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Criminal Law
Rutgers University, Newark School of Law
Francione, Gary L.

The Act Requirement
1.         Generally: There are two requirements of a criminal offense: an actus reus (bad act) and a mens rea (guilty mind). Punishment is not proper if both these elements are not present. The act must be voluntary and the criminal usually must have notice that it is bad (the idea of “legality”). The absence of an act leaves only thoughts and people can not be punished for their thoughts alone, b/c thoughts are a private sanctuary, are poor predictors of actual conduct, it is impossible to find out if someone actually has evil thoughts, and without an act there is no harm.
2.         Act requirement: Proctor v. State – D was punished for “keeping a place with intent to sell liquor.” Conviction overturned. Rule: to constitute a crime there must be both intent to commit a bad act and some commission or omission of the bad act, intent alone is not sufficient.
Intent to commit a crime is not indictable, and although the intent is, in general, of the very essence of a crime, some overt act is the only sufficient evidence of the criminal intent
To constitute a crime there must be some omission or commission
Thoughts are not punishable; only past action (verbal or physical) that is rationally related to the criminal conduct in question is punishable.
3.         THE REQUIREMENT OF VOLUNTARINESS:to be blameworthy, the act must be the result of a conscious decision. Acts can be involuntary for several reasons:
a.      Unavoidable Acts:
i.        People v. Newton – D was convicted under NY gun possession laws when he got on flight in the Bahamas to Luxembourg, but the pilot diverted to NYC when it was found that he had a gun. Upon landing, he was arrested for possession of a handgun. The App. Div. overturned the conviction b/c D did not voluntarily come to NY, he was going to Luxembourg.
ii.      Martin v. State – convicted of public intox when the cops took him from his house outside to the road where he became boisterous. The conviction was overturned the court said that he was not voluntarily on the road (in public) b/c the cops took him there.
b.      Unconscious Acts:
i.        People v. Grant – D convicted of battery and obstructing a P.O. when he attacked a cop. D had psychomotor epilepsy and argued that his acts were the result of automatism and thus not voluntary. The court remanded to determine if he had recklessly caused the autonomic seizure. Rule: Ordinarily, an autonomic seizure that results in a criminal act is not considered voluntary for purposes of a crime, however, it the D knew of his susceptibility to such seizures and recklessly placed himself in a situation that would make one occur, he will be criminally liable (the act is the conscious behavior that caused the seizure to be likely). (c.f. MPC § 2.01(1) not all acts in the sequence need be voluntary).
ii.      People v. Decina – epileptic had seizure while driving a car and was convicted b/c he knew that he was at risk and drove anyway.
iii.    The King v. Cogdon – sleepwalking mother kills daughter, court held that the killing done in a somnambulistic state was not voluntary.
iv.    People v. Decina – epileptic had seizure while driving a car and was convicted b/c he knew that he was at risk and drove anyway.
v.      The King v. Cogdon – sleepwalking mother kills daughter, court held that the killing done in a somnambulistic state was not voluntary.
Note: To be voluntary the act must be a product of free will unless involuntary conduct is done recklessly or knowingly which is brought about by the involuntary conduct
Model Penal Code: § 2.01(2) defines several types of “acts” that are not considered voluntary:
(a)      a reflex or convulsion,
(b)     a bodily movement during unconsciousness or sleep,
(c)      conduct during hypnosis or resulting from hypnotic suggestion,
(d)     a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.
Bu t remember, not all acts need voluntary. §2.01(1)
4.         THE PROHIBITION AGAINST STATUS CRIMES: the 8th Amendment (“cruel and unusual punishment”) has been interpreted to prohibit punishment for merely having a particular status b/c status is not usually voluntary– punishment is Constitutional only were it is done for conduct.
a.      Narcotics Addiction – Robinson v. California: U.S. S.Ct. invalidated a law criminalizing addiction to drugs, saying that addiction is an involuntary illness so there was no voluntary act. The conduct punished must be past conduct, not future conduct. Rule: it is unconstitutional to punish someone for their status.
b.      Public Intoxication and Alcoholism- Powell v. Texas (U.S. S.Ct.): D was found drunk in public and convicted. The Court held that he was not being punished for the involuntary status of being an alcoholic, but for the voluntary act of going into public while drunk. This limits the involuntary argument of Robinson, b/c the court held that the prohibition on status crimes arose only where there was no act at all.
c.       Pregnancy – Johnson v. State:D convicted under delivery of a controlled substance law when her baby was born addicted to crack. S. Ct. of Fla. quashed conviction saying that it was not the intent of the legislature to punish mothers under this law. This case might be a status case – pregnant addicted mothers can not help but to “deliver drugs” through the umbilical cord. 
d.      Homelessness – two conflicting cases addressing similar laws:
i.        Pottinger v. Miami – Ct. held that a law punishing a homeless person for eating or sleeping in public was actually punishing them for the involuntary status of homeless b/c eating and sleeping were necessary consequences of having such a status. (contra Powell – acts vs. status).
ii.      Joyce v. City of San Francisco – essentially same law at issue, but Ct. denied injunction against enforcement following the logic of Powell, it held that while homelessness may or may not be status but the law punished only the acts of eating, sleeping

misdemeanor any act that directly injures or tends to injure the public to such an extent as to require state interference. The proper disposal of a dead body was held to be fundamental duty in civilized society.
ii.      Keeler v. Superior Court – California rejected C/L crimes as violating D/P requirement of notice. Keeler was convicted of murder of his wife’s unborn child when he kicked her in the belly. The prosecution went on the theory that the fetus was a “human being” under the murder statute. The S. Ct. of CA overturned the conviction. Rule: Subject to the 8th Amendment limitations (on status crimes) the power to define crimes rests solely with the legislature, courts can not create new crimes by enlarging a statute by inserting terms or giving terms a false or unusual meaning.  A fetus was not defined as a human being by the legislature or the U.S. S. Ct. so killing it was not murder.
b.      Void for Vagueness Doctrine
Ricks v. D.C.:D convicted under vagrancy law that made it illegal for one who led a “immoral and profligate life” to “wander the streets at night.” The D.C Cir. held the law void for vagueness b/c it failed to give notice of what vagrancy was. Rule: Criminal statutes are unconstitutionally vague unless the statutory language conveys sufficiently definite warnings as to the proscribed conduct when measured by common understanding and practices.
Chicago v Morales: Vagueness may invalidate a criminal law for either two independent reasons:
It may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits
It may authorize and even encourage arbitrary and discriminatory enforcement
The controversy about this statute was that it prohibited loitering with “no apparent purpose” but the statute failed to define “apparent purpose”
The problem here is that the statute left law enforcement officers with too much discretion
The Rule of Lenity – States that when a criminal statute is subject to conflicting reasonable interpretations, but is not sufficiently vague so as to be void, it is to be construed narrowly against the government. This can result in a frustration of legislative intent and many states have abandoned it. The MPC does not recognize the principle, saying that statutes should be interpreted according to their fair import” and in a manner that furthers the “general purposes of the code” and the particular provision. (see MPC § 1.02(3)).