Outline - Criminal Law - III - Liability

Criminal Law (2005 Fall)

III. LIABILITY

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