Criminal Law and Its Processes: Cases and Materials

Criminal Law and Its Processes: Cases and Materials

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This edition, while preserving continuity with its predecessors, introduces several changes in the content and sequencing of the material. We have retained the basic organization, tone, and perspective of the book. We have replaced relatively few of the major cases and have maintained the intellectual framework and concrete questions and problems that so many of our colleagues have found helpful vehicles for successful teaching. This Preface discusses the basic goals of the course before turning to the specific changes for this edition. Why substantive criminal law? We conceive of a criminal law course as serving the ends of both general legal education and training in the criminal law in particular. There are, as we see it, three chief ways the course can contribute to the general legal education of the law student. One way is to provide a vehicle for the close reading of statutory texts—primarily the Model Penal Code, but also state statutory formulations—to help balance the emphasis on case law in the first-year curriculum. The second way is to introduce the student to the operation of a system of rules and principles designed to apportion blame and responsibility in accordance with our moral norms, subject to the practical restraints of a functioning system. While the criminal law is the primary institution serving this function, fault and wrongdoing each play a role in determining liability throughout the law. Hence some understanding of the analytical elements in assessing blame for a person’s conduct or for the conduct of another, and of the concepts of excuse and justification, is an important element in a lawyer’s legal education. The third way the criminal law course serves the purpose of general legal education is by enlarging insight into the potentialities and limitations of the law as an instrument of social control. We have in mind the hard problems encountered in using the law for this purpose: the difficulty of giving legal form to the compromises made necessary when goals conflict; the creation of institutional arrangements—judicial and administrative—appropriate to the goals sought; the limitations—moral and practical—on the use of the law as a means of social control; the relation of legal controls to other social processes. The substantive criminal law provides an unusually suitable introduction to these pervasive problems of the law. The ends criminal law serves involve social and human values of the highest order. It means, entailing the imposition of brute force on the lives of individuals, are potentially the most destructive and abusive to be found within the legal system. The issues it raises and the setting in which it raises them are compelling and vivid. Its institutions are acutely controversial and often controverted. And one of its underlying themes is the momentous issue of the reconciliation of authority and the individual. As Professor Herbert Wechsler has written: “Whatever views one holds about the penal law, no one will question it importance in society. This is the law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to bring to bear on individuals. Its promise as an instruments of safety is matched only by its power to destroy. If penal law is weak or ineffective, basic human interests are in jeopardy. If it is harsh or arbitrary in its impact, it works a gross injustice on those caught within its toils. The law that carries such responsibilities should surely be as rational and just as law can be. Nowhere in the entire legal field is more at stake for the community or for the individual.” What of the course’s narrower purpose of training students in the criminal law in particular? Here there are two main pedagogic objectives. One is to furnish a solid foundation for those who will, in greater of lesser degree, participate directly in the processes of the criminal law. This foundation does not require mastery of the full range of technical skills and information held by the practicing criminal lawyer, judge or administrator, but rather the development of confidence in handling principles and rules—judge-made or statutory—through knowledge about the larger implications of doctrines and institutions of the criminal law. The second purpose is to crate in law school graduates who will have little occasion to practice criminal law and understanding of the problems of the criminal law. As influential members of their communities—and more directly as judges, legislators, or teachers—lawyers versed in the principles of criminal law can bring an informed intelligence to the challenge of solving some of the most vexing problems of our times. Revisions for the eighth edition. As mentioned, this edition maintains the organization, intellectual perspectives, and pedagogical tools that have proved successful in previous editions. At the same time, we have strived throughout to enhance the transparency of the book’s organization and the accessibility of its notes and questions, in order to provide greater clarity and ease of teaching. Beyond these essentially stylistic goals, we have had in mind several substantive objectives. The first is to feature prominently, both in organization and content, the problem of statutory interpretation, an issue that is so often at the threshold of analysis in criminal law cases. Second, we have aimed to give more systematic attention to the vocabulary and doctrine of the common law, distinguishing it more specifically from that of the Model Penal Code framework. Third, the ever-growing complexity and importance of capital punishment jurisprudence have led us to provide a revised and expanded section on the death penalty. Fourth and relatedly, we have concluded that a modern criminal law course must give more attention to the growing importance of federal criminal law and the complex new offenses used to embellish traditional common law concepts. Attempt laws, for example, are supplemented by stalking statutes, and the principles of conspiracy and complicity law are supplemented by state and federal RICO statutes and by increasingly broad money laundering statutes. Detailed treatment of these complicated laws is of course impossible and unnecessary in an introductory course, but we believe that brief exposure to the material, tightly edited will give students a better appreciation of the modern workings of the criminal justice system. Fifth, for similar reasons, we believe that awareness of developments in the field of international human rights should become more prominent in the education of American lawyers. Again, without seeking to examine this complex topic systematically, we believe it is possible and desirable to give students an introduction to this increasingly significant area through one example (the reap case of M.C. v. Bulgaria), along with shorter references elsewhere in the book. Sixth, we have sought to make the subject of sentencing both comprehensible and teachable within the framework of an introductory criminal law course. The growing complexity of sentencing procedure and sentencing guidelines poses a dilemma for an introductory course. The subject is too important to be ignored but too complex to be covered comprehensively. We have sought to strike an appropriate balance by providing a concise introduction to the issues early in the book (briefly covering jury sentencing in Chapter 1 and sentencing procedures in Chapter 2), while offering in Chapter 10—for teachers who have the time and inclination—a more detailed treatment that includes an in-depth look at the federal sentencing guidelines and an examination of the complex sentencing implications of constitutional jury trial principles. Where classroom time is too limited for this more extensive examination, the brief introductory treatment in Chapters 1 and 2 should suffice to illustrate for students the procedural issues, as well as the tough jurisprudential issues underlying them. Our final and perhaps most important goal for this revision has been to provide an innovative supplement to the traditional substantive criminal law agenda—a systematic treatment of the phenomenon of discretion. Discretion is never far below the surface of any issue in criminal law, and it often enters the discussion, intentionally or unexpectedly, at many points throughout the course. Discretion has always been important, but its significance has grown exponentially over the past two decades, to the point where we now believe that the introductory course should offer students a systematic examination of its dynamics and implications. With that goal in mind, the Eighth Edition introduces a new chapter devoted to discretion, with detailed treatment of prosecutorial discretion, plea bargaining, and discretion in the sentencing process. The chapter does not deal with criminal procedure in the conventional sense; rather, its focus is on the quintessentially substantive problem of understanding the criteria (or lack of criteria) by which culpability and punishment are determined in contemporary America. In the procedural sections (Chapter 1), we have shortened the materials but have retained those fundamentals of criminal trail procedure that we consider essential for understanding the issue in substantive criminal law (rules of evidence, burden of proof, presumptions, and the role of the jury). These topics can now be covered in just two or three hours. We believe that treatment of this material at the outset of the course adds greatly to the student’s appreciation of the concrete setting in which substantive law issues arise and the practical considerations that often influence those debates. The themes of this section are central to the study and practice of law, and we believe that students can profit from exposure to these themes early and often in their legal education. In the substantive sections we have updated the cases, added Notes and Problems dealing with issues of current concern, and done some reorganization of the material. For example, Chapter 4 (Rape) has been updated to cover many newly prominent issue, as well as to permit sustained attention to statutory drafting and reform. In Chapter 3 (The Elements of Just Punishment), consistent with our goal of focusing more prominently on issue of statutory interpretation, we have changed the order of the three principal sections. Chapter 3 now begins with Legality (a section with expanded treatment of statutory interpretation), and then turns to Proportionality (a brief section that can usually be covered in a single class hour). We believe that Chapter 3 can be better paced by considering these shorter and more preliminary topics first, before turning to Culpability, a subject that encompasses many detailed issue that typically require extended treatment. Teachers who prefer to begin with Culpability can of course move directly to that section. Among the book’s new principal cases are the Supreme Court’s important decisions in Lawrence v. Texas (criminalization of private consenting sexual conduct), Atkins v. Virginia (capital punishment), Clark v. Arizona (diminished capacity), and Blakely v. Washington (sentencing); the House of Lords’ landmark decision in B (a Minor) v. D.P.P. (mens rea); and the European Court of Human Rights’ groundbreaking decision in M.C. v. Bulgaria (rape). As in previous editions, the substantive materials continue to focus on imparting an understanding of what is often called the “general part” of the criminal law—that is, those basic principles and doctrines that come into play across the range of specific offenses (for example, actus reus, mens rea, and the various justifications and excuses). We believe that mastery of the detailed elements of many particular crimes is not an appropriate goal for a basic criminal law course. Nevertheless, we have found that understanding of the basic principles is enhanced by testing their applications and interactions in the context of particular offenses. Accordingly, we examine in detail three offense categories: rape (Chapter 4), homicide (Chapter 5), and theft (Chapter 9). The chapter on rape provides an opportunity to focus on the definitional elements of a major crime in a context that has become the focus of acute controversy because of changing perceptions and changing social values. The theme of the homicide chapter is the task of legislative grading of punishment in a particularly challenging area. The theft chapter explores the significance of history and the continued impact of old doctrinal categories on the resolution of thoroughly modern difficulties in defining the boundaries of the criminal law.

Publication Date

2007

Edition

8

Criminal Law and Its Processes: Cases and Materials

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