Criminal Law Quiz 2

criminal punishment in early England

evolved from private revenge by victims or their families to public imposition of punishment after a jury trial; point was humiliation

early England punishment examples

hanged, beheaded, quarters, drawn, and burned at the stake

early England lesser offense punishment examples

mutilation such as cropping, blinding, amputation of the hand, and branding

benefit of the clergy

in the twelfth century, the decision was made that priests accused of felonies could be tried by the royal courts, but they could not be put to death for the first felony conviction; eventually extended to all people who could read because of the large amount of people being put to death

reading a psalm out of the Bible

the test to determine who could claim the privilege that they could read

the law of sanctuary and the right of asylum

in the Middle Ages, criminals who were permitted to take refuge in a church or monastery could not be removed from it

transportation

people convicted of crimes in England could be pardoned if they agreed to be transported to a colony to do hard labor; the first convicts were sent abroad to America in 1655; after the American Revolution, Australia became the principal place to which prisoners were sent under the condition of pardon

Eighth Amendment

ratified in 1791; excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; punishments cannot violate proportionality, meaning appropriate to the crime committed

three considerations of was is proportional by the Supreme Court

1. gravity of offense and harshness of penalty

2. sentences for similar crimes in same jurisdiction

3. sentences for similar crimes in other jurisdictions

proportionality since Solem

3-part consideration only required if a punishment is deemed grossly disproportionate; court has revered no prison sentences under proportionality review

Fourteenth Amendment

provides for equal protection and due process; punishments must meet certain standards

equal protection

all people treated equally by the law/legal system

due process

fairness; two types include procedural and substantive

procedural due process

(legal violation); fair procedures regulating state/government conduct

substantive due process

(moral violation); government conduct so harmful it shocks the conscience

Ingraham v. Wright (1977)

eighth amendment is not applicable to students because they are not physically retrained from leaving school

Neal v. Fulton

fourteenth amendment; does apply to students because the student was deprived of substantive due process

fines/fees and forfeiture

commonly used alternative to incarceration

fines should not be excessive

violates Excessive Fines Clause in the Eighth Amendment; has to be grossly disproportionate

capital punishment

used in the US throughout history and colonial times; ruled unconstitutional in 1972 then in 1976 it was rewritten

Furman v. Georgia

violated the eighth amendment because it was arbitrary and capricious; states must use objective standards

California

in 1976 it approved amendment adding capital punishment to state constitution

aggravating circumstances

justify the death penalty; must be proved beyond a reasonable doubt

mitigating circumstances

justify punishment less than death; do not have to be proved beyond a reasonable doubt

Gregg v. Georgia (1976)

1,431 people executed since; 142 people in death row exonerated based on proof of innocence

first amendment

protects freedom of religion/no establishment of religion, freedom of press, freedom of assembly (protest), right to petition, and freedom of speech

types of speech protected by the first amendment

pure speech, written communication, picketing/protest, and symbolic speech

types of speech not protected by the first amendment

obscenity, fighting words, inciting unlawful conduct, defamation, and public nuisance

speech restriction

if it poses a clear and present danger

Schenck v. US

encouraging resistance against military draft not protected by the first amendment

fighting words

speech likely to cause public disorder or breach of the peace; usually only applies for face-to-face communication; Chaplinsky v. New Hampshire

obscenity

baed on contemporary standards, based on the average person’s perception, appeals to prurient lustful interest, depicts sexual content in a patently offensive manner, lacks serious artistic, literary, political, or scientific value; standard set by Supreme Court in Miller v. California

inciting

urging others to commit crime; must be likely to produce action; likelihood of action must be imminent

defamation

injuring another’s character/reputation; difficult to win a lawsuit; higher standard of proof for public officials; must show reckless disregard for the truth

libel

written defamation

slander

oral defamation

symbolic speech

nonverbal expression, usually to convey a belief; covered by the first amendment

assault

conviction requires acts intended to cause bodily injury, or instill such fear; using any weapon to cause fear

battery

conviction requires intentional infliction of bodily harm or unlawful touching in a rude or offensive way; some states do not require a guilty mind

simple assault

misdemeanor; threatening with no weapon; often doesn’t involve physical violence

aggravated assault

deadly weapon is used or there is an intent to commit a felony; higher degrees are felonies

aggravated battery

serious bodily injury results or a deadly weapon was used; sometimes there are circumstances, like when a woman is pregnant, that can make this sentence

self-defense

under some circumstances, the violence may be justified; the conduct was deemed necessary and lawful and to prevent escape

sports charges

if conduct in a sport s beyond the rules of the game, such as throwing a bat at a player in baseball, criminal charges are applicable

spectator violence

occasionally a problem at sporting events where criminal charges are brought

hate crime

states may enact laws that enhance and increase penalties from crimes ing it is proven that the defendant intentionally selected the victim because of the victim’s race, religion, color, ability, sexual orientation, national origin, or ancestry

active child abuse

physically hurting

passive child abuse

failure to care for a child adequately

parental kidnapping

when a parent takes a child without the knowledge of the other parent; it is also called child snatching or child stealing; usually done by non custodial parent

family violence and disturbances

physical violence occurs between family members more often than it occurs between other individuals

family members

spouses, persons living together, parents and children, or a person with whom a defendant has had a child

elder abuse

failure to properly care for a vulnerable adult

responses to family violence

arrest, obtaining a protective order, seeking out shelter, divorce or obtaining a court order, taking civil action, calling for wellness check on offender to place them in temporary custody, revocation of probation/parole

cyclical stages of domestic violence

1. tension building

2. acute battering

3. honeymoon phase

domestic violence order (DVO)

resource that survivors have that is essentially a restraining order; requires abuser to stay away; abuser can be incarcerated if not followed

Castle Rock v. Gonzalez

women’s children are killed by husband and police are not at fault for not acting upon DVO when asked