II,2009-2010
Political Science 452
Criminal Law and Justice
D.A. Downs
Purpose of the Course
The purpose of this course is to introduce students to the substantive and
procedural aspects of criminal law through the study of key cases and concepts.
Substantive criminal law entails such matters as: the basic ends and purposes of the
criminal sanction (theories of crime, punishment, responsibility, and the processes of the
criminal justice system); specific crimes (e.g., homicide, sexual assault, attempts,
conspiracy, and the like); the basic elements of criminal culpability (mens rea, actus
reus, causation, corpus delicti); criminal defenses (e.g., self-defense, duress, insanity,
diminished capacity, justification, necessity, excuse, consent, mistake of fact or law, etc.);
and the basic legal concepts or standards regarding evidence and proof of guilt (e.g., guilt
beyond a reasonable doubt, presumptions or inferences of fact, admissibility of evidence).
Overall, substantive criminal law concerns the matter of society’s holding individuals
accountable or blameworthy for their illegal actions, and the norms and standards that
govern this accounting. Because this assessment involves often delicate judgments of a
factual and moral nature, it is one of the most interesting and controversial activities in
the social order. It can make for high drama, or, at least, a highly interesting and
challenging class. In dealing with substantive criminal law, we will also address the
underlying and operative principles of criminal law and justice in the context of the
constitutional and democratic order. We will see how different philosophical and
theoretical perspectives influence where one draws the line between culpability and nonculpability. This approach will help us to understand the actual law in operation, and
help us to critically evaluate the operation of criminal law in America.
The last part of the course will treat procedural criminal law, which deals with
such matters as investigations and police practices, and disposition of the defendant in
pretrial and trial processes. We will deal primarily with police investigation and
interrogation practices, focusing on entrapment, search and seizure law, and the
interrogation of suspects.
The primary method of study will be the analysis and discussion of cases in the
primary text, Criminal Law and Its Administration, by Inbau, Thompson, Zagel, and
Manak (1997 edition). (Henceforth, ITZ&M) We will study the cases through lecture
and guided discussion. Lecture will be important to lay out the background and
frameworks for analysis and discussion. This is important, for the casebook does not
perform this function. In addition, despite the size of the class, there will be class
participation. You might be called upon. As you will discover, the questions with which
we will deal are often open to interpretation, so there will often be two or more sides that
have to be taken seriously. Those of you who are looking for a course in which memory
and regurgitation are all that are needed have come to the wrong class. Much of what we
will deal with deals with shades of gray, requiring tentative judgments that are always
open to challenge. Consequently, we will place a premium on maintaining an open, yet
critical mind. All viewpoints are not only welcome, but encouraged. If you are afraid to
express an informed opinion because it might be controversial, you will be doing a
disservice to the class. Learning in this context requires debate and give-and-take.
We will also read three paperbacks that will illuminate key aspects of criminal
law: The Killing of Bonnie Garland: A Question of Justice, by Willard Gaylin; and A
Crime of Self-Defense: Bernard Goetz and the Law on Trial, by George Fletcher; and
Until Proven Innocent, by Stuart Taylor and K.C. Johnson. The books will be dealt with
in lecture and (especially) in the sections, and will be part of the exams. In addition, I will
assign cases from a supplement or through a class list when we get to Fourth Amendment
issues.
Course Requirements
Students will be evaluated on the basis of two midterm exams, and a final exam.
The first midterm exam (35% of the final grade) will consist of a hypothetical
case that you will answer as if you were a judge or an advisor to a judge, and a few short
identifications. The hypothetical question will be handed out in class a week before the
exam (on Thursday, March 4), and you will write it in class on Thursday, March 11. On
March 11 you will also answer five short identifications that you will not be given ahead
of time. During the test students will not be allowed to use books or notes, but may bring
to call one 3 x 5 note card with notes on it.
The second midterm exam (30% of the final grade) will take place in class on
Thursday, April 8. It will consist of over 30 multiple choice questions based on material
in the readings and lecture.
The final exam (35% of the final grade, on Thursday, May 13, at 10:05 a.m.) will
consist of a hypothetical question and an essay question, each of which will count 50% of
the final exam grade. These questions will not be given to you until the actual time of the
exam (that is, they will not be given to you in advance). I once allowed papers for extra
credit, but abandoned that practice in 1991 after a man I encountered one night on Willy
Street informed me that he had written about twenty papers for my students. I never
caught those responsible, but I harbor little doubt that they will not fare well in the event
there is an afterlife.
Section attendance and participation Students are expected to attend section.
Excellent attendance and/or exceptional participation (based on quality) will be
considered if a student’s overall grade is otherwise on the borderline.
Given the size of the class, no one will be exempted from taking the exams at the
assigned times unless an emergency situation exists that is proved by appropriate
documentation, or if there is a compelling reason that you discuss with me the first week
of class. Nothing associated with spring break will constitute an emergency in any
respect.
Grading. Grading will be based on a strict curve, which means that sizable
numbers of students can expect to receive grades below a ‘B.’ The computer posting of a
grade at the end of the term is final unless an administrative or clerical error has occurred.
Assignments. I anticipate that most of the following sections will take three to five
classes, though the actual rate of progress will be determined by the nature of the class
and the material under discussion. (Some will take longer.) I will post what will be
covered on the board, a week or two in advance as we go along.
I. Substantive Criminal Law
A. Introduction: The Basic Concepts of Culpability and the Principles of Criminal Law.
Read: ITZ&M, Ch. 1, Outline of Criminal Procedure.
Recommended Readings (for those who want to pursue more reading, not
required or expected):
Walter F. Berns, For Capital Punishment (1979)
Mirjan R. Damaska, The Faces of Justice and State Authority (1986)
Phil Fennel, Criminal Justice in Europe (1995)
Jerome Hall, General Principles of Criminal Law (1960)
Herbert Packer, The Limits of the Criminal Sanction (1968)
George P. Fletcher, Rethinking Criminal Law (1978)
Jack Katz, Seductions of Crime (1988)
Leo Katz, Bad Acts/Guilty Minds (1988)
Richard Hernnstein and James Q. Wilson, Crime and Human Nature (1985)
Michel Foucault, Discipline and Punish (1979)
Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles (1997)
Donald A. Downs, More than Victims: Battered Women, the Syndrome Society, and the
Law (1996)
Bruce Springsteen, Nebraska (1982)
B. Homicide: Murder, Felony Murder, Manslaughter, Self-Defense and Justifiable Use
of Deadly Force. Read: ITZ&M, Ch. 4, “Homicide,” pp. 303-364. Fletcher, A Crime of
Self-Defense, esp. chapters 1-6.
Recommended: David Simon, A Year on the Killing Streets (1991); R. Singer, “The
Resurgence of Mens Rea: I—Provocation, Emotional Disturbance, and the Model Penal
Code,” 27 Boston College Law Review 243 (1986); J. Dressler, “Rethinking Heat of
Passion: A Defense in Search of a Rationale,” 73 Journal of Criminal Law and
Criminology,” 421 (1982); N.E. Roth, and S.E. Sunby, “The Felony-Murder Rule: A
Doctrine at Constitutional Crossroads,” 70 Cornell Law Review 446 (1985); D. Crump
and W. Crump, “In Defense of the Felony-Murder Doctrine,” 8 Harvard Journal of Law
and Public Policy 359 (1985); Katz, Seductions of Crime, esp. Chs. 1,8,9; Donald A.
Downs, More than Victims.
C. Attempts and Other Uncompleted Criminal Acts and Group Criminality: Windows
into the Underlying Assumptions of Criminal Law. Read: ITZ&M, Ch. 8, pp. 518-540.
“Uncompleted Criminal Conduct and Criminal Combinations.”
Recommended: George Fletcher, Rethinking Criminal Law, pp. 131-197; Kent
Greenawalt, Speech, Crime, and the Uses of Language (1989); Lawrence Crocker,
“Justice in Criminal Liability: Decriminalizing Harmless Attempts,” 53 Ohio State Law
Journal 1057 (1992); “The New Attempt Laws: An Unsuspected Threat to the Fourth
Amendment,” 33 Stanford Law Review 201 (1981).
D. Basic Legal Concepts Regarding Proof of Guilt. Read: ITZ&M, Ch. 9, “Reasonable
Doubt and Presumptions of Fact.”
Recommended: Jerome Frank, Courts on Trial (1941); Marvin Frankel, Partisan Justice
(1980); Steven Philips, No Heroes, No Villains: The Story of a Murder Trial (1978);
Franklin Strier, Reconstructing Justice: An Agenda for Trial Reform (1994).
F. The Mental Elements of Crime; and Punishment. Read: ITZ&M, Ch. 7, “Criminal
Responsibility and the Defense of Mental Impairment;” ITZ&M, Ch. 182-216. Gaylin,
The Killing of Bonnie Garland.
Recommended: Herbert Fingarette, The Meaning of Criminal Insanity (1972);
Thomas Szasz, The Myth of Mental Illness (1974); Thomas Baeder, Crime and Madness
(1984); Michael Moore, Law and Psychiatry: Reexamining the Relationship (1984);
Stephen Morse, “Failed Explanations and Criminal Responsibility: Experts and the
Unconscious,” 68 Virginia Law Review 971 (1982); David Garland, Punishment in
Modern Society: A Study in Social Theory (1990); Walter Berns, For Capital
Punishmnent; Hugo Adam Bedau, ed., The Death Penalty in America (latest edition);
John C. Tucker, May God Have Mercy: A True Story of Crime and Punishment (1998).
II. Procedural Criminal Law
A. Entrapment. Read: ITZ&M, Chapter 10, “The Limits of Undercover Work,” pp. 583610. Until Proven Innocent, by Taylor and Johnson.
Recommended: Damon D. camp, “Out of the Quagmire After Jacobson v. United
States: Towards a More Balanced Entrapment Standard,” 83 Criminal Law and
Criminology 1055 (1993); Maura F.J. Whelan, “Lead Us Not into (Unwarranted)
Temptation: A Proposal to Replace the Entrapment Defense with a Reasonable Suspicion
Requirement,” 133 University of Pennsylvania Law Review 1193 (1985); Kenneth M.
Lord, “Entrapment and Due Process: Moving Toward a Dual System of Defenses,” 25
Florida State University Law Review 463 (1998)
B. Fourth Amendment Search and Seizure. Read: ITZ&M, Ch. 14, “Search and
Seizures,” pp. 839-868, 886-980.
Recommended: Bradley Craig, “Two Models of the Fourth Amendment,” 83
Michigan Law Review 1468 (1985); Walter LaFave, Search and Seizure: A Treatise on
the Fourth Amendment (1978 and more recent editions); Lewis Katz, “In Search of a
Fourth Amendment for the Twenty-First Century,” 65 Indiana Law Review 549 (1990);
Amar, The Constitution and Criminal Procedure, Ch. 1; Christopher Slobogin, “Why
Liberals Should Chuck the Exclusionary Rule,” 1999 Illinois Law Review 363; Jeffrey
Rosen, The Unwanted Gaze: The Destruction of Privacy in America (2000).
C. Confessions. Read: ITZ&M, Ch. 12, “Criminal Interrogations and Confessions.”
Recommended: Amar, The Constitution and Criminal Procedure, Ch. 2; Margie
L. Trust, “Trust, Lies, and Interrogation,” 3 Virginia Journal of Social Policy and Law 3
(1995); Paul Marcus, “A Return to the ‘Bright Line Rule,’ of Miranda,” 35 William and
Mary Law Review 93 (1993); Yale Kamisar, “On the ‘Fruits’ of Miranda Violations,
Coerced Confessions, and Compelled Testimony,” 93 Michigan Law Review 929 (1995);
Paul G. Cassell, “All Benefits, No Costs: The Grand Illusion of Miranda’s Defenders,”
98 Northwestern Law Review 1084 (1998).