1. THE JUSTIFICATION FOR PUNISHMENT
A. Why do we punish?
Retribution – defendant did something wrong, so deserves to be punished; defendant gained a benefit and needs to be re-adjusted to society
Deterrence – it’s good for society to increase security, and deter defendant from doing it again after he is released, other criminals deterred by the effect of the punishment
Specific (deter the individual criminal)
General (deter the public)
Rehabilitation –to try to “teach” defendant how to conform to society’s norms
Incapacitated –to prevent the specific offender from committing the crime during that time
B. Retributivism – we are justified in punishing b/c the offender deserves it and the moral culpability of the offender gives society the duty to punish (paying debt; not a benefit)
i. when you do something wrong, you incur a debt that needs to be paid back.
(punishment restores the balance – a moral debt)
ii. Backward looking (ex-post)
1) Looks at what was done, and looks at what punishment would balance the wrong
2) Requires:
a) wrongdoing
b) blameworthiness
3) For example, killing is always “wrong”, but there are a variety of circumstances that make it not blameworthy: would only punish if it was blameworthy
iii. Criticism of Retributivism
1) Intentional infliction of pain is senseless and even cruel if it does no good.
2) Glorifies anger and legitimizes hatred.
3) It is founded on emotions rather than on reason.
C. Consequentialist and Utilitarian
a) Utilitarians are one breed of Consequentialists. They seek to maximize pleasure and lessen pain, where consequentialists look to maximize anything.
a. Both crime and punishment are unpleasant and undesirable.
b. Future looking, vs. backwards looking for retributivism
c. Utilitarians believe that pain inflicted by punishment is justifiable, if, but only if, it is expected to result in a reduction in the pain of crime, that would otherwise occur.
b) Prevention of crime (Deterrence)
a. General prevention
i. By fear (General deterrence)
1. D is punished in order to convince the general community to forego crim conduct
ii. By respect/habit – law instills norms
b. Specific prevention
i. By fear (specific deterrence) – this specific defendant.
ii. Incapacitation – put in jail to keep out of society.
1. Should we lock up a “bad kid” at age 3, since it’s been proven that bad kids grow up to be bad adults?
iii. Reform/rehabilitation
1. Same goal (to reduce future crimes), but say it is for their own good – “fix you”
a. Ie. Psychiatric care, therapy for drug addiction, or training
2. To help us – sounds more like punishment.
c) Common criticism of Utilitarianism
a. They use people as means to an end. One person used to help society.
i. Response: this one person is a part of society, so is also benefiting.
b. Can punish a completely innocent person.
i. In theory, this may happen, but not so much in the real world.
2. ELEMENTS OF A CRIME
· For a defendant to be charged with a crime, the prosecution must prove all the elements of the crime:
o Start first with the statute given on the exam or the common law elements of the crime:
· Elements of a crime:
o Actus Reus – “What acts must D have performed to be guilty of the crime?”
o Attendant Circumstances – “What attendant circumstances must have existed (usually at the time of the conduct) for the acts to constitute the crime?”
§ Some crimes require mens rea to the AC – that D was aware of the existence of the circumstances.
§ Different than result, where D had to have caused the result, but not AC.
o Mens rea – What state of mind must the defendant have had to be guilty?
o Result – Is there any particular result that must be shown, i.e. something that must have occurred as a result of the defendant’s acts?
§ Causation problem
A. Actus Reus
Conduct Requirement can be met by:
Positive act
Failure to act/omission
Possession
Issue/Scope:
In order to determine if the conduct element of a crime has been met, D must have committed a criminal act.
Liability is usually based upon an affirmative physical act by D, but under some circumstances, liability can rest on an omission or a failure to act.
On the other hand, the law does not punish mere criminal thoughts.
Look for an actus reus problem anytime you have one of the following situations: 1) D has not committed physical acts, but has “guilty” thoughts words, states of possession or status; 2) D does an involuntary act; 3) D has an omission, or failure to act
Rule:
Common Law:
Affirmative acts: When criminal liability is based on an affirmative act (as opposed to an omission), there must be a showing that the defendant made some (1) conscious and (2) volitional (3) movement.
**Volitional – don’t confuse with “voluntary” as described for defenses, such as duress or insanity (when acting out of duress or insanity, sometimes courts will say the actions of D were involuntary). For actus reus, involuntary actions are reflexes, unconscious movements during a seizure, while unconscious or asleep. Note: if someone grabs your arm and pushes into to hit someone else, this is not an “act” – either voluntary or involuntary!
Example in Dressler – When D’s arm strkes V as the result of an epileptic seizure, we sense that D’s body, but not D the person, has caused the impact. The movement of D’s arm is similar to a tree branch bending in the wind and striking V. When D “wills” her arm to move, however, we feel that D, and not simply her body, is responsible for V’s injury. Her “acting self” is implicated.
Habitual acts – although sometimes we aren’t aware of them – like on “autopilot” mode when driving to school everyday. These are voluntary acts, however.
Negative Acts (acts of omission): General Rule: No liability for omissions. Defendant’s omission will support a finding of criminal liability only where it is shown that (1) D was under a legal duty (2) D had the necessary knowledge, and (3) it would have been possible for defendant to act.
Possession: Possession crimes do not necessarily dispense w/ the voluntary act requirement, but most courts like the MPC require that D knew of the possession.
Some courts dispense with the knowledge requirement where the penalty is not severe, and make it instead that D should have known of the possession.
MPC §2.01: Requirement of Voluntary Act; Omission as basis of liability; Possession as an Act
Voluntary act or omission to perform an act of which he is physically capable
NOT voluntary acts: (defined in the negative)
Reflex or convulsion
A bodily movement during unconsciousness or sleep
Conduct during hypnosis or resulting from hypnotic suggestion
A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual
No liability for omissions unless:
If the law defining the offense provides for it; or
If the duty to act is otherwise imposed by law
Possession is an act if:
Possessor (1) knowingly procured or received the thing possessed
Or (2 possessor was aware it was in his control for a sufficient amount of time to have been able to terminate possession
Public Policy – Reasons for not punishing involuntary acts:
Utilitarian – cant deter if behavior cant be changed and b/c benefits of punishment don’t outweigh determinants
Retributive – as a result of involuntary movement, don’t deserve punishment
Analysis:
Affirmative act?– Conscious and volitional movement
Conscious – Aware of and awake. Also, defined in the negative, i.e. if D was unconscious then he can’t be criminally liable ordinarily.
Exceptions: D caused the unconsciousness or knew that his unconsciousness was likely to occur (i.e. epileptic drives a car).
Policy – Liability is not imposed for the act committed while unconscious (running someone over while having seizure), but for the earlier act committed while fully conscious (driving with knowledge that a seizure may occur)
Be careful, the consciousness is controlled by the law of other defenses in criminal liability, such as insanity or intoxication.
Volitional – Usually described in the negative (what isn’t voluntary – i.e. reflexes, convulsions, movements during sleep and conduct during hypnosis are not volitional)
Movement – usually the act is a physical movement of D’s body (like pulling the trigger)
Omissions
Legal duty requirement – Can arise through:
(1) Statutory duties
I.e. the statutory obligation to file tax returns
(2) Duties based upon relationship of parties,
I.e. parents have a duty to prevent physical harm to their children and a spouse has a similar duty to protect his wife. (many of these are embodied in statutes now)
(3) Duties arising from voluntarily undertaking task
One who is not otherwise legally obligated to render aid to another, but who voluntarily undertakes to render such aid has a duty to use reasonable care in so doing.
(4) Duties based on creation of peril
One who wrongfully or even accidentally places another in a position of danger comes under a duty to aid that person.
Faulty action creates peril: duty (you push someone into the pool);
Faultless action creates peril: duty (walk into child through no fault of own, slip);
Faultless non-action creates peril: no duty (car not having a chance to break);
Pure bystander – no duty (if you see wounded person in the road you have no legal duty to act)
(5) Duties created from contract
Only in some situations – where D was under a contractual duty to protect or care for others (i.e. lifeguard)
**Polic
d the illegality of euthanasia – so ct made this an omission. This rule is limited to doctors in med treatment cases. Rule: Was it an act or omission? If omission, was there a duty? Then look to see if the med treatment would be effective (med ?).
Airedale NHS Trust v. Bland – It is unlawful for a doctor to give a patient a lethal drug to end his life (euthanasia), but it is not unlawful for him to withhold artificial feeding and antibiotics- omission. As long as he does not commit a breach of duty for the withholding.
B. MENS REA (Basic Conceptions)
Issue/Scope:
There must be mens rea for each material element of a crime (conduct/AR, attendant circumstances, and result).
Not required for non-material elements: venue, statute of limitations, jurisdictional elements or to any other matter similarly unconnected with (i) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or (ii) the existence of a justification or excuse for such conduct;
Rule:
Common Law:
Specific Intent – Intent to do some further act or cause some additional consequence (usually, the statute will say “with the intent to…”) or the statute will contain 2 mens reas.
General Intent – Intent to commit the act constituting the crime (and for some crimes, knowledge of attendant circumstances)
Malice – Commission of a volitional act w/o legal justification (not carefully defined)
Strict liability – No requirement of mens rea
MPC: §2.02 – Must act purposely, knowingly, recklessly or negligently
Purposely – Conscious desire to engage in proscribed conduct
Knowingly – Awareness that conduct is of a particular nature or will cause a particular result (practical certainty)
Recklessly – Consciously disregarding a substantial and unjustifiable risk
Negligently – Failure of being aware of a substantial and unjustifiable risk, that D should have been aware of.
Public Policy: Why have a mens rea requirement?
Retributivists – Generally, only conduct that is engaged in “intentionally” is regarded as morally wrong. Punishment is about people being culpable – those that aim at doing wrong deserve punishment and we don’t want to attach the stigma of being a wrongdoer to someone who has acted w/o a culpable state of mind.
Utilitarians- If people don’t know what they are doing, you can’t deter them. The requirement of mens rea narrows the focus to those who pose a serious danger to others and helps to assure that society will be protected from those most likely to do it harm. Person who has acted accidentally is harmless and does not need reformation (response – keep people safe from clumsy people or punishment may influence them to change their lifestyle or avoid activities that may result in injury to others)
Cons – A higher bar to conviction – a mental state is a high standard for the prosecution to prove beyond a reasonable doubt. A lot of people that do have the mens rea do get off, and this sends a message to the would-be wrongdoers that may be able to get away with it through this legal loophole.
Analysis:
Common Law:
General Intent – Usually, general intent is the mental element of any crime that does not by its terms require specific intent and for which a showing of criminal negligence is not sufficient. Example: Rape
Intentionally – At CL, usually a person “intentionally” causes the social harm of an offense if: (1) it is his desire to cause the social harm, (2) he acts with knowledge that the social harm is virtually certain to occur as a result of his conduct.
Can be inferred by the fact that D voluntarily engaged in the conduct.
Specific Intent – there must be an intent to do some further act or cause some add’l consequence.
Example: Burglary – requires an intent to commit a felony in the premises, although actually committing the felony is not part of the actus reus of burglary. Also: larceny, attempt, solicitation
If there are 2 different mens reas, it’s usually specific intent
Cannot be inferred by the actus reus; specific proof is required.
