I. Introduction
a. General Overview: Communitarian vs. Regulatory
i. Two dominant models in American criminal law
1. Communitarian attempts to enforce fundamental community standards (what I agree with)
a. Limits to the law: only those standards deemed fundamental are the proper subject of criminal sanction
2. Regulatory attempts to enforce prospective rules enacted by the government
a. Limits to the law: no standard may target certain discriminated-against groups of Americans on the basis of group membership alone
b. Christie: Binary Classification
i. Determinism (what I agree with)
1. Social responsibility
a. Regard crime as interactive relation between offender and society
b. Social factors determine (1) necessity and (2) control over criminal acts
ii. Autonomous
1. Personal responsibility
a. Regard criminal act from particular point in time (personal history immaterial here)
b. Criminal sanction justified by classification of offender into categories of deviance
c. Devlin & H.L.A. Hart
i. Devlin: Public morality essential to maintain particular societies
1. Crime is treason to society
2. Immorality determined by standard of right-thinking person
3. No difference between public and private or “harmless” morality
ii. H.L.A. Hart: Only principle of punishment is harm to others (what I agree with)
1. Immoral
I. Criminal Homicide: Common Law Tradition
a. Always assume second degree murder unless aggravating or mitigating factors
i. Voluntary homicide: Entails some notion of autonomy and responsibility for action
1. Aggravated (1st degree) or non-aggravated (2nd degree)???
a. Aggravated: Any circumstance attending the commission of a crime or tort which increases its guilt or enormity or adds to its injurious consequences, but which is above and beyond the essential constituents of the crime or tort itself.” For example, aggravated assault is usually differentiated from simple assault by the offender’s intent (i.e., to murder, to rape etc.), the extent of the injury to the victim, or the use of a deadly weapon. An aggravating circumstance is a kind of attendant circumstance and the opposite of an extenuating or mitigating circumstance, which decreases guilt.
b. Actus reus
i. Voluntary act that causes social harm. Thoughts alone do not constitute a crime.
ii. “Actus reus” includes three requirements:
1. That the agent ACT
2. That the act be done VOLUNTARILY and
3. That the act CAUSE a SOCIAL HARM
iii. Common Law Culpability: Actus Reus; Mens Rea
