Model Lesson Plan: Criminal Law

February 12, 2001

David Westbrook

Criminal Law Lesson #3: Theories of Crime and Punishment

Justifications for Punishment and Plea Bargaining/Negotiation Exercise

I. Time: 55 Minutes

II. Goals: Discussing the social justifications for punishment and participating in a plea
bargaining exercise based on a realistic fact pattern helps students:

A. Better understand the goals of the criminal justice system and the roles that
prosecutors and public defenders play within it.

B. Think about both the legal and moral obligations that exist on each side of the
adversarial system.

C. Gain some rudimentary experience with negotiation and further develop their
communication skills.

III. Objectives:

A. Knowledge Objectives – As a result of this class, students will be better able to:

1. Understand the goals of two major theories of punishment:

a. The Utilitarian Theory
b. The Retributive Theory

2. Develop their own opinions about the ethics and effectiveness of these
theories of punishment.

3. Define the legal duties of prosecutors and public defenders and understand
their respective burdens at trial (e.g.: the prosecution’s burden of proof).

B. Skills Objectives – As a result of this class, students will be better able to:

1. Conduct an effective negotiation:

a. Prioritize goals and objectives.

b. Anticipate the opponent’s strategies.
c. Address the interests of the opposing party.
d. Achieve a settlement that addresses the concerns of both parties.

2. Work with a partner and communicate effectively in small groups.

3. Evaluate different negotiating techniques and identify areas for
improvement.

C. Attitude Objectives – As a result of this class, students will be better able to feel:
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 1. In criminal law, legal duties and moral duties do not always coincide. It is
sometimes necessary for both prosecutors and defenders to make tough
choices in order to meet all of their obligations and “do their jobs.”

2. Successful negotiations rarely result in one party achieving all of its goals,
but rather each party achieving some of its goals.

3. Listening is the most important part of a negotiation.

IV. Classroom Methods:

A. Brainstorming session: “What purpose is served by establishing a system of

punishment for those who commit crimes?” Write student answers on the
board and go back to them during part “B”. (5 minutes)

B. Explain two competing theories of punishment: the Utilitarian Theory and the
Retributive Theory: (6 minutes)

1. Utilitarian Theory – Focuses on achieving social benefit:

a. Deterrence – In general, it has been found that an increase in the

detection, arrest and conviction rate is a greater deterrence to crime than
an increase in the punishment.

b. Incapacitation – Removing dangerous individuals from society protects

society from that person.

c. Rehabilitation – Offenders can be “changed” into productive members of

society if given proper treatment.
• NOTE: This may be a goal of punishment, but it is not a justification for
punishment and in today’s system, it has been all but rejected.

2. Retributive Theory – Society is under a moral obligation to punish a defendant

who deserves punishment. It is wrong to punish the innocent and we must
take steps to avoid doing so, but a guilty person must be punished.

a. Assaultive – Punishment is justified by the crime. It is not necessary to

look at the rights of the guilty or consider his or her “best interests.”

b. Protective – The guilty has benefited from the crime and society has paid
the price. Thus, the guilty person owes a debt to society.
C. Ask if there are any questions before moving on (2 minutes).

D. Begin Peggy Larner “Plea Bargain” exercise:

1. Read fact pattern aloud in class. (5 minutes)

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 2. Create 5 groups with 6 students in each group. Students in these groups
will negotiate in teams of two. Each group will consist of 2 prosecutors, 2
public defenders and 2 observers. Each role has its own objectives:

a. Prosecutors: Serve the interests of the state in effective law

enforcement by negotiating an appropriate sentence for the defendant.

b. Defenders: Represent the best interests of your client and achieve the
most beneficial settlement possible in light of the evidence against her.

c. Observers: Carefully observe the negotiation. Keep track of the

negotiating techniques used, what worked well and what did not.
Record the settlement that was reached and turn in all negotiation
worksheets at the end of the exercise.

E. Give instructions to the class and then have them break into small groups.
(5 minutes):

1. Once the students have moved to their places, distribute the handouts:
a. Fact Pattern: All students
b. Directions for Negotiation: All students
c. Sentencing Guidelines: All students
d. Confidential Information – Defense: defense teams only.
e. Confidential Information – Prosecution: Prosecution teams only.
f. Negotiation worksheet: One for each prosecution team and one for
each defense team.
g. Observer memo: One for each observer team.

2. Students will first meet with their “partners” to discuss their strategy for the
negotiation. They will have 5 minutes to discuss the issues and fill out
their worksheets. (5 minutes)

3. Next, the teams will meet in their pre-assigned group of six to conduct the
negotiation. (10-15 minutes)

4. Students will reach their final settlements and the observers will collect
and turn-in all negotiation worksheets. (2 minutes)

F. Discuss the exercise and tally the results of the negotiations on the board. Poll
the observers to determine what techniques were most effective and which
justification for punishment the parties used: Utilitarian, Retributive, or a
combination of the two. (5 minutes)

G. Discuss the likely outcome of the negotiation in “real life” according to

Washington sentencing guidelines (which utilize the “offender score” system).
We expect that the settlements reached by the students will fall below the
requirements of the Washington system. (5 minutes)

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V. Evaluation:

A. Student’s responses during the brain storming session.

B. Participation in the negotiation exercise. As usual, instructors will “float” from

group to group during the exercise to evaluate student progress.

C. The answers written on the negotiation worksheets.

VI. Assignment:

Journal assignment: Now that you have learned the actual penalty for “Delivery of
Heroin” in Washington State, do you think it is fair, too harsh or too lenient? Why?

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 DIRECTIONS FOR NEGOTIATION
Distribute to all students

Prosecutors: Serve the interests of the state in providing

effective law enforcement by negotiating an appropriate sentence
for the defendant. One of your duties is to punish those who
break the law.

Defenders: Represent the best interests of your client and

achieve the most beneficial settlement possible in light of the
evidence against her. Your duty is to represent your client even if
you believe she is guilty.

Observers: Carefully observe the negotiation. Keep track of the

negotiating techniques used, what worked well and what did not.
Record the settlement that was reached and turn in all negotiation
worksheets at the end of the exercise. Be prepared to answer
questions in class following the exercise.

EVERYONE: Remember to apply what you know about the

justifications for punishment to the negotiation:

1. Utilitarian Theory: What would benefit society most?

2. Retributive Theory: Guilty people deserve punishment.

NOTES:

1. Peggy Larner is innocent until proven guilty.

2. The prosecution bears the burden of proving her guilty.
3. She must be proven guilty “beyond a reasonable doubt.”

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 Confidential Information – Defense
Distribute to all defense teams only

You have been appointed by the court to defend Peggy Larner who lacks the funds to
hire her own attorney. As a defense attorney, you know certain details about this case
that the prosecution may not know. You may choose either to share these details with
the prosecution, or keep them secret depending on your view of what is best for your
client and what will be most beneficial to you in the negotiation.

1. The facts at first glance do not seem to favor your client.

2. However, after interviewing the police officer, you have discovered the possibility
that Ms. Larner was not given her warning of the “right to remain silent” (a.k.a.,
her “Miranda Warnings”). Of course, the lack of Miranda Warnings does not
mean Ms. Larner would go free, but it does mean that you could get her
confession excluded from the trial.

3. The officer is pretty confident about his identification of Ms. Larner for the sale on
January 2nd, but far less so for January 1st. That means the confession is the
only reliable evidence of the January 1st charge of Delivery of Heroin. If the
confession is suppressed, the prosecution will have to drop count #1, but that will
not affect count #2.

4. The judge in this case is politically conservative and normally favors the
prosecution. It may be difficult to convince her that the confession should be
thrown out.

5. Your client, Ms. Larner, wants to continue her drug treatment and education.
The cook at the restaurant where she works is a heroin addict and dealer. He
gave her free drugs as long as she brought in money by selling drugs for him.
She had been selling for about three weeks before the arrest. Ms. Days has
been doing well in school and in her new treatment program. She is finally
supporting her child and for the first time in her life, feeling like she is a help to
her mother instead of a burden. If Ms. Days goes to state prison, the gains she
has recently made will be lost. If she is sentenced to one year or less, she may
be able to obtain work release in the county jail and continue with her job and
schooling.

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 Confidential Information – Prosecution
Distribute to prosecution teams only

As a prosecuting attorney, you know certain details about this case that the defense
may not know. You may choose either to share these details with the defense, or keep
them secret depending on your view of what is best for your side and what will be most
beneficial to you in the negotiation.

1. Your office is very busy and your superiors have ordered you to plea bargain
rater than go to trial.

2. The officer is now less confident about his identification of Ms. Days for the first
count of Delivery of Heroin that took place on January 1st. He is very confident
about his identification for the second count (on January 2nd).

3. The business community and political leaders are fed up with drug crimes in that
area and are pressuring you to “throw the book” at drug offenders. Your also
getting pressure from your boss, the County Prosecutor, who is running for re-
election on a campaign of “zero-tolerance” drug enforcement.

4. The defendant has quit her restaurant job and has gone to work in a hotel. She
has started a new drug rehabilitation program and is doing well. She has also
resumed her college courses.

5. It is possible that the officer forgot to read Ms. Days her Miranda warnings (i.e.,
“You have the right to remain silent…”) before she confessed to her involvement
in the crimes. Of course, that does not mean Ms. Days will go free, but it could
mean that the Judge will suppress her confession. This will not affect the
second count of Delivery of Heroin from January 2nd, because the officer’s
identification of Ms. Days for that charge is very strong. But on the first count,
from January 1st, the officer is in doubt. So the confession is the only real
evidence you have for that count. If the confession is suppressed, you will be
forced to drop the first count of Delivery of Heroin. You feel it would be better to
reach a settlement with the defendant and perhaps use the first count as a
bargaining chip rather than risk having it dismissed at trial.

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 FACT PATTERN – THE CASE OF PEGGY LARNER
Distribute to all students

Defendant Peggy Larner is charged with two counts of Delivery of Heroin. On January 1st
2001, she sold $20.00 worth of heroin to undercover officer, Andrew Wiggin on a street corner
in downtown Seattle. She was not arrested on that date. However, on January 2nd, Officer
Wiggin saw Ms. Larner on the same street corner. He again purchased $20.00 worth of heroin
from her. She was placed under arrest immediately. She confessed to both offenses of
Delivery of Heroin.

The defendant, Ms. Larner, is a 29-year-old woman and is the oldest of 3 girls. She was 11
years old when her father died. One sister is a nurse and the other is institutionalized in a
mental hospital. Ms. Larner’s mother supported the family through domestic labor, unskilled
factory work and welfare.

The defendant has a high I.Q. and did well in high school. She is now attending college during
the day. She committed several offenses as juvenile, included marijuana possession,
shoplifting, and one incident of stealing money from her teacher’s purse at school. She began
using marijuana at age 15 and later started using heroin. Her offenses as a youth were all
related to her heroin addiction—she was stealing to finance her drug habit.

In 1997, she was sentenced to prison where she spent the ensuing 15 months in drug
treatment. Prison officials praised her active involvement in the drug treatment program. She
managed to stop using drugs for 3 years after her discharge from prison and has committed no
new offenses until now.

Ms. Larner became pregnant at age 18 and had a son who is being raised primarily by his
grandmother (Ms. Larner’s mother). She accepts full responsibility for her shortcomings as a
parent. Since her release from prison, she has re-established her relationship with her son and
made every effort to contribute to the financial and emotional support of her child. For the last 3
years, she has been working as a waitress at night while attending school in the day. She has
completed 3 and one-half-years of her 4 year college computer degree. Her academic record is
outstanding.

The Defendant’s prior criminal record follows:

PRIOR CRIMINAL HISTORY

DATE CRIME SENTENCE

1986-88 Juvenile Offenses – Theft, Possession of Marijuana Probation

1990 Theft 5 Days County Jail

1992 Burglary 30 Days County Jail

1993 Theft 180 Days County Jail

1997 Delivery of Heroin 15 Months State Prison

2001 Present Offense – TWO Counts Delivery of Heroin ?????

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 SENTENCING GUIDELINES
Distribute to all students

1. The sentencing range for each count of delivery of heroin is 0 to 10 years.

2. Options you may consider include:

a. Fine or probation (no jail time)

b. Short term imprisonment in County Jail (under one year):

County jail allows work release or home detention but has NO facilities for
vocational training, drug treatment or other rehabilitation.

c. Longer Term imprisonment in State Prison:

State prison has good rehabilitation, vocational and drug treatment programs but
no home detention or work release options.

d. Other options: Special drug rehabilitation programs involving some combination

of confinement, probation, medical and psychological treatment and community
service.

Note: Sentences on the two separate counts Delivery of Heroin may be handed out:

1. Concurrently, so they are served at the same time or,

2. Consecutively, so they are served one after the other.

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 Negotiation Worksheet
Distribute to prosecution and defense teams only

Names: ___________________ ___________________

Side: ___________________

Fill out this worksheet with your partner and hand it to your observers BEFORE
beginning your negotiation. Remember: each side has certain goals and expectations
that must be met. A good negotiation usually means that nobody gets exactly what they
want, but everyone gets some of what they want. Try to balance everyone’s interests
while protecting your own.

1. What are your goals for the negotiation?

2. What do you think your opponent’s goals will be?

3. What sentence (if any) will you propose?

4. What do you predict will be a realistic outcome of this negotiation?

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 OBSERVER MEMO
Distribute to observers only

Names: ___________________ ___________________

Side: ___________________

The observers must collect negotiation worksheets from both sides BEFORE the
negotiation begins. After class, turn in all the worksheets to your instructors. The
purpose of the observers is to evaluate the negotiations and think about what seemed
to work and what did not. At the end of the period, you will be asked to present your
opinions to the class. Be helpful, but not overly critical. Focus on evaluating the
process, techniques and the issues, not the individuals involved in the negotiation.

1. Did the parties try to recognize each other’s needs?

2. What techniques employed by the parties were most effective?

3. What techniques were least effective?

4. Before the negotiation started, what did you think would be a realistic outcome of the
negotiation?

5. What was the final outcome of the negotiation?

• Was a settlement reached? YES ___ NO___
• If yes, what was it?

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