Day 1: Introduction (1-9); Criminalization
v Essence of punishment: expression of community’s hatred, fear, or contempt for the convict which alone characterizes physical hardship
Ø Conduct which will incur a formal and solemn pronouncement of the moral condemnation of the community.
v Legislature makes laws in advance of their commission with threats of condemnation
Ø Other agency carries out threats.
Ø Legislature doesn’t have unlimited power,
§ No cruel and unusual punishment, no ex post facto punishment, persons may not be deprived of life, liberty or property without due process of law.
v Procedural context
Ø Crime reported to police à arrest (if sufficient evidence and investigated by police) à preliminary hearing where judge decides if arrest is justified à grand jury indicts accused à pretrial motions à guilty/not guilty plea à trial
Ø Entitled to trial with jury of peers.
Ø Texas v Lawrence
§ Gay couple together having sex, report of firearms, police come in- prosecuted for sodomy. Found guilty, appeal saying they have 14th amendment due process clause.
§ Appeal because they don’t want to be labeled as criminals
§ By outlawing sodomy, they outlaw homosexuality
§ Some acts should not be illegal because they people deserve our respect.
Day 2: Purposes of Punishment (30-48); Distribution of Punishment (48-51)
v Principles of punishment
Ø Justification of punishment is inseparable from justification of threats of punishment
§ Can’t have dry threats all the time
§ Forward looking, punishment is justified because of benefits it can cause
§ Value of pleasure or pain determined by:
· Its intensity, duration, certainty/uncertainty, propinquity or remoteness
§ Punishment shouldn’t be inflicted if:
· It is groundless, inefficacious, unprofitable, needless
· General deterrence
· Individual deterrence
· Incapacitation and other forms of risk management
§ Based on principle that people who commit crimes deserve punishment, backward looking.
§ Moral culpability is sufficient and necessary cause to punish
§ Negative retributivism- guilt is necessary condition of punishment, innocent should never be punished.
· never punish more than they deserve
§ positive retributivism- guilt is both necessary and sufficient condition for punishment.
· never punish less than they deserve
§ assaultive retributivism- treat criminals like noxious insects to stomp on
§ protective retribution – society has right to punish wrongdoers, criminals have right to be punished. (pay debt back to community)
v Who should be punished
Ø Queen v Dudley & Stephens
§ On row boat, Dudley and Stephens come up with plan to eat parker to live, Brooks won’t do it. Dudley and Stephens found guilty, Brooks not.
§ Want to reinforce people’s moral internal inhibitions so we can punish it to highlight the wrongdoing.
Day 3: Gradation of Punishment (51-62); Qualitative Proportionality (69-81)
v How much and what punishment should be imposed
Ø People v Superior court (Du)
§ Korean (Du) owns store, black girl comes in and accused of stealing orange juice, there were previously acts of violence in store, Du pulls out gun and shoots black girl
§ Sentenced to 10 years prison (6 manslaughter, 4 use of gun in felony)
§ Judge suspends sentence and puts Du on probation
· Questions to ask on sentencing (the objectives of sentencing)
¨ protect to society
¨ punish def for committing a crime?
¨ Encourage def to lead law abiding life
¨ Deter others
¨ Isolate def so she can’t commit more crimes?
¨ Uniformity in sentencing?-
Ø Uniformity in sentencing impossible due to factual differences in crimes
· Judge finds great provocation, (was her over reaction understandable? Yes)
v Proportionality of Punishment
Ø Coker v Georgia
§ Rapist escapes mental hospital breaks into home and rapes woman. Sentenced to death. Claims punishment is against 8th amendment,
¨ Determined death is cruel and unusual and disproportionate
¨ Can’t punish more than they deserve even if that will prevent future wrongdoing.
¨ Capital punishment is always a disproportionate punishment for rape.
Ø Kant- No likeness or proportion between life, however painful and death,
Ø Bentham- want to set punishment that will deter most of the criminals,
§ Four subordinate designs a utilitarian considers
· Prevent all sorts of offenses whatsoever
· Induce him to commit an offense less mischievous, rather than more mischievous
· Dispose him to do no more mischief than is necessary to his purpose
· To prevent it at as cheap a rate as possible
§ Proportion of punishments to be governed by:
· Value of punishment must not be less than what is sufficient to outweigh that of the profit of the offence.
· The greater the mischief of the offense, the greater is the expense, which it may be worth while to be at, in the way of punishment
· Where two offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less
· The punishment should be adjusted in such manner to each particular offence, that for every part of the mischief there may be a motive to restrain the offender from giving birth to it
· The punishment out in no case to be more than what is necessary to bring it into conformity with the rules here given.
§ Marginal Deterrence- Set up punishments so if going to do a crime they do lesser one.
· Add death penalty to rape- no incentive not to kill
Day 4: Quantitative Proportionality (81-91); Prospectivity (92-105)
Ø Ewing v California
§ Man with 2 prior convictions sentenced to 25-life because of 3 strike rule
¨ Court says that this is NOT disproportionate and can be sentenced to long term
¨ Constitution does not require strict proportionality b/w crime and punishment, only forbids GROSS disproportionality.
Ø Court says his sentence is justified by state’s public safety interest in incapacitating and deterring recidivist felons
¨ Court Lists 3 factors for determining if the sentence is disproportionate to crime
Ø The gravity of the offense and the harshness of the penalty
Ø The sentences imposed on other criminals in the same jurisdiction and
Ø The sentences imposed for commission of the same crime in other jurisdictions.
§ Courts invoke strict proportionality in death cases, not prison time
§ 2 kinds of proportionality
· Cardinal- proportionality in an absolute sense- severity of punishment must match severity of crime
· Ordinal- ranking crimes in terms of their relative seriousness
v Principle of Legality
§ No crime without law
§ No retroactivity (can’t commit crime if law doesn’t exist)
§ Generality- rules announced apply to everyone
§ Clarity- non vagueness, specificity, give people fair notice of expectations
§ Made by legislature (not courts)
§ Rule of lenity- any irresolvable ambiguity in a criminal statute should be interpreted in favor of the defendant.
Ø Requirement of previously defined conduct
§ Commonwealth v Mochan
· Mocahn (def) calls woman up multiple times a week threatens her with sodomy and adultery. There was no law against this
¨ He is still found guilty because common law is broad enough to punish- “any act which directly injures or tends to injure public”
§ Keeler v Superior Court
· Woman pregnant, keeler says I’m going to stomp baby out of you and does. Baby was dead when she got to hospital. Law says murder is for “human bei
highway and then arrest him for public intoxication.
§ Court holds that he is not guilty because he did not voluntarily appear on the street, he was taken there by police officers and therefore not guilty.
§ Rule: if there is a break in voluntary acts that is causation he should not be guilty. Time 1 –get drunk à time 2 police take him outside (involuntary) à Time 3 gets arrested.
· Time 2 not voluntary and therefore not guilty.
Ø State v Utter
o Drunk/unconscious dad stabs son and he says it was instinct from war training. Conditioned response defense can work, but…
§ The court says not here- an unconscious person is not responsible for their actions, however since his actions were brought on by his own VOLUNTARY act of getting drunk he can’t use that defense.
Day 8: Omissions (136-48)
Ø Omissions/Negative Acts
o People v Beardsley
§ Man and mistress get drunk she takes morphine pills and passes out. He puts her in another room and she dies. Convicted of manslaughter but appeals
· Court says that he does NOT have a legal duty to protect the mistress. A moral obligation can’t constitute a legal duty, and legal duty is necessary.
o Legal Duty established by:
§ Statute imposing duty
§ Status relationship w/ another
§ Where one has assumed a contractual duty to care for another
§ Where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.
o Absent special circumstances, no duty to disclose another person’s plans to commit a crime.
Ø Distinguishing acts from omissions
o Barber v Superior Court
§ Family gives doctor okay to take man off life support, then the doctors are charged with murder.
· The court says that this is not an affirmative act but omission from further treatment. This wasn’t a killing- it was a withdrawl of support.
o Moral equivalent argument—life support is the same as manually giving cpr. (Moral equivalent of omission)
· They had consent and therefore this omission was legal.
Ø Social harm
o Social Harm is the very essence of crime.
o Endangering or destruction of group or state or individual interest which is deemed socially valuable
§ Loss experienced by society in loss of feeling of security
o 2 types of offenses
§ Result crimes- murder
§ Conduct crimes- drunk driving
· Can happen at same time—operating a vehicle in a manner causing death
§ Attendant circumstance – describes or qualifies kind of result/conduct that is prohibited. Ex: driving drunk
· Conduct (driving) not illegal, but circumstance (drunk) makes it so.
Day 9: Mens Rea (149-70)
Ø Nature of Mens Rea
o Meaning guilty Mind, a guilty or wrongful purpose or criminal intent
o Broad definition/culpability meaning-
§ Guilty of a crime if he commits the social harm of the offense with ANY morally blameworthy state of mind
o Narrow Definition/elemental meaning-
§ Mental state of defendant must have had with regard to the social harm elements set out in the definition of the offense