THEORY, SOURCES, AND LIMITATIONS OF CRIMINAL LAW
Theories of Criminal Punishment
Utilitarians consider the effect of a form of punishment in terms of both general deterrence and specific (or individual) deterrence. When the goal is general deterrence, punishment is imposed in order to dissuade the community at large to forego criminal conduct in the future. When the goal is specific deterrence, punishment is meant to deter future misconduct by an individual defendant by both preventing him from committing crimes against society during the period of his incarceration (incapacitation), and reinforcing to him the consequences of future crimes (intimidation).
[2] Rehabilitation – Another form of utilitarianism is rehabilitation (or reform). Examples of rehabilitative “punishment” include: psychiatric care, therapy for drug addiction, or academic or vocational training. [B] Retributivism – Under a retributive theory of penal law, a convicted defendant is punished simply because he deserves it. There is no exterior motive such as deterring others from crime or protecting society – here the goal is to make the defendant suffer in order to pay for his crime. Retributive theory assigns punishment on a proportional basis so that crimes that cause greater harm or are committed with a higher degree of culpability (e.g, intentional versus negligent) receive more severe punishment than lesser criminal activity. [C] Denunciation (Expressive Theory) – The denunciation theory – which holds that punishment is justified as a means of expressing society’s condemnation of a crime – has both utilitarian and retributive components. Under a utilitarian theory, denunciation is desirable because it educates individuals that the community considers specific conduct improper, channels community anger away from personal vengeance, and serves to maintain social cohesion.Under a retributive theory, denunciation serves to punish the defendant by stigmatizing him.Sources of Criminal Law
[A] Common Law – Common law isjudge-made law. Even when superceded by statutory law, common law may serve to interpret ambiguous statutory terms. [B] Criminal Statutes – Today, statutory law is the prevailing source of criminal law and essentially has replaced common law. Although most states have abolished common law crimes, a few have enacted “reception” statutes, expressly recognizing common law offenses when statutory law does not provide a punishment for such offense. In effect, such a statute “receives” the common law offenses in place at the time of the statute’s enactment.Generally speaking, statutory law classifies a crime as a felony or a misdemeanor, both of which may be subdivided into degrees. A felony is punishable by death or imprisonment in a state or federal prison. The maximum punishment for a misdemeanor is a monetary fine, incarceration in a local jail, or both. Some jurisdictions also have an additional classification of “violation” or “infraction” for which only a monetary fine is authorized.
[C] Model Penal Code – Although the Code – published by the American Law Institute – is not the law in any jurisdiction, it stimulated adoption of revised penal codes in at least thirty-seven states.Although some state legislatures have adopted only small portions of the Model Code as their own, other jurisdictions (including New Jersey, New York, Pennsylvania, and Oregon) have enacted many of its provisions. Courts, on their own, sometimes turn to the Model Code and its supporting commentaries for guidance in interpreting non-Code criminal statutes.Constitutional Limitations on Criminal Law
Various provisions of the United States Constitution impose limits on federal and state legislative action. A state legislature is also limited by its own state constitution, which may place greater restrictions on it than does the federal Constitution.
[A] Limits on Federal Action – The “Bill of Rights” restricts the power of the federal government in its relationship to individuals. [B] Limits on State Action – The Fourteenth Amendment to the United States Constitution imposes limits on stategovernment. The 14th Amendment:(1)
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prohibits states from making or enforcing “any law which shall abridge the privileges or immunities of citizens of the United States”
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“deprive any person of life, liberty, or property without due process of the law;” or
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“deny to any person within its jurisdiction the equal protection of the laws.”
Legality
[A] Common Law – A person may not be punished unless his conduct was defined as criminal at the time of commission of the offense. This prohibition on retroactive criminal lawmaking constitutes the essence of the principle of legality.There are four interrelated corollaries to the legality principle:
(2)
1.)
Criminal statutes should be understandable to reasonable law-abiding persons. A criminal statute must give “sufficient warning to men of common intelligence as to what conduct is unlawful.” A person is denied due process of law if he is convicted and punished for violation of a statute that lacks such clarity. LEX CERTA
2.)
Criminal statutes should not delegate basic policy matters to police officers, judges, and juries for resolution on an ad hoc and subjective basis.
3.)
Judicial interpretation of ambiguous statutes should “be biased in favor of the accused” (the lenity doctrine).
A) lex scripta – necessity of the law being written [fair notice to people]
B) lex certa – law should be certain (not vague)
C) lex stricta – law should be strictly interpreted and not use of analogy
D) lex praevia – new law shall not be applied to past acts
MENS REA
Common Law Principle and Definition
Simply put, “mens rea” refers to the mental component of a criminal act. However, there is much ambiguity inherent in this term. The doctrine has been defined in two basic ways:
[A] “Culpability” Definition of “Mens rea” – In the early development of the doctrine, many common law offenses failed to specify any mens rea. Mens rea was defined broadly in terms of moral blameworthiness or culpability. Thus, at common law and in jurisdictions that still define the doctrine broadly, it was and is sufficient to prove that the defendant acted with a general culpable state of mind, without the need to demonstrate a specific state of mind such as “intentionally,” “knowingly,” or “recklessly.” [B] “Elemental” Definition of “Mens rea” – Much more prevalent today is a narrow definition of mens rea which refers to the particular mental state set out in the definition of an offense. In this sense, the specific mens rea is an element of the crime. Note that a person can be culpable in that he was morally blameworthy yet lack the requisite elemental mens rea.Specific Mens rea Requirements
[A] “Intentionally” – A person “intentionally” causes the social harm of an offense if: (1) it is his desire (i.e., his conscious object) to cause the social harm; or (2) he acts with knowledge that the social harm is virtually certain to occur as a result of his conduct.The doctrine of “transferred intent” attributes liability to a defendant who, intending to kill (or injure) one person, accidentally kills (or injures) another person instead.The law “transfers” the defendant’s state of mind regarding the intended victim to the unintended one.
[B] “Knowingly” or “With Knowledge” – Sometimes, knowledge of a material fact – an attendant circumstance – is a required element of an offense. A person has “knowledge” of a material fact if he is aware of the fact or he correctly believes that it exists. Most jurisdictions also permit a finding of knowledge of an attendant circumstance when the defendant is said to be guilty of “wilful blindness” or “deliberate ignorance,” i.e., if the defendant is aware of a high probability of the existence of the fact in qus of the offense—in fact, each ingredient of the offense—with a culpable state of mind, as set out in the specific statute.
Thus the Code:
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eschews the “culpability” meaning of “mens rea”;
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discards the common law distinction between “general intent” and “specific intent”;
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limits mens rea to four terms: “purposely”; “knowingly”; “recklessly”; and “negligently”;
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requires application of mens rea to every material element of a crime, including affirmative defenses.
[B] Mens Rea Terms [1] “Purposely” – In the context of a result or conduct, a person acts “purposely” if it is his “conscious object to engage in conduct of that nature or to cause such a result.”[MPC § 2.02(2)(a)(i)] A person acts “purposely” with respect to attendant circumstances if he “is aware of the existence of such circumstances or he believes or hopes that they exist.” [2] “Knowingly” – A result is “knowingly” caused if the defendant “is aware that it is practically certain that his conduct will cause such a result.” [MPC § 2.02(2)(b)(ii)] With “attendant circumstances” and “conduct” elements, one acts “knowingly” if he is “aware that his conduct is of that nature or that such [attendant] circumstances exist. Furthermore, the Code states that knowledge is established, if “a person is aware of a high probability of . . . [the attendant circumstance’s] existence, unless he actually believes that it does not exist.” [MPC § 2.02(7)] [3] “Recklessly” and “Negligently” – The Code provides that a person acts “recklessly” if he “consciously disregards a substantial and unjustified risk that the material element exists or will result from his conduct.” A risk is “substantial and unjustifiable” if “considering the nature and purpose of the defendant’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.” [MPC § 2.02(2)(c)]A person’s conduct is “negligent” if the defendant “should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.” [MPC § 2.02(d)] The definition of “substantial and unjustifiable” is the same as that provided for in the definition of “recklessness,” except that the term “reasonable person” is substituted for “law-abiding person.”
As in common law, “negligence” and “recklessness,” therefore, require the same degree of risk-taking: “substantial and unjustifiable,” and the difference between them lies in the fact that the reckless defendant “consciously disregards” the risk, whereas the negligent defendant’s risk-taking is inadvertent.
[C] Principles of Statutory Interpretation – A single mens rea term — of whatever specific type — modifies each actus reus element of the offense, absent a plainly contrary purpose of the legislature.ACTUS REUS
General Principle
“Actus reus” refers to the physical aspect of the criminal activity. The term generally includes (1) a voluntary act (2) that causes (3) social harm.
Voluntary Act
[A] General Rule – Subject to limited exceptions,a person is not guilty of a crime unless his conduct includes a voluntary act.Few statutes defining criminal offenses expressly provide for this requirement but courts usually treat it as an implicit element of criminal statutes.