Please use this as a tool to review, some mistakes may exist in the outline
Punishment-when agent of government, by authority of government causes D to suffer for his criminal conviction. Paying fine-unpleasant & qualifies as punishment, disbarred lawyer-not punishment
Utilitarian theory-usefulness in punishment
-maximize pleasure, minimize pain-all punishment is evil, but needed to minimize greater evil
-in deciding in whether an act is a crime we ask did it cause harm?
-The punishment depends on how many crimes it can prevent
-Punishment should not be inflicted if there are no grounds for it
>if it can’t prevent crime, or it would produce greater mischief, or where mischief seizes on its own
-Bentham theory is always looking forward,
-4 different mechanisms don’t always work in certain cases
· General deterrence-prevent those in the public from doing the same
o critique- would you punish an innocent person if it would deter 100 crimes/qualm riots?
o is it ever justifiable under this theory- society as a whole won’t benefit if this is allowed
o Uses person as means to an end?- he benefits if society does
· Specific deterrence- intimidation-message to stop doing that in future for fear of punishment
· Incapacitation-shutting him down from making choice to harm public
o Life in prison incapacitates for life
· Rehabilitation-educating him so that he can make better choices
o Idealistic b/c jails often fail? Demeans free will? Why Continue to punish if reformed?
o
Retributivist theory-should punish people because and only because they deserve it
-look back to the moment in time
-each person has freewill and uses it, making a condemning choice to do harm
-Punishment should be done for crime reduction purposes
-morally culpable criminal deserves and has a right to be punished
-It is a duty to punish him
· Negative Retributivism- innocent should never be punished guilt is necessary condition
· Positive Negative R- guilt necessary and sufficient condition- guilty must be punished
· Assaultive R-morally ok to hate criminals, deters private vengeance, symbolic general deterrence
· Protective R-criminal has right to be punished restores moral equilibrium b/n criminal & society
· Victim oriented R-reaffirms the value of victim and restores equilibrium b/n criminal & victim
Criticism
-pain senseless/cruel if does no good; Response-proportional punishment to crime is unalterable right
-glorifies anger and legitimizes hatred; Response- even if true only applies to assaultive form
-irrational b/c founded on emotion not reason; Response- positive and negative moral feelings tell people what is right and wrong- demonstrates what we value and respect
People v Du-How much punishment?-sentencing needed to qualm racial tension – Ct rejected assaultive ret
Factors of punishment are:
-Protecting society from the criminal
-Punishing D for the crime
-Encouraging D to lead law abiding life
-Deter others-To incapacitate
-To secure restitution for victim
-To seek uniformity in sentencing
Hybrid
General aim of punishment system is to deter criminal conduct and because criminal deserves it
-Retributivist concept used to decide when and how to punish
-Utilitarianism views come into play to informs individuals of improper conduct & value of victim, society’s expression of condemnation & seriousness of crime; channels community anger through crim justice system, retaining cohesiveness (for future conduct-utilitarian)
MPC-sentencing issued for
>deterrence
>correctional/rehab purposes,
>safeguard against disproportional punishment
>fair warning of what conduct are crimes
NYPL-same as MPC, but adds “to provide for appropriate public response considering Victim, Victim’s family & community”
Proportionality
Utilitarian view on punishment
-makes sense that punishment should be more than the benefit you may get from crime.
-The greater the crime, the greater the punishment (enough for general & specific deterrence)
-punishment should encourage criminal to commit less aggravated crime
-punishment should never be excessive
Retributivist view on proportionality
D symbolically repay the harm he caused in proportion to offense’ severity
-rape doesn’t warrant death
-recidivists should be punished more than what is deserved by that one crime
External proportionality
-social harm caused by crime must be proportional when looking at this act relative to all other crime
Internal proportionality
-moral culpability of wrongdoer, must be proportional when looking at this wrongdoer relative to all other wrongdoers
NYPL Sec 10-
Definition of offender
-Traffic infractions,
-Violations (not criminal offense, may be punishable by 15 days in jail)
Crimes
-Misdemeanor-less than a yr in jail
-Felony-punishable by more than yr
Legislature decides which box a crime fits into
Constitutionality
Punishment is excessive and unconstitutional under 8th Amendment
1if it makes no measurable contribution to acceptable goals of punishment, hence is nothing more that purposeless and needless imposition of pain and suffering OR
2 if it is grossly out of proportion to the severity of the crime.
(Can use another part- offense v penalty harshness, punishments in jurisdiction & other jurisdictions)
Coker v Georgia- death for rape, end result=unconstitutional to sentence even child rapist to death
Appeal-excessive punishment 8th amendment violation-cruel and unusual punishment
Focus on 2nd prong, there is no death in rape, and is not equal to death.
Look at other states-do not have death penalty for rape
Look at other cases- death in 10% of cases- violent & racially motivated (black men raped white). .
-assuming there is a ladder of crimes and punishment, homicide is at the top.
Utilitarian response-punishment should be more severe than the crime to deter
-death is worse than rape? Can focus on gravity of harm in rape.
-Not just a rape crime, criminal is a chronic rapist and killer, death penalty deters escaping.
-makes measurable contribution to society.
-Says both prongs of the test need to be satisfied (measurable contribution and proportionality)
Ewing-1st time Sup Ct deals with constitutionality of punishment for jail sentence instead of death penalty
3 strikes law- serious and violent felony, 3d time-25 to life. Eligible for parole, 25 years or later
Criticism of law- it is excessive
D has long criminal history- robbery, drug possession, etc
Stole perhaps due to drug addiction, and spend short amounts of time in jail. Stole golf clubs
Wobbler- judge/prosecutor can reduce seriousness of crime as misdemeanor- less than yr in jail.
Precedent- Solem
1. Gravity of the offense and harshness of penalty, threshold factor, no need to look at 2-3
*here majority says they are matched (thinking about prior criminal history)
*dissent suggests that problem is not with test but with how the harshness of the penalty is looked at
2. Sentences of other criminals in same jurisdiction (what crimes in state received same sentence as D?)
3. The sentences imposed for commission of the same crime in neighboring jurisdictions
Harmelin case- 8th amendment does apply to non-capital sentences
-but 8th amendment does not require strict proportionality b/n crime and punishment
SO apply 1st prong of Solem and
a. if offense is se
rries a firearm-prison for 5 years.”
“Carry”
-narrow- holding object while moving object- Quickly be able to put the gun to use. (Majority)
-broad- transporting object
Legislative intent was to protect against immediate danger or overall danger of drug dealers?
Precedents-‘uses’ v ‘possession’-went w/ narrow interpretation.
What the public understanding is on “carrying gun”
NYPL 5.00 focus on intent, do not use lenity
MCP 1.02 3 3- does not reject or accept lenity- code construed to fair import of terms/general purposes
5 Modern Elements of a Crime
1 Voluntary act
2 Causation
-actual
-proximate
3 Social harm (collective harm that society suffers from a crime to an individual)
-Result crimes-tangible crime that results in social harm
-Conduct crime- intangible social harm
driving under influence, solicitation for murder. Risk of harm increases, effects how citizens behave
*don’t have to prove element of social harm- don’t have to worry about causation
-Utilitarians- social harm doesn’t need to be prerequisite, should deter dangerous conduct and people
-Retributivist-punishment not justified unless some1 caused social harm and owes dept
>some crimes have both result and conduct elements- killing someone by means of destructive device
4 Attendant circumstances- a circumstance that has to exist at the time the crime was committed.
DUI- voluntary act- driving. Att Circs- alcohol.8/higher. Has to be vehicle. Person has to be tested.
If a statute has an Att circ and if at the time D committed actus reas the Att circ was not present=NO harm
****concurrence of actus reas and mens rea is needed too
5 Mens rea/intent
Actus Reus
-Physical act/motions of the person
>the harm it causes, and
>the causation that connects the two
>4th part-Attendant Circumstances (something that has to be true in order for it to be crime)
VOLUNTARY ACT: product of effort, determination, & conscious/bodily control
Ask Whether: Someone has mental control over act OR was he coerced or forced by circs?
(Words alone not enough- except when encouraging crime)
-Utilitarian- can’t deter involuntary acts, but may influence people to adjust behavior, reducing harm
-Retributivist- punishment should be given to those who act of free will
>Prosecutor needs to show that D’s conduct included some voluntary act not all acts
-Identify relevant conduct of offense- e.i. imposing risk by driving drunk
-Instant act that resulted in crime is not only thing that determines voluntariness-look back in time
Martin v. State “person manifests drunkenness in public by indecent conduct, shall be fined”
D drunk at home, officers moved him to public highway and arrested him for public drinking.
-not acting voluntarily b/c not in control of his own actions EVEN THOUGH he drank freely
-time in which actus reas took place is narrowly constructed for policy reasons
People v Decina- Epileptic drives kills 4 kids,
