Monday, December 19, 2005

Outline - Criminal Law - III - Liability

Criminal Law (2005 Fall)


  1. Proportionality
    1. 8th Amendment – “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted ...”
    2. Harmelin – Life in prison without possibility of parole for possession of <700g of cocaine not “cruel and unusual”.
      1. Majority – Narrow holding that diversity in policy and implementation is heart and soul of federal system; but “death is different”.
      2. Kennedy concurrence – No strict proportionality; 8th Amendment only forbids extreme sentences “grossly disproportionate” to offense.
  2. Legality - Limits on what acts the state can criminalize
    1. Role of public morality [Lawrence - Statutes criminalizing sodomy unconstitutional for punishing homosexual status]
    2. Role of courts [Shaw – Court creates offense of “conspiracy to corrupt public morals”]
      1. Viscount Simonds – power in the courts
      2. Lord Morris – power to the jury
      3. Lord Reid (dissent) – power to Parliament
    3. Role of legislature [Keeler – Court declines to define unborn fetus as “human being”, reverses conviction of defendant who kneed his pregnant ex-wife, killing the fetus]
    4. Vagueness [Morales – Statute criminalizing loitering unconstitutionally vague]
      1. Lack of notice
      2. Arbitrary and discriminatory enforcement

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