Class: Criminal Law School: Santa Clara Teacher: David Ball Semester: Fall 2013
Principles of Punishment
I. THEORIES OF PUNISHMENT
A. In General
1. Since punishment involves pain or deprivation that people wish to avoid, its intentional imposition by the state requires justification.
2. Threatened punishment not always inflicted.
3. Performed by, and directed at, agents who are responsible in some sense (god and humans can punish, hurricanes cannot)
4. Involves designedly harmful or unpleasant consequences
5. Unpleasant consequences usually are preceded by a judgment of condemnation; the subject of punishment is explicitly blamed for committing a wrong
6. Imposed by one who has authority to do so
7. Imposed for a breach of some established rule of behavior
8. Imposed on an actual or supposed violator of the rule of behavior
B. Utilitarian Justifications: forward looking, punishment is justified because of its useful future purposes/benefits
1. Bentham
a. Mankind has two masters, pain and pleasure. Pleasure, and avoidance of pains, is the ends which the legislator has in view.
b. All punishment is evil, as a utility, should only be used to exclude a greater evil
c. No punishment as utility if would be groundless (nothing to prevent), inefficacious (would not effectively prevent), unprofitable (punishment greater than evil preventing), or needless (evil will be prevented without punishment)
2. Greenawalt
a. Is morally desirable if promotes human happiness better than possible alternatives. Since involves pain, justified only if accomplishes enough good to outweigh harm.
b. Often employed to refer broadly to theories that likely consequences determine the morality of action.
c. General Deterrence
i. Knowledge that punishment will follow crime deters people from committing crimes, thus reducing future violations and the unhappiness and insecurity they would cause.
ii. Greater temptation to commit a particular crime and smaller chance of detection, more severe penalty should be.
d. Individual Deterrence
i. Actual imposition of punishment creates fear in the offender that if he repeats his act, he will be punished again.
ii. More severe punishment of repeat offenders is warranted partly because first penalty shown ineffective from standpoint of individual deterrence.
e. Incapacitation/risk management
i. Imprisonment temporarily puts convicted criminals out of general circulation, death penalty does so permanently.
f. Reform
i. Punishment may help to reform the criminal so that his wish to commit crimes will be lessened, and perhaps so that he can be a happier, more useful, person.
C. Retributive Justifications: backwards looking, punishment is justified because people deserve it for past actions
1. Morris
a. Man has a rough equivalence in strength and ability, a capacity to be injured by each other and to make judgments that such injury is undesirable, a limited strength of will, and a capacity to reason and to conform conduct to rules. Rules that prohibit violence and deception and compliance with which provides benefits for all persons.
b. Benefits consist of noninterference by others with what each person values, such matters as continuance of life and bodily security. Making possible mutual benefits among man is the assumption by individuals of burden.
c. Burden consists in the exercise of self-restraint by individuals over inclinations that would, if satisfied, directly interfere or create a substantial risk of interference with others in proscribed ways.
d. If person fails to apply self-restraint, he renounces a burden which others voluntarily assume, and thus gains an advantage which others do not possess.
e. A system is created in which rules establish a mutuality of benefit and burden, and in which the benefits of noninterference are conditional upon the assumption of burdens.
f. Only reasonable that those who voluntarily comply with the rules be provided some assurance that they will not be assuming burdens which others are unprepared to assume.
g. Fairness dictates that a system in which benefits and burdens are equally distributed have a mechanism designed to prevent a maldistribution in the benefits and burdens.
h. It is just to punish those who have violated the rules and caused the unfair distribution of benefits and burdens. A person who violates the rules has something others have, benefits of the system; but by renouncing what others have assumed, the burdens of self-restraint, has acquired unfair advantage.
i. Matters are not even until this advantage is in some way erased. He owes something to others; he has something that is not rightfully his. Justice, punishing violators, restores the equilibrium of benefits and burdens by taking from the individual what he owes, exacting of the debt.
2. Murphy & Hampton
a. Those who wrong others objectively demean them. Implicit in their wrongdoings is a message about their value relative to their victims.
b. Retributivist’s commitments to punishment not merely about taking wrongdoers down a peg or two; it is also about asserting moral truth in the face of its denial.
c. By victimizing me, wrongdoer has declared himself elevated with respect to me, acting as a superior who is permitted to use me for his purposes. False moral claim has been made, moral reality has been denied, the retributivist demands that the false claim be corrected. The lord must be humbled to show that he isn’t the lord of the victim.
d. Lex Talionis
i. Calls for a wrongdoer to suffer something like what his victim suffered.
ii. Punishment is a second act of mastery that denies the lordship asserted in the first act of mastery.
II. PENAL THEORIES IN ACTION
A. Who should be punished?
1. Queen v. Dudley and Stephens – adults and young boy were stranded at sea, believing they weren’t t be rescued, they killed boy to eat him. Men stated that boy was sure to die soon anyway, and better he die alone then they all die.
B. How Much, and what, Punishment should be Imposed?
1. Indeterminate Sentencing System
a. If trial judge has broad sentencing discretion, able to incarcerate between X and Y years, or no more than X years, etc… on a case-by-case basis
2. Determinate Sentencing System
a. Legislature sets specific sentence for each crime, although often permitting a specified higher or lower sentence if specific aggravating or mitigating circumstances are proven.
III. PROPORATONALITY OF PUNISHMENT
A. Constitutional Principles
1. Eighth Amendment
a. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”
b. Supreme court ruled amendment “directed against all punishments which by their excessive length or severity are greatly disproportioned to the offense charged”
2. Ewing v. California – long history of felony recidivism factored. In imposing a three strikes sentence, State’s interest is not merely punishing the offense, “it is in addition the interest in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.” Justified by State’s public-safety interest in incapacitating and deterring recidivist felons, supported by own long/serious criminal record.
MODERN ROLE OF CRIMINAL STATUTES
I. PRINCIPLE OF LEGALITY
A. Nullum crimen sine lege, nulla poena sine lege (no crime without law, no punishment without law)
1. A person may not be convicted and punished unless her conduct was defined as criminal
2. Criminal statutes should be understandable to reasonable law-abiding persons.
3. Criminal statutes should be crafted so that they do not “delegate basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis”
4. Judicial interpretation of ambiguous statutes should “be biased in favor of the accused,” known as lenity doctrine
B. The Requirement of Previously Defined Conduct
1. Commonwealth v. Mochan – Mochan made numerous degrading phone calls to a woman. There was no statute forbidding this type of conduct, however court found Mochan guilty under history of common law cases. Pennsylvania penal code allowed loop hole to charge defendants with common law crimes where a statute was absent. “The factual charges in the body of the indictments identify the offense as a common law misdemeanor and the testimony established the guilt of the defendant.”
2. Keeler v. Superior Court – California penal code 187 states “murder is the unlawful killing of a human being, with malice aforethought.” In this case, Keeler had malice aforethought to beat cheating wife, and kill the fetus inside her. However court determined that the CA legislature, in putting “human being” in the statute, meant a human who was born alive, and not an unborn fetus. CA Penal Code states that there are no common law crimes in CA, and that despite prosecution’s argument that advancements in science would prove that fetus is a human being, only legislature has power to create new laws. Court states that it is important under Due Process that one has notice of what is and what is not criminal behavior, requirement of fair warning is reflected in the constitutional prohibition against the enactment of ex post facto laws, court found no California case law that would allow Keeler to foresee that killing a fetus was murder.
a. ex post facto clause, “safeguard common interests, in particular, the interests in fundamental fairness (through notice and fair warning) and the prevention of the arbitrary and vindictive use of the laws,” violation consists of:
i. one that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action, or that aggravates a crime, or makes it greater than it was when committed
b. Afterwards, CA legislature amended 187 to include “fetus”
c. 20+ years before Keeler, court held that fetus that dies during birth process is considered a human being
C. The Values of Statutory Clarity
1. Unduly Vague Statutes: unconstitutional because:
a. Assume man is free to steer between legal/illegal conduct, vague laws may trap the innocent by not providing fair warning
b. Vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with attendant dangers of arbitrary and discriminatory application.
c. Where vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms. Steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.
2. City of Chicago v. Morales – Chicago City Council enacted ordinance that was determined to violate Due Process Clause because of vagueness. Main issue was the phra
gs worse by intervening
e. Issue of freedom, USA values individual liberty
i. Penal law code that prohibits a person from doing X permits that person to do anything other than X
ii. Penal law code that requires a person to do Y bars that person from doing anything other than Y
IV. SOCIAL HARM
A. Result Crimes
1. Punishes for unwanted outcome
2. Proven outcome, as a crime, is a “social harm”. Not just loss to an individual, but to society
3. Intangible harm resulting from any crime, including a community’s loss of a sense of security.
B. Conduct Crimes
1. Law prohibits specific behavior
2. Enacted to prevent the potential social harm
3. Endangerment of a socially valuable interest occurs, the “social harm” is the “very essence” of the crime
C. Attendant Circumstances
1. Must be present, in conjunction with the prohibited conduct or result, in order to constitute the crime.
2. “It is an offense to drive an automobile in an intoxicated state.”
a. “in an intoxicated state” = attendant circumstance
b. Actus reus does not occur unless the actor drives her car (the conduct) while intoxicated (attendant circumstance)
c. “automobile” = attendant circumstance
MENS REA
I. NATURE OF “MENS REA”
A. “A guilty mind; a guilty or wrongful purpose; a criminal intent”
B. “An act does not make [the doer of it] guilty, unless the mind be guilty; that is, unless the intent be criminal.”
C. Broad Meaning (Culpability)
1. Means “guilty mind”, “vicious will,” “immorality of motive,” or, simply, “morally culpable state of mind.”
D. Narrow Meaning (Elemental)
1. Refers to mental state defendant must possess with regard to the “social harm” elements set out in the statute.
II. GENERAL ISSUES OF PROVING CULPABILITY
A. “Intent”
1. People v. Conley – statute states “person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery.” Defendant argues that state can’t prove that he “intended” to inflict disability. Court says that intent can be inferred from his actions (winding up and striking in the face with a glass bottle), it is enough to prove that he intended the act, the result can be reasonably inferred from the act, and he “knowingly” inflicted harm. Problems of proof are alleviated by the ordinary presumption that one in tends the natural and probable consequences of his actions. “Transferred intent doctrine”, intended action, intended result, still guilty if harm results to someone other than intended target.
a. Conley-Intent: when his conscious objective or purpose is to accomplish that result or engage in that conduct.
b. Conley-Knowledge: the result of his when he is consciously aware that such result is practically certain to be caused by his conduct.
2. Transferred Intent Doctrine (common law)
a. Accused is deemed culpable, and society is harmed as much, as if the defendant had accomplished what he had initially intended, and justice is achieved by punishing the defendant for a crime of the same seriousness as the one he tried to commit against his intended victim.
b. Legal fiction. Based on an assumption that mens rea only exists in the perpetrator only in relation to an intended victim, it is plain that this is not true. Law speaks in terms of an unlawful intent to kill a person, not the person intended to be killed.
3. General Intent (Culpability)
a. When no particular mental state is set out in the definition of the crime and, therefore, the prosecutor need only prove that the actus reus of the offense was performed with a morally blameworthy state of mind.
b. Sometimes reserved for crimes that permit conviction on basis of a less culpable mental state, such as “recklessness” or “negligence”
c. Any mental state, whether expressed or implied, in the definition of the offense that relates solely to the acts that constitute the social harm of the offense.
4. Specific Intent (Elemental)
a. An offense in which a mental state is expressly set out in the definition of the crime.
b. Sometimes used to denote an offense that contains in its definition the mens rea element of “intent” or “knowledge”.
c. Designates a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crim.
