Вы находитесь на странице: 1из 12


Punishment is imposed to vent societys sense of outrage and need for revenge. Retributivist: punishment is justified because people deserve it (KANT)


Main stay of the Utilitarianism position o ACT Consequences of this particular defendant o RULE - how the rule set by this precedent will affect the future. (Dudley Court) o


Purpose: to reduce future crimes. Program: planned intervention to reform criminal. Effect: actual reduction/elimination of criminality in offenders behavior. Focus is on nature of actor, not the act!

Incapacitatio n
While imprisoned a criminal has fewer opportunities to commit crimes that harms society. Protects the community

1. General Deterrence on the whole of society. 1. Rational People o Assumptions that it works: are rational and have Punishment has to be public free will. Thus, we hold Public does not see criminal them responsible for justice as arbitrary or their actions. (They erratic. should MORALLY want o Problems it presents: to do the right thing People who have already because they fear social committed notorious crimes judgment) have already committed o Just Deserts Modern them so you use them as theory of what individuals examples it didnt keep deserve. them from the crime. o Tends to be more important than emotive, Punishment can end up based on libertarian being too severe for the theories. crime. 2. Emotive role of o Publicity of the crime creates a emotions are central, desire to set an example. desire and emotions are o Deterrence is set in motion deeply rooted in through legislature through community. (focus is on statutes. good of community) 2. Specific Deter the specific individual o Payback is deeply rooted from committing crimes again. and needs to be o Reasoning: channeled. (communitarian/utilitaria Should be severe enough to n theories) outweigh the benefit of the crime. Repeat crimes allow for harsher penalties because first punishment was ineffective.
Utilitarian consequences and how they effect the future by identifying which crimes are more deterrable than others (heat of passion are less deterrable) is fairly

1. Pragmatic OUTWARD - not concerned with moral reformation, but conditioning people to conform their behavior to social norms (civil obedience) o Focus is on outward behavior. o Consistent with assumption of free will. 2. Paternalistic INSIDE goal is to reform prisoner morally. Good citizenship requires moral citizens Society is responsible for criminals conduct. DECLINE: started in 70s Problems: Prisons equal schools for crime Severe punishments harden offenders.

Theories of Punishment:

What to punish?
Due Process Substantive no matter how fair the procedure is the government cannot take away these rights because we as humans are entitled to them. Bowers Case: GA statute criminalized sodomy, outlawed consensual homo sexual conduct in private residencies. Supreme court held entering someones home unconstitutional . RIGHT TO PRIVACY = substantive right Procedural government cannot take away liberty without fair notice and a chance to defend. Slippery Slope If we interpret the law this way it will open the floodgates and not be good for society. o Bowers: allowing sexual sodomy would lead to lots of gay rights! slippery slope! POLICY Torts vs Crimes 3 main jusifications why torts are separate from crim: o 1. Criminal = Public; Torts = Private - Crim law does not provide and monetary compensation to the victims Problem: There is public harm in tort law. Counter: theres a different emphasis on the term public o 2. Crim prosecution = pub offcials; Tort law = private individuals. Problem: public officials can bring some private actions because they can use civil courts to enforce the law. Private parties cannot issue criminal prosecutions. Counter: public officials bring more actions in the public sector. o 3. Crim punishment are more serious and take away liberty where torts punish for money or property. Problem: in some civil circumstances you can go to jail (ex, no complying with court order. Counter: jail time is not the punishment for the actual tort committed. Principles of Legality Four Components: 1. Judges do not have power to create new crimes (Keeler/fetus case) 2. Criminal law only applies prospectively o (Keeler; Davis cases) o For fairness reasons o Notice is important: societal stigma, harsh punishment, loss of due process. o Ex Post Facto Laws: work retroactively apply in 3 situations 1. Criminalizing retroactively conduct that was not previously criminal 2. Expanding the scope of a crime retroactively 3. Increasing punishment for a crime retroactively. 3. Crimes must be defined with sufficient precision to serve as a guide to lawful conduct. Ie. Adequate notice. 4. Crimes must be defined with sufficient precision to confine police and prosecutors. o 3 + 4 = Void for Vagueness Doctrine o Based on procedural due process. o Void for Vagueness Doctrine has limited scope never been used to strike down a core crime.
o When to apply doctrine:

Individual liberties vs. power to take liberties away. (14th Amendment right to privacy; persons right to make decisions within their home) Approaches to interpreting a statute: 1) original intent 2) living constitution changes with the times. Lawyers Notice: citizens have fair warning if when a lawyer went and investigated this situation would he find the person to be liable?

Statute is not aimed at social evil (Jacksonville Ordinance)

Average person might violate statute with normal conduct. Vagueness makes arbitrary law enforcement a serious crime. More likely to strike it down if they wont be undermining the legislature if it is addressing some social harm. We can do without this statute just fine!

The Act Requirement (Actus Reus):

Voluntary Act 2.01

if more than one act: only one needs to be voluntary (VOLUNTARY = CONSCIOUS AWARENESS) Involuntary acts include: reflexes/convulsions (2)(a), unconsciousness/sleepwalking (2)(b), hypnosis (2)(c), movements that are not desired y the actor (2)(d). (MPC defines voluntary by stating whats not) We punish voluntary acts because they are willful actions where involuntary acts are not deter able. (Utilitarianism) o Retributivists: involuntary acts do not deserve punishment. Martin v. State (police brought drunk guy out into public): rule only one act has to be voluntary (getting drunk is the relevant act) but you only go back so far. If you go back too far everyone would be held liable for some voluntary act. (People v. Decina D seizures at wheel but convicted of homicide because he voluntarily drove knowing that a seizure was possible and therefore negligent) you are liable for culpable negligence if you have awareness of a condition which is known to produce such consequences (unconsciousness/involuntary acts) and disregard of the consequences.

Misprision of Felony
Failure to report knowledge of a crime. Rejected in most jurisdictions Two types of interpretations: o Broad: Liability for ANY failure to report a crime (Minority) o Narrow: Imposes liability ONLY IF there is ACTIVE CONCEALMENT and deception (majority)

Omissions Liability - MPC and Common Law the same.

Bystander Liability Common Law and MPC same.

No liability for failure to act 2.01(3) Gross Negligence and dont forget to talk about mens rea! EXCEPTIONS: o Statute imposes duty to act 2.01(3)(a) o Special relationship (parent child) o Contract to provide care (lifeguard) o Voluntary assumption of care (isolates individual ex. Taking sick into home) o Person creates the risk (push someone who cant swim into deep lake) Punishment is for the crime you would have committed that yields the same result. o You do not have to subject yourself to substantial risk to save another. Status of being something is not enough for conviction (Ex alcoholic) Robinson case (guy convicted on basis of needle marks and admitting use of heroin in the past) two interpretations (majority & controversial interpretation): o Requires proof of the specific act > not enough to prove that someone has a status that makes it likely to commit an act. (Majority) o It is unconstitutional to punish someone for behavior they cannot control. Under either interpretation, robinson would get off. Controversial argument compares drug addiction to cold and it would be wrong to put someone in jail for a cold. Powell Case (D got drunk and went into public)

Minimum standards of conduct necessary for an order in society.

Most states do not have bystander liability. (Genovese Case) Two main policy arguments: o Practical Line drawing (how many are liable?) BUT FOR Causation but for the omission would the victim have lived? Proof of mental state: hard to prove mens rea for an omission o Principle Personal autonomy Officious intermeddling: nose in other peoples business In Favor Arguments: o Intrusion on autonomy is minimal (no more serious than jury duty) o Possible benefit to society great given limited powers of official law enforcement.

Status Offenses


Marshalls plurality adopts first interpretation of Robinson the problem with status offenses is that they dont require proof of specific act. Concerned about slippery slope (pg 351) saying that people could use irresistible impulse to get off on a murder charge. Fortass dissent adopts second interpretation of Robinson the problem with status offenses is that they may permit punishment for consequential acts. Whites concurrence agrees with Marshall on the evidence, but seems to agree with Fortas as to the meaning of Robinson.

General Rule: Must have an affirmative act to impose criminal liability Except: o No punishment if the act is involuntary o No punishment for certain omission o No punishment for having a statusbut will probably punish for the consequential acts of that status

o o

Dont forget statuses such as schizo or mental defect! Requires proof of a specific act not enough that it is likely one will commit the act.

The Mental Element (Mens Rea): Basic Concepts

Basic: -The state of mind or intent of the defendant at the time of his act -Required to distinguish between inadvertent or accidental acts and acts performed by one with a guilty mind. actus non facit reum, nisi mens sit rea an act does not make a person guilty without a guilty mind Common Law Approach: Mens Rea Specific Intent General intent Malice Strict Liability Levels of Mens Rea: State of Mind Objective or Required Subjective Test? Intent to engage in Subjective proscribed conduct Awareness of acting in Subjective proscribed manner Reckless disregard of a Subjective known risk Conscious commission Objective of proscribed act Mens Rea
Purposely 2.02(a) Knowingly 2.02(b) Recklessly 2.02(c)

Model Penal Code Approach: Levels of Mens Rea: State of Mind Required
Conscious aim to cause the result Practically certain that you will cause the result The individual knows the risk but chooses to ignore it (conscious awareness)

Objective or Subjective Test?

Subjective Subjective Subjective (was D consciously aware of his conduct at the time?) and Objective (gross deviation from a law abiding standard) Objective

Negligently 2.02(d)

Should have known (gross deviation)


Unlawfully mens rea term Intentionally = purposely

Willfully = knowingly 2.02 (8) Maliciously = recklessly Intent = purposely rules and statutory interpretations: Steps: 1. Highlight all mens rea terms and identify them 2. Identify main conduct element o If there is a single mens rea attached to the main conduct element o If naked elements: apply the default rule Collateral Element:

With purpose or intent (bracket and ignore for the purpose of applying mens rea terms
Collateral element something off to the side. Ex. intent to commit a crime therein (interrupts the flow of the statute future act may never happen.)

Mens Rea Continued:

Mistake of Fact
Common Law: Majority approach: Steps: 1. If there is a mens rea term directly attached to the element about which defendant made the mistake, then defendant should be acquitted if the mistake negated the required mens rea 2. If there is no mens rea term directly attached to the element, then the defendant should be acquitted only if the mistake was reasonable (negligence default). Minority approach: Moral wrong doctrine: even if the mistake was reasonable, convict the defendant even if the act committed was immoral viewing the situation in the eyes of the defendant. (when no mens rea is specified for the particular element) (mostly used with sex offenses with minors) Legal wrong doctrine: if the mistake was reasonable convict defendant if viewing the situation defendant believed it to be the act would have ben illegal under a different statute o If so convict more serious statute Model Penal Code Approach: 2.04 Asses Culpability by asking: o Whether defendants mistake negates the mens rea specified for that element If mistake excuses liability but would their mens rea have made them guilty of a less serious crime. Then D is not excused, rather charged with lessor crime. Legal Wrong Doctrine: Applied

Mistake of Law
Mistake of Law or ignorance of law is no excuse. This provides a situation for people to remain ignorant to their legal duties. - Justification: perverse incentives/ no defense b/ utilitarian theories. Common Law and Mistake of Law (Same): When you can use as a defense: o If the statute says ignorance is a defense. o If statute 1 incorporates definition of statue 2, ignorance of statute 2 is allowed. o Reasonable reliance on a statement of law later determined as invalid. Must be contained in statute, judicial decision, administrative order, official interpretation by public officer.

Strict liability Absolute Liability -Punishment for Actus Reus alone. 2.05
o What to look for Narrow: o Only one element imposes strict liability and defendants behavior in general may be wrongful (Regina v. Prince) Broad: o No mens rea at all in statute and defendants behavior may be entirely innocent.

Traditional forms: o Malum in Se crimes and heavy punishments. The act is wrong in itself. o Examples: Felony murder Sex offenses with minors (statutory rape) With particular vulnerable victims we want to crack down and have strict rules. Complete and Partial SL Complete: does not require any proof of a mens rea. Partial: may require mens rea for SOME elements but not others.

Modern Forms (MPC): o Malum Prohibitum and mild in punishment not self evidently wrong. o (less than one year in prison or fine) o FDA regulations, environmental regulations. o More controversial: we deem these actions as socially useful but have wide risks of harm. (if something goes wrong A LOT of people could be affected) o Reasons: Encourage industrial activities which are beneficial on society BUT activities that are inherently dangerous need encouragement for the utmost care. o Pros and Cons justified by utilitarian theory (deterrence) requires high degree of care especially in industries. Deterent for entities to act negligently or recklessly (especially where potential harms are serious) Might encourage over deterrence (doctor situation) We dont want to discourage socially

in every situation! Lessor Crime.

favorable behavior. o Only way to get out of strict liability is through jury nullification: jury disregards judges instructions and forms their own opinion about the law.

Remedies: tend to be mild fines rather than prison sentences. Less of a stigma attached to it. (justification: fear of over deterrence. Were hesitant to punish someone who doesnt have the mens rea requisite for the crim).

General Principles o Causation need only be proven if
o there is a result element. Anything with attempted. Will not need causation proved. Intentional Crimes: MPC approach: require knowingly or purposely mens rea. Causation will be easy to prove when D kills the person they intended to kill and in the manner they intended to do it in. More difficult: you kill someone OTHER than who you intended or the death occurred in a way other than you intended. Unintentional Crimes: MPC approach: recklessly and negligently Causation will be easy to prove when Ds risky behavior made the death likely. More difficult: driving recklessly, your engine makes a loud sound, scares a worker, he drops a block and kills someone. (The connection here is attenuated) (persons reckless act creates a risk but person dies from other factors) Why use causation at all? To justify treating an attempted murderer from an actual murderer. We care more about retribution because the person who actually committed the physical harm needs to redeem themselves against community sentiment which is harsher for the person who actually succeed in the act. Sowles favorite argument: need for retribution for the community outrage. Policy reason: you can show a mental culpable state in the person who actually committed the act and Actual Cause Factual Cause (CL and MPC 2.03(a)) o but-for actus reus attaches to the result. o the harm would not have been caused if not but for the act of the D o focuses more on the actus reus and the actual physical connection of Ds actions to the result that they caused. o Concurrent causation: Both actors will be liable. o Accelerating en inevitable result (someone is going to die but the person does it immediately instead) Would the defendant died WHEN or later than Ds actions? Intervening Causes (at common law MPC does not follow this approach) First identify what action was the intervening cause. Dependent: the harm caused only took place as a direct consequence of Ds actions. Rule: it does not break the causal chain (D is liable). The harm is dependent upon the action.
Exception: if the intervening person (ex. Surgeon) does not act negligently but intentionally, then this relieves the D. o D shoots victim and surgeon who works on victim is negligent and victim dies. Only reason surgeon was acting was because of Ds action of shooting victim. o We dont use the foreseeability question here. o

Proximate Cause Legal Cause o More narrow zone of danger for crim
than torts. cut the foreseeable chain shorter (do this deliberately b/ of criminal stigma) The manner in which the crime was done is foreseeable. (person left on road
car truck foreseeable; airplane landing not foreseeable)

Independent: if the occurrence would have

occurred despite the prior actions to the original harmful actions that took place.
Shoot victim, victim gets put in ambulance, then car hits ambulance on way to hospital. o Here, when we focus on the action of the intervening cause. Was the person (driver who hit the ambulance) in hypo above a direct result to Ds conduct. No, he was probably headed to work. o We ask, was it foreseeable from the manner in which it occurred? If yes, then proximate cause, if not, then not liable. (objective standard) o

o o

Main difference between the two: was it foreseeable or not?

Easier to show causation in torts than criminal law, because in criminal law there is a shorter chain of foreseeability allowed. o Brings in mens rea and moral culpability because the consequences of punishment are much harsher. o Retribution: less likely that the D has poor moral culpability when the acts are so far disconnected from the consequence of the act. o MPC APPROACH section 2.03 o Model penal code doesnt use proximate o Instead we only deal with causation when there is a result element in the statute. Therefore, causation is a sub-set of actus reus. The result happens because Ds prohibited act. o Which mens rea attaches to the result element? o If this is purposely or knowingly o Similar to how it would work out under common law, but you dont use the language proximate cause. You try to tie mens rea to the conduct. Is it too remote? Is the manner of the conduct foreseeable to cause the intervening cause results? o Causation analysis: mens rea to result element, and if there seems to be an intervening cause: do the foreseeablility test. (you do not have to do dependent and independent) o Transferred intent: still liable under MPC AND Common Law. o Remoteness or accidental

on the other hand would like to believe that the person who didnt complete the act changed their mind last minute/second.

nature: theres still liability if the D sets the chain of events in motion. 2.03 (2) (b) ask whether the intervening circumstances were too remote or accidental to have a bearing on Ds liability? (Terms of foreseeability)

Common Law
Murder: unlawful killing of another human being with malice of forethought. Four meanings: 1. Intent to kill 2. intent to inflict serious bodily injury 3. extreme recklessness (jury question) disregard for human life o disregard for human life 4. Felony murder o Intent to commit felony with death of a person during the commission of the crime o Only need intent for the underlying felony o STRICT LIABILITY FOR THE CONSEQUENT MURDER. Manslaughter: Voluntary o Killing that would otherwise be murder but is done in the heat of the passion Must be adequate provocation with no cooling time ex: victim of physical assault, or infidelity

Homicide: Modern Statutory Form

Murder: unlawful killing of another human being with malice of forethought. First degree: premeditation and deliberation and some types of felony murder Second degree: default rule all other types of murder Some states have manslaughter Felonies: Burglary, Arson, Robbery, Rape, Kidnapping

Model Penal code 210.1

Murder: killing done purposely, knowingly or with extreme recklessness (unintentional with respects to the
murder) 210.2 (2.02 mens rea terms)

o Felony Murder: person is guilty of murder if she kills another during the commission of a felony.
Prove mens rea for the underlying crime THIS IS A REBUTTABLE PRESUMPTION! Therefore, would be extreme recklessness for murder. Policy: brings deterrence. Someone committing a felony is engaging in behavior that is risking life.

Manslaughter: 1. Killing done with ordinary recklessness. 2. Killing done that would otherwise be murder but is a result of extreme mental or emotional disturbance for which there is reasonable explanation for excuse (similar to the heat of passion). here you have to ask: would a reasonable person have their passions enflamed?

Robinson Case o Killing done with ordinary Robinson arrested for status offense for being addiceted to the use of recklessness or criminal narcotics Two ways to read thisnegligence. gross case: 1. less controversial position what the majority faulted the CA statute for is that it did not require a specific actus reus. you cannot take a shot cut with trying to prove an actus reus 2. more controversial position it is unconstitutional to punish someone for behavior they cannot control. (like having a cold, being a leper, etc.)


Powell v. Texas Guy gets arrested for being drunk in public. It is argued that he cant be convicted because he wasNegligentand it was an irresistible impulse to an alcoholic Homicide: killing done with gross negligence (dont have to prove that get drunk. the person voluntary box. an irresistible impulse is put into the knew the risk they were running) - otherwise, people would This canto get away with things such as murder, be able be used for deterrence. Debate: whether ANY murder conviction should be drunk driving, etc if acquitted on being an alcoholic. allowed for the negligent manner. (this is why its broken out into a separate category)

No cooling time here