in purpose: you have to intend to cause the result (ii) Causation in knowledge: practically certain that your conduct will cause that result

(2) Element of causation only if the result is within the risk of which you were or should have been aware (a) Objective (i) Reckless/Negligent: compare what actually occurred to what was risked (3) As long as things are not so remote, this holds. 13) Homicide a) Common law i) Homicide: unlawful killing ii) Murder: unlawful killing with malice aforethought iii) Manslaughter: unlawful killing without malice aforethought (1) Keep in mind that malice is a term of art meaning intentional or reckless intent to kill or cause grievous bodily injury iv) 1st degree: willful, deliberate, premeditated (in cold blood); this also includes felony murder v) 2nd degree: intentional killing, depraved heart murder (extremely reckless) vi) Voluntary manslaughter: reasonable provocation; also known as heat of passion murder vii) Involuntary manslaughter: reckless killing b) MPC criminal homicide i) Person is guilty of criminal homicide if he purposefully, knowingly, recklessly, or negligently causes the death of another human being is murder, manslaughter, or negligent homicide (a) Murder if done purposely or knowingly (i) Also when done with extreme indifference to human life (b) Manslaughter if recklessly (i) EMED (c) Negligent homicide: if done negligently c) First degree murder (goal and purpose) i) Willful, deliberate, and premeditated murder (1) Premeditation: thinking about killing in advance; before the crime is committed; can happen in the blink of an eye (2) Deliberation: quality of the thinkingcalm, cool, rational. (Or it may be so heated, that some of the crime, may be excused/reduced because there was not the calm thinking present.) (3) Willful: intent to kill

(4) Can be defined as Murder 2nd Degree + Premeditation + Deliberation =Murder 1st Degree ii) Felony murder (1) Death during/resulting of the commission or attempted commission of any felony (2) No mens rea; lacks premeditation (3) If you commit a crime, but in the course of the act, a murder occurs, you are responsible (4) Also, take your victim as the arerob a store and the clerk is an old man who has a heart attack; thats on you (5) Inherently dangerous limitations (a) Is the felony inherently dangerous (abstractly dangerous)? (b) Were the facts dangerous? (6) Causation (a) The felony and death must be close in time and place (continues until felon reaches a place of apparent safety) (b) Causal relationship needed between the felony and death (unrelated accidental deaths dont count) (7) MPC doesnt really have felony murder per se (a) If engaged in felony A, and there is gross recklessness, then the crime will be treated as knowingly/purposely (b) Elevates conduct that would ordinarily just be a felony but the by-product is the death of someone; only applies to murder NOT ATTEMPT d) Second degree murder i) Any intentional (purposeful or knowing) killing other than first-degree murder or voluntary manslaughter (ex. A purposeful killing done while unreasonably in the hear of passion) ii) Intentionally causing serious bodily injury where death, though never intended, results iii) Depraved heart murder (1) Malice may be express or implied (a) Express: where there is manifested a deliberate intention unlawfully to take away a life (b) Implied: when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart

(i) Defendant acted with gross recklessness and extreme indifference to human life, meaning that the defendant realized that his actions created a substantial and unjustifiable risk of death and yet went ahead and committed the actions anyway (c) Under the MPC, the defendant can be convicted regardless of whether or not he acted purposely or knowingly if the act was foreseeable. e) Voluntary manslaughter i) A killing that would otherwise be murder but that is mitigated to manslaughter because it was done upon being reasonably provoked into a sudden heat of passion without cooling off where a reasonable person could not have cooled off (1) Heat of passion murder (a) Adequate provocation (b) The killing must have been in the heat of passion (c) It must have been a sudden heat of passion before a reasonable opportunity for the passion to cool (d) There must have been a causal connection between the provocation, the passion, and the act (e) Note: there is a reasonable man/person standard. It is objective. Society is causing for shifting standards and expectations based on gender of actors and crimes between homosexuals. (Um, change this wording.) Reasonable standard takes into account shock from traumatic injury, extreme grief, and personal situations (i) The reasonable standard takes into account shock from traumatic injury, extreme grief, and personal situations (f) Extreme Mental or Emotional Disturbance (EMED) THIS IS MPC TEST (i) Reasonable explanation or excuse (ii) No provocation or cooling time needed (iii) Reasonable standard: only need reasonable for the emotion (iv) There is no reasonable standard for the action of killing (v) Individual must not have mental disease or defect that rises to the level of insanity or diminished capacity (vi) Must be exposed to an extremely unusual and overwhelming stress (vii) Must have an extreme emotional reaction to I, as a result there is a loss of self-control (g) Involuntary manslaughter: criminal negligence

(i) Gross negligence and sometimes recklessness (ii) A reckless killing (provided that it is not of the special type of recklessness that elevates the crime to depraved heart murder (h) MPC criminal homicide (i) Person is guilty of criminal homicide if he purposefully, knowingly, recklessly, or negligently causes the death of another human being is murder, manslaughter, or negligent homicide 14) Attempts a) Series of actions that result in criminal liability although the crime itself did not happen; must predict future conduct when conduct that is desired is prevented i) What is the rule? How far do you have to go before it is an act? ii) Why are we punishing this? b) Two significant challenges i) Identifying intent ii) Selecting appropriate punishment (do you punish the act or reward the cessation) c) There are two types of attempts that the law treats identically; however, the distinction is important for what type of defenses are available i) Complete attempt: defendant does everything possible to effect the crime but does not cause the result of the particular offense (1) As a defense, the defendant argues that the conduct is insufficient to show his intent to commit the alleged crime ii) Incomplete attempt: defendant stops short of completing the offense, either of his own accord or because of the intervention of a third party (1) As a defense, the defendant argues that his conduct is insufficient to show that he had moved beyond the preparatory stage to actually commit the crime d) Approaches i) Common law (1) Mere preparation: not guilty of the crime (2) Preparation completed and perpetration has started: guilty of the crime (to some extent) (3) To determine if preparation has ceased and perpetration has begun: (a) Proximity approach: some courts hold that the accused must have done every act that he believes is necessary to bring about the intended result. Other courts hold that the defendant must be physically proximate to the intended crime

(b) Probably desistance approach: conduct must pass the point where the defendant would think better of it and desist (i.e., except for the intervention of some extraneous factorit would occur (i) An act which in the ordinary course of events would result in the commission of the intended crime except for the intervention of some extraneous factor (c) Equivocality approach: defendant does an act transforming preparation to perpetration and there is no other purpose of the act but the commission of that crime (i) The res ipsa loquitur test of criminal law (d) MPC approach (Substantial step test): A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for the commission of the crime, he: (i) Purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or (it would occur if circumstances were as he believes) (ii) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the purpose of causing or with the belief that it will cause such a result without further conduct on his part; or (does everything necessary for it to occur) (iii) Purposely does or omits to do anything that, under the circumstances as he believes them to be is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime (takes a substantial step toward the crime) 1. Conduct that may be a substantial step: a. Lying in wait b. Enticing or seeking to entice the victim to go to the place for the crime c. Reconnoitering the place contemplated for the crime d. Unlawful entry of a structure which it is contemplated that the crime will be committed e. Possession of materials to be employed in the commission of the crime f. Soliciting an innocent agent to engage in conduct constituting an element of the rime

(iv) Hypo: not deer hunting season. Hunter goes out seeking deer. Par rangers know this and create a dummy deer. Hunter shoots and blows off head of dummy. 1. MPC: guilty of attempt a. 5.01(a)-purposely engages in conduct that would constitute the crime if the attendant circumstance were as he believes them to be (v) Hypo: Car bomb placed but no one turns on the car 1. MPC: guilty of attempt a. 5.01(b)- substantial step: unlawful entry (vi) Hypo: planning to place a car bomb 1. Act: enter the car to see if a bomb could be placed a. Mens real b. Absent: it would require one to be knowingly and purposely c. Last proximate cause jurisdiction: not an attempt 2. Act: opening the car door and believing you can place bomb inside 3. 4. Act: goes to work and sees potential victim who makes a negative comment Act: decision to proceeds with placement of the bomb a. Mens rea is now present and the effort has been mad (vii) MPC discusses evidence of proof; act must be strongly corroborative 1. Act: stop at the hardware store. Buys small wrenches, some pipes, lighter, and wire a. Items could be used to make a bomb or to fix ones sink i. Strongly corroborative? (e) Mens rea requirement for intent (i) Having the required mental state that the completed crime requires (ii) Having the purpose to bring about the acts and any results that are elements of the completed crime (iii) Merely knowing of the existence of any attendant circumstances that the completed crime requires. (you only have to know that it is night to be guilty of attempted burglary) (iv) Note: there is no attempted involuntary manslaughteryou cannot intend to commit and unintentional killing (f) Attempt defenses:

(i) Impossibility: defendants act could never result in the completion of the crime 1. Factual, legal, true a. Factual impossibility: defendant is mistaken about the facts but if the defendant had been correct, the crime would have occurred i. Ex. Picking an empty pocket ii. Does not negate defendants intent to commit the crime. Defendant will still be found guilty b. Legal impossibility: the impossibility negates the crime itself i. Ex. Attempting to acquire stolen goods which are in fact not stole. ii. Some jurisdictions allow this

Approaching the big picture question of why do we punish for policy portions of the exam: Prevention: Prevention is used as the justification for punishment. It helps provide social control, deterrence, the ultimate utilitarian goal, protection of public safety, etc. For rehabilitative purposes, we do not punish people/put them in jail to make them better. We do it to teach people how to avoid reincarceration and to discourage them from committing cries again, ultimately serving the goal of preventing future crimes against society. The limitation on punishment is utilitarian. The deterrent force relies on public acceptance of the legitimacy of the law, and the grading of offenses must not excessively constrain liberty. Retributive: Retribution is used as justification for punishment because of a criminals blameworthiness, and societys need to see criminals get there just desserts or see the offender pay for his crime. Retribution also serves as a limitation on punishment in regards to free will, recognizing people have choices, and choosing not to punish them unless they made a morally wrong choice. Retributivists generally punish people less for lesser moral wrongs and more for greater moral wrongs (grading) as a proportionate response to criminal behavior. Civil liberties concerns: Society strongly respects civil liberties. Liberty can be maximized only if people are given a fair chance to not be arrested. Liberties would be at risk if police/courts have absolute freedom to

arrest/prosecute for crimes. Civil liberties lead to certain constraints on courts ability to punish: 1) we limit liability to conduct, not status or predicted dangerousness; 2) conduct must be voluntary, an act done by free will; 3) we want punishment to fit the crime. Equality concerns: Equal treatment under the law is an especially strong civil liberties concern; a s result, laws must be specific enough that the same standards can apply to all members of society. Inequality still happens, as people and systems are flawed and prejudiced. But the law can be written in ways that either encourage or discourage unequal treatment. Society strongly prefers the latter. The specificity of the law allows standardized application and determination of guilt. Also, it allows for equal enforcement by police toward all groups of people. Retroactivity concerns: Language is imprecise and law drafters attempt to be overinclusive. This can lead to ambiguity as to whether something is illegal at the edges of the law. We want law to be specific enough that a person can anticipate in advance whether their behavior will be illegal, and we do not want people using ambiguity to declare behavior criminal after the fact and punish behavior that was not recognized as criminal at the time it was committed. Vagueness challenge: Sometimes law fails to give adequate notice/fair warning as to what is criminal or vagueness of law allows arbitrary and discriminatory enforcement. There has to be balance between public protection and personal liberty; the vagueness doctrine is very contextual, not to be overused, and is often applied more broadly to individuals displaying public behavior than business transactions. To argue there is no vagueness challenge, argue that there is greater need for social control. To make a vagueness challenge, argue that values/liberties trump enforcement.