Outline for Criminal Law
Professor Cornwell
Spring 2011
I. JUSTIFICATIONS FOR PUNISHMENT (Queen v. Dudley and Stephens)
A. Utilitarian View – First promulgated by Jeremy Bentham, it considers humans to be “risk calculators” that try at all times to maximize their happiness. In the context of criminal law, this is reflected in the deterrent justification for punishment: if the benefit to be gained by committing a crime is outweighed by the possible punishment, the actor will be deterred. In addition to the two views of deterrence, the utilitarian view embraces the idea of rehabilitation.
1. General Deterrence: A criminal is punished to convince the community at large to forego criminal activity in the future. It is the idea of an “object lesson,” or an overall fear of punishment.
2. Specific Deterrence: An alternative view, it holds that punishment is designed to deter the individual criminals from future illegal conduct. There are two methods of specific deterrence:
a. Incapacitation: Keeping the criminal off the street keeps him from committing crimes.
b. Intimidation: upon release, the criminal is deterred by the fear of future imprisonment.
3. Criticisms of Deterrence: Critics hold that because of the improbability of apprehension (14:1 odds), the even more unlikely chance of incarceration (3%), the delay in punishment caused by clogged courts, and the ignorance of criminals as to the punishments, deterrence does not actually work.
4. Rehabilitation: A non-classical view of utilitarianism, it reached its peak in the ‘60’s. In this view, incarceration is best used to reform or “fix” the wrongdoer, not scare him. It has fallen out of favor in recent times, but in the area of juvenile crime, a resurgence has come in the form of “boot camp” style prisons. Critics hold that rehab removes the idea that wrongs deserve to be punished, and place the blame of society instead of the person.
5. KEY example was Mike Vick
6. dog fighting, punished
7. specific deterrence- to Vick himself.
8. general deterrence to others- made an example of
9. rehabilitiation- he gives talks for ASPCA
B. Retributivism: The idea is that crimes deserve punishment, b/c the wrongdoer has freely decided to violate societal rules. It has its basis in the idea of moral blameworthiness, and holds that conscious wrongs deserve punishment regardless of any deterrent effect, since humans possess free will, punishment is justified when it is deserved.
C. “just desserts” lex talionis – an eye for an eye, punish w/o regard to deterrence by sending a message of moral norms
D. desert = moral culpability
E. retributivist need believe “only that morally culpable persons should be punished, irrespective of what other persons feel, desire or prefer.”
F. Law prohibiting the conduct
G. voluntary act or omission (actus reus)
H. Mens rea
I. Causation
J. Harm (sometimes conduct- ex. DUI, doesn’t necessary have harm. Possession of gun,
K. Attendant circumstances
II. ACTUS REUS – THE REQUREMENT OF AN ACT
1. Generally: 1) a voluntary act 2) that causes 3) social harm
2. Act = a bodily movement
3. Voluntary = mind body connection, the person willed the movement. (not a reflex, spasm, seizure, movements while unconscious) (more of a spectrum of voluntariness)
i. The absence of an act leaves only thoughts and people can not be punished for their thoughts alone, b/c
1. skepticism about the ability to know what one’s thoughts are.
2. Freedom to think: in free society because we all sometimes wish harm on another
3. Inability to predict whether action will follow thoughts.
4. Lack of harm to society
5. morally wrong to punish people who haven’t acted on intentions.
6. not utilitarian to punish acts over which the individual has no control
7. retributivists respect human autonomy: there must be moral blameworthiness. Only on those who act as result of free choice.
3. THE REQUIREMENT OF VOLUNTARINESS: to be blameworthy, the act must be the result of a VOLUNTARY conscious decision. Even robbing a bank under gunpoint is voluntary. Acts can be involuntary for several reasons:
a. Unavoidable Acts: (movement w/o volution)
i. 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.
ii. EX of how to break it down on the test.
iii. any person who
iv. while 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.
v. intoxicated or drunk (attendant circumstances aka a.c.)
vi. appears (conduct/voluntary act) (even jumping out of a plane is voluntary, but he can argue it was involuntary bc the wind blew the skydiver)
vii. in any public place (a.c.)
viii. where one or more persons are present (a.c.)
ix. and manifests a drunken condition by certain conduct (conduct/voluntary act)
x. shall be fined.
b. Unconscious Acts:
i.
Model Penal Code: § 2.01(2) a person is not guilty of an offense unless his conduct “includes a voluntary act or the omission to perform an act of which his is physically capable. Also 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.
(e) Bu t remember, not all acts need voluntary.
Note: this excludes punishment or mere thoughts and bars liability for purely involuntary conduct
Includes possession: MPC 2.01(4)- possession is an act if
the possessor knowingly procured or received the thing possessed
or was aware of his control thereof
for a sufficient period to have been able to terminate his possession
break it down, each element must be satisfied and is debatable.
Reactions/ reflexes.
ii. Seizures are voluntary if they know they have it and get in the car and drive.
iii. State v. Utter- RULE: an act is a willed movement, an unconscious act isn’t an act. So involuntary act IS a defense, but there wasn’t enough evidence to show the son approached him from behind.
iv. must be conscious act. Aka a connection between mind and body to be voluntary
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.
5. OMISSIONS AS ACTS: Ordinarily, not doing something is not criminal even if it means that a harm results. This is because in general people do not owe any duty to one another absent special circumstances. Note that there is a distinction between a moral duty and a legal duty, and some would argue that a moral duty should be sufficient to punish. The circumstances that give rise to a duty to act so that failure to do so may result in criminal liability, occur in four contexts: SEE MPC 2.01-3
a. A statute imposes a duty to care for another – drivers must stop at scene of accident, etc.
b. A special relationship exists between the parties ( a C/L duty) – parent child, husband wife, etc.
c. A contractual duty exists – babysitter (implied K), doctors to patients, etc. (see Jones v. U.S.).
d. Omissions flowing from an act:
i. Creation of a Risk – where a person purposefully or even innocently caused injury or creates a risk that results in injury, has a C/L duty to aid the injured party and failure to do so may result in criminal liability.
ii. Voluntary Assistance – One who voluntarily begins to render aid to someone in peril, has a duty to continue the aid. At least if subsequent omission of the aid would put the injured person in a worse position, such as secluding the victim from others who could render aid. This may arise even if the assisting person had nothing to do with the injury.
iii. People v. Beardsley – (while wife was away, lady killed herself, no duty to help)
iv. Barber v. superior court doctors remove life support. duty: ordinary care, not extraordinary. Balances likely benefit vs. burdens caused (pain/intrusive)
a. POSSESSION AS AN ACT: Possession of proscribed materials may constitute a crime in itself – usually it must be
b. the possessor knowingly procured or received the thing possessed
c. or was aware of his control thereof
d. for a sufficient period to have been able to terminate his possession
e. (see MPC § 2.01(4)). Possession is in inchoate crime (an incomplete crime), there are two kinds:
f. Actual Possession: actual dominion or control over the item. (State v. Palmer (burglary tools)).
g. Constructive Possession: Control over the premises where the item is located, the ability to exercise control, and the intent to do so. (Earle v. U.S. (D found asleep next to a room full of crack); People v. Valot (rented motel room where drugs were found – guilty even though not present)).
THE LEGALITY PRINCIPLE: States that some condu
erest have been endangered by the acto’s conduct (ex. DUI)
xxviii. Results – offenses prohibits a certain result ex. the death of another human being. w/o caring about the nature of the actor’s conduct. It doesn’t matter HOW the result occurs (via gun/knife or poison) just that the result does occur.
III. MENS REA – THE REQUIREMENT OF A GUILTY MIND
A. Generally: a guilty mind is required for the same reason a voluntary act is – it is necessary to justify punishment for moral blameworthiness. Bad thoughts come in two varieties: the desire to harm others or violate some social duty or the disregard for the welfare of others or some social duty. In some instances a crime may be a strict liability crime, however, and is punished whether or not the D had any mens rea.
ii. POLICY for req.
b. Utilitarian: person can’t be deterred if he doesn’t appreciate that punishment lies in store via mens rea
c. Retributive: “even a dog distinguishes between being stumbled over and being kicked” it’s morally unjust to punish those who accidentally rather than by choice, cause a social injury.
B. Strict Liability: Liability w/o fault. At early C/L many crimes were strict liability, but the modern trend is to require a mens rea element. The MPC says that only “violations” are punishable as strict liability offenses (fines, forfeiture, etc.), but some are still recognized.
Crimes where no culpable intent is required. Aka no mens rea requirement for guilt even if D though his conduct was proper, only that D committed a wrongful act.
i. MPC 1.04(5) rejects strict liability except for violations that can’t result in imprisonment or probation
ii. MPC 2.05:
1. mens rea culpability is not required for offenses which are violations unless the requirement is included in the definition of the offense or the corut determines it’s applications is consistent w/ effective enforcement of the law defining the offense
2. Or
3. The offense defined by statutes other thatn the code impose absolute liability for such offenses
4. Unless a statute provides otherwise, when stric tliabilty is imposed wrt any material elemtn of an offense, and a convenction is based on such liabilyt, the offense constitutes a violation.
Typically used for
i. Public welfare offenses
1. product of the industrial revy. Ex. traffic violations, improper good handling, pharm, unsafe working conditions = strict liability.
i. Determining if a crime is a strict liability offense.
2. Morissette v. US (guy stealing spent bomb casing- held common laws aren’t presumed to be strict liability offenses even if the statute doesn’t mention a means rea requirement. Only if the leg has a clear intent not to require means rea.
ii. defenses to strict liability
3. affirmative defenses: entrapment
4. mistake of law (law was changed after
5. involuntary act, must be actus reus.
6. prosecution doesn’t have to prove mens rea, but D can raise a mens rea defense: good faith showing that shifts the burden to the D to show they acted in good faith.
a. Generally only used when there are constitutional concerns w/ 1st amendment bc it’s a compromise with strict liability
f. Criticisim
i. Doesn’t deter bc the actor is unaware of the facts that render his conduct dangerous
ii. It’s unjust to condemn a person who is not morally culpable.
