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Criminal Law
St. Johns University School of Law
Levine, Kate

Criminal Law Outline
Fall 2017
Prof. Levine
Theories of Punishment
Utilitarianism (Bentham): forward looking, crime prevention, punishment minimization, proportionality btwn crime and punishment
Punishment is justified b/c of its social usefulness & should be pursued if it serves good ends
Purpose of punishment is to outweigh the joys of the pleasure
Problem: assumes a rational actor. Could require the punishment of an innocent if the benefit to society would be greater
Modern Theories of Punishment (2,3,4 stem from utilitarian concepts)
Retributivism (Kant): backward looking, just deserts Punishment given b/c its deserved
Positive retributivist (HARSHEST): a just society must punish the blameworthy (desert requires punishment)
Negative retributivist (SOFTEST): retributivism sets the upper limits of punishment (can’t get more than you deserve)(desert allows punishment)
Problem: Assumes a level playing field. could require punishment that does more harm than good. Be wary of leading towards revenge
Deterrence → (utilitarian concept) Punish based on better consequences in the future
Threaten someone to stop them from committing the act
Economic approach to crime control (potential offenders calculate the cost v. benefits of committing crime)
General Deterrence: deterring society at large from the action by punishing 1
Specific Deterrence: deterring the actual person who committed the crime
Problem: younger ppl seem impervious to changes in sentence length. Longer sentences could tend to increase crim b/c of difficulty in adjusting leading to recidivism
Incapacitation: Stopping the continuing of activity by separating individuals from society
Problem: punishment should be deserved for what you did. Not for what you will do in the future
Rehabilitation: Correct social behavior through: Treatment, educational programs
For society: treating offenders makes “us” safer
For offender: rehabilitate so they can lead a full life
Problem: doesn’t really work
MPC 1.02(1)
3 Foundational Principles limit the imposition of Punishment
 Legality Principle: no punishment without law (notice of law)
Purpose: controls discretion of system actors (police, jury, prosecutor), no vagueness, provides fair warning
Culpability: only a blameworthy person should be punished actus reus + mens rea
Proportionality: punishment should fit the crime
Statutory Interpretation
The Rule of Lenity
Common Law:
Ambiguity concerning criminal statutes should be resolved in favor of lenity (for the D)
Statutes should be interpreted according to their ordinary and plain meaning
MPC 1.02(3):
Criminal statutes will provide fair warning concerning conduct rendered illegal
Clear (Fair) warning should be given to the world in language that the common world will understand
The Rule of Vagueness (Common Law)
Vagueness may invalidate a criminal law for either of 2 reasons:
Failure to provide notice that enables ordinary ppl to understand what conduct is prohibited
If it authorizes & encourages arbitrary and discriminatory enforcement
City of Chicago v. Morales “GanG Congregation Ordinance”: (to be valid the law had to join the term loitering with a 2nd specific element of a crime)
Vagrancy Laws deemed unconstitutional (Act criminalized leisure activities; gov’t must clearly define the laws and not base it on the moment to moment discretion of officers)
MPC 1.05
punishment must be proportional to the seriousness of the offense/ what the offender deserves (Major feature of modern day retributivist theory)
Utilitarian aspect: give appropriate punishment to deter from recommitting
Bentham Principles of Punishment:
The value of the punishment must not be less than the profit of the offense nor in excess of the offense
When 2 offenses come in competition, the punishment for the greater offense must be sufficient to induce a man to prefer the less
Pains of Punishment must outweigh joys of crime
Ewing v. California “3 Strikes Golf Clubs”: sentencing repeat offender to life under 3 strikes rule for petty offense not grossly disproportionate looking at triggering offenses
Graham v. Florida: LWOP for juveniles held unconstitutional b/c does not conform to the theories of punishment
Retribution: juveniles have less culpability, so less reason for harshest penalty.
Deterrence: juveniles are less rational so it’s harder to deter them
Incapacitation: too young to condemn forever b/c their brains are malleable.
Rehabilitation: there is no rehabilitation concern w/ LWOP
Strict Liability
Common Law
Strict Liability Crimes are:
Statutory rape
Mislabelling of drugs
Selling drugs (can’t claim you didn’t know it was illegal)
Knowledge is not required if the statute’s purpose would be obstructed (drug crimes, stat. rape)
If statute is easy to violate innocently or imposes a serious penalty, court likely to read in a mens rea
Morissette → took shell cases from an army base. No conviction b/c no culpable mens rea
Staples → unregistered semi-automatic gun changed to autho over time w/ wear and tear.
Knowledge is required for such as a serious offense as a Felony
MPC 2.05
Strict liability is only applicable to violations unless the statutory language explicitly requires to impose liability for crime w/ punishment greater than a fine
Actus Reus → the act, usually the harm ( common law & MPC 2.01, 2.04)
Voluntary Actions
Habit is considered voluntary for deterrence reasons
Involuntary Actions
Hypnosis is considered involuntary (generally) MPC 2.01(2)(c)
Unconsciousness (or sleep) when it is not self-induced as by voluntary intoxication
Reflex or Convulsion
Epilepsy (Decina case — voluntary b/c disregarded the consequences)
Omissions: an omission is an act when there is a legal duty to render aid
 4 situations where failure to act constitutes breach of legal duty (SCARS):
Statute creates obligation to care for victim
Contractually agreed to provide care for victim
Actor created risk of peril
Reliance (volunteered or secluded victim from others who might help)
Status relationship (parent to minor or disabled child. Husband/Wife)
Duties of a Bystander: generally bystanders have no duty to rescue unless state has Good Samaritan Laws that make it a crime not to render aid. When there is a punishment, it will be minimal b/c tough to force someone to get in the middle of criminal activity
Duty of one who creates the Peril: Whenever the D’s act imperils the person, liberty, or property of another w/o his knowledge, and the D becomes aware, D has a duty to take reasonable steps to prevent the peril from resulting in the harm
Duties To Aid Relationships:
Family members: usually only a significant status relationship will do (spouses to one another, parents to minor children, volunteered relationship such as dependent child, stepparents)(not amongst siblings and parents and adult children)
Mandatory reporters: teachers, doctors, social workers, psychologists, lawyers
Even if the parent is a victim, they are charged with a duty to take steps to make sure the child is not (mothers should place their children before their own safety)
Possession: is an act (b/c ability to terminate)
MPC 2.01(4): If the possessor knowingly procured or knowingly received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession
Even when the statute is silent, one must be aware that they are in possession of the thing charged w/ possessing
Courts are split as to w

based on the underlying crime that he was a felon with illegal possession of a firearm.
 Dissent: actions were negligent but not necessarily inherently dangerous b/c his acts did not create a high probability that death to a human would occur b/c hunting is a sport
Abstract test: inherently dangerous felony based on facts of a particular case
Murder under MPC 210.2
Purposely, knowingly, or recklessly manifesting extreme indifference to human life
Felony Murder 210.4: Any act that is known to be dangerous and likely to cause death, if done for the purpose of committing a felony which causes death amounts to murder
A felon is held strictly liable for all killings done by him or accomplices in the course of committing a felony as long as the homicide is the direct causal result. It does not matter that the victim might have died soon anyway
The felony murder doctrine is NOT limited to those deaths which are foreseeable. Take the victim as they come. Eliminates proximate cause
Stamp: D burglarized a business and the fat employee w/ a weak heart died. D guilty of 1st degree murder
But for the felony, the death would not have occurred AND
The result must have been the natural and probable consequence of the D‘s action, or that it must have been foreseeable
this concept violates the basic principle of just punishment b/c the punishment should be proportional to the wrongdoing
not effective b/c you cannot deter something that has no mental state (actors were not planning to kill)
Proponents: the primary justification is deterrence to
forgo committing the felony itself
discourage certain conduct during the felony, not the felony itself
MPC 210.02 and Inadvertent Murder
murder requires proof that D acted recklessly under circumstances manifesting extreme indifference to human life. Inadvertent risk creation, no matter how extravagant and unjustified cannot be punished as murder b/c serious felony sanctions should be grounded securely in the subjective culpability or the actor
MPC and Intoxication 2.08(2)
Recklessness need not be shown if the D was unaware of the risk b/c of voluntary intoxication. Negligence in drinking before driving is a sufficient mens rea for murder
Many states law for drunk drivers who kill = negligent manslaughter
Manslaughter under Common Law
Provocation → voluntary killing
Provocation Policy: someone who is provoked are less blameworthy therefore we punish them less
Provocation elements that mitigate murder to manslaughter:
Extreme assault or battery upon the D
Mutual fighting
D’s illegal arrest
Injury or serious abuse of a close relative of the D
Sudden discovery of a spouse's’ adultery
Categorical Rule: Words are not enough provocation to mitigate, must have harmful conduct. Simply b/c a state of excitement has followed from an act will not render it sufficient provocation
Girourard v. State: D arguing w/ wife in bed and stabbed her w/ nearby knife convicted of murder. D wants wife’s provocation to mitigate charge to manslaughter