Criminal Law
Michael Simons
Spring 2015
Actus Reus = Act + Harm
Mens Rea = Intent
Causation = Causation
Criminal law blames people for choices. An accident is not a sin. Culpability is the word we use. Harm and culpability determine the severity of a crime.
Theories of Punishment
Retributive – punishment is justified because people deserve it
Utilitarian – punishment is justified because it serves a useful societal purpose
§ Backward-looking
§ Non-consequelisitst
§ Just deserts
§ Forward looking – consequentialist
§ Suffering of D must go into the cost-benefit analysis or calculus of utilitarianism
§ Crime prevention/ punishment minimalization:
1) General deterrence
2) Specific Deterrence
3) Incapacitation
4) Rehabilitation
People v. Du (1992) – Du was charged with voluntary manslaughter. Elements of this are Intent to kill and Provocation. Provocation distinguishes manslaughter from murder.
Reasons for a harsh sentence
Reasons for a Soft Sentence
§ Took a life – and a child’s life at that
§ Danger to society (volitional reaction)
§ Encourage her to lead a crime free life – specific deterrence
§ Intending death is worse than intending a little harm
§ Deter others – general deterrence
§ Gun had no safety because it had been tempered with when it was stolen from Du (that wasn’t her fault)
§ She was a law abiding citizen
§ Not likely to do this again
§ Understandable choice (given her prior experiences)
§ Latasha hit first (initial aggressor)
Judge Karlin suspended Du’s prison sentence.
Karlin’s sentencing rationales:
1) To protect society (Utilitarian)
2) To punish Defendant (Retributive)
3) To encourage defendant to lead a law-abiding life (specific deterrence)
4) To deter others (general deterrence)
5) To isolate the defendant so she cant commit other crimes (Incapacitation)
6) Restitution (Compensation – Civil?)
7) Uniformity (Retributive/Utilitarian)
Proportionality
Aims to ensure that an offender receives punishment appropriate to the crime he has committed.
8th Amendment – “Excessive bail shall not be required, nor excessive fines imposed”
A punishment is excessive if it:
1) Makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering (Utilitarian); or
2) Is grossly out of proportion to the severity of the crime (Retributive)
Coker v. Georgia (1977) – Is the death penalty for the rape of an adult woman unconstitutional because it is not proportional?
Execution
No Execution
Retributive
v The harm inflicted on the rape is great enough for murder to be an appropriate punishment (same goes for the culpability)
v Recidivists deserve more punishment (Coker had murdered, raped and escaped prison prior to this rape)
v The harm or death is greater than that of rape (this argument also applies to the culpability)
v Life in prison is just as bad as death – a life sentence is sufficient punishment
Utilitarian
v Incapacitation
v Specific deterrence – he might escape from prison again
v General deterrence at people serving life sentences who might be likely to rape others
v Deter murder of the rape victim (rapist might as well kill the victim while he is at it if he will get the same punishment)
v More expensive than a life sentence (as long as a supermax that could contain him could be found)
Terms of Imprisonment
Rummel v. Estelle – Rummel argued that a life sentence was not retributive punishment for stealing a $120 ch
convicted for calling a woman on the phone and talking to her about sodomy.
What would be wrong with punishing someone for picking their nose and being gross?
It is subjective and vague.
Vague – there would be no notice to the offender
Broad – some types of grossness – like picking your nose – are clearly innocent behaviors. The broadness also gives too much power to the police and the courts. This type of power can be used arbitrarily by both cops and prosecutors.
Common law = judge made decisions
(Criminal law is now statutory)
v When we say common law we mean statutes codified by prior common law decisions.
v In the 1960s, the American Law Institute made the Model Penal Code.
v NYPL (1965) roughly tracks the MPC
Keeler v. Superior Court (1970) –
1850 – legislature enacted common law definition of murder
1872 – 1st Penal Code in California – “Murder is the unlawful killing of a human being with malice aforethought.”
Elements of murder:
1) Unlawful
2) Killing
3) Human being à “born alive”, “viable”
4) With malice aforethought
The issue in this case was whether a fetus qualified as a “human being”. The legislature had not defined it as such and the courts went along.
To define “human being”, look at:
Ø Text
Ø Intent
o Legislative History
o Background
o Purpose
*Today, 30 states have abandoned the “born alive” rule holding that criminal homicide liability attaches despite absence of a live birth. (Treatise)
Dead is brain dead under MPC.
Policies Underlying Legality
1) Democratic Legitimacy
2) Fairness
a. Giving notice
b. Avoiding Arbitrariness
