Criminal Law-Fall 2012
Professor Judith Scully, Stetson University College of Law
A. Principals of Criminal Punishment
Utilitarianism
-Is a form of consequentialism, which in its pure form, holds that the justification of a practice depends only on its consequences.
-Laws should be used to exclude all painful or unpleasant events.
-Utilitarian’s are thought to make a cost-benefit analysis prior to committing a crime.
Forms of Utilitarianism:
1. General Deterrence
Ex. D is punished in order to convince the general community to forego criminal conduct in the future.
2. Individual Deterrence
Ex. D’s punishment is meant to deter D’s future misconduct by intimidation. (“we scare him straight”)
3. Incapacitation
Ex. D’s imprisonment prevents him from committing crimes in the outside society during the period of segregation.
4. Rehabilitation
The goal is still to reduce future crime, however advocates prefer using the correctional system to reform the wrongdoer, i.e., psychiatric care, therapy for drug addiction, etc.
Retributivism
-Two assumptions made: Humans possess free will and punishment is justified when it is deserved
-Believe that punishment is justified when it is deserved. It is deserved when the wrongdoer freely chooses to violate society’s rules.
-The wrongdoer should be punished, whether or not it will result in a reduction of crime.
-Accordingly, it is morally fitting that an offender should suffer in proportion to his desert or culpable wrongdoing.
-Looks back in time and justifies punishment solely on the basis if the previous, voluntary commission of the crime.
Forms:
1. Assaultive retribution, public vengeance, or societal retaliation:
-It is morally right to hate criminals. Society wants to hurt the wrongdoers
-Criminal harmed society, therefore society wants to harm him back.
2. Protective retribution
-Punishment is a means of securing a moral balance in the society
-As long as everyone follows the rules, any equilibrium exists—everyone is similarly benefited and burdened. *If a person fails to exercise self-restraint when he could have, he gives up on what others are burdened by and creates an imbalance in the system.
*Therefore, he becomes a free rider: he has the benefits of the system of rules, without accepting the same burdens. Thus, a criminal owes a debt to society.
3. Victim Vindication
-Punishment is a way to “right a wrong”
-Once he criminal receives punishment proportional to the offense, the “score” is made even.
B. Proportionality
1. General Principle
A general principle of criminal law is that punishment should be proportional to the offense committed. The difficulty lies in determining the meaning of the term “proportional.”
2. Utilitarian Meaning
In a utilitarian system of criminal justice, punishment is proportional if it involves the infliction of no more pain than necessary to fulfill the law’s deterrent goal of reducing a greater amount of crime.
Example: Assume that based on a utilitarian calculus it is determined that 10 units of crime can be prevented by the imposition, or threatened imposition, of 6units of punishment. Six units of punishment constitutes proportional punishment (assuming that fewer units of punishment would not do the job as well); more than 6 units of punishment would be excessive (assuming it would not deter more units of crime).
3. Retributive Meaning
Proportionality of punishment is an especially critical concept in retributive theory. To retributivists, punishment should be proportional to the harm caused on the present occasion, taking into consideration the actor’s degree of culpability for causing the harm.
Example: A murderer should be punished more than a robber, because murder causes more harm than robbery. But, as well, a person who kills another person recklessly should be punished less severely than one who takes a life intentionally, because a reckless wrongdoer is less morally culpable in causing the harm—and, therefore, less deserving of punishment—than an intentional wrongdoer.
4. Difference In Outcome: An Example
Utilitarian’s and retributivists may reach different results in determining how much punishment is proportional to an offense. For example, in most states, a repeat offender (“recidivist”) is punished more severely for an offense than a first-time violator. Thus, a third-time thief might be sentenced to 25-years-to-life imprisonment, although a first-time offender would receive a much more lenient sentence.
a. Utilitarian Analysis
The preceding example of a recidivist law might be valid: the threat of very long imprisonment may be necessary to deter a recidivist, who has been undeterred by lesser punishment in the past; in addition, a third-time felon—a person who has proven that he is likely to continue to transgress if allowed to do so— may need to be incapacitated for a longer period of time. However, it should be kept in mind that a utilitarian will only inflict this heightened pain if there is a reliable reason to believe that it is necessary for general or specific deterrent purposes.
b. Retributive Analysis
A wrongdoer should receive punishment proportional to the crime just committed, taking into consideration both the harm caused and the actor’s culpability. The criminal paid his debt to society for his earlier offenses, so these crimes are irrelevant to the present punishment; and a retributivist would not punish a person for predicted future crimes. Therefore, it is unlikely that one can justify a sentence of 25-years-to- life for theft, even for a recidivist.
5. Constitutional Law
The Eighth Amendment Cruel and Unusual Punishment Clause prohibits grossly disproportional punishment.
C. Burden of Proof in appellate cases
The appellate court must assume that the trier of fact, usually the jury, resolved any conflicts between factual claims in favor of the prosecution. Thus, the standard on appeal is whether a rational trier of fact could reasonably have reached the result that it did.
Owens v. State: Whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
D. Actus Reus (guilty act)
1. For there to be criminal liability, the defendant must have either performed a voluntary physical act or failed to act under circumstances imposing a legal duty to act. An act is defined as a bodily movement. A thought is not an act. However, speech is an act that can cause liability (e.g., perjury, solicitation)
2. The act must be voluntary
a.) The defendant’s act must have been voluntary, in the sense that it must be a conscious exercise of the will.
Rationale: An involuntary act will not be deterred by punishment. The following acts are not considered “voluntary” and therefore cannot be the basis for criminal liability:
(1) Conduct that is not the product of the actor’s determination
Ex. A shoves B into C, with the result that C falls to his death. B can not be held criminally liable for C’s death.
(2) Reflexive or convulsive acts
(3) Acts performed while the defendant was either unconscious or asleep unless the defendant knew that she might fall asleep or become unconscious and engaged in dangerous behavior.
Omission as an “Act”
People v Beardsley
There must be a voluntary act proven by the prosecutor, unless there are omissions and the law must legally recognize them. The prosecutor is the one to establish these categories of omission and that they exist. (the burden is on the prosecutor). Omission to perform; a duty to which one has and is physically capable.
Omissions: (The only five recognized by law)
i. Statutory relationship {Police officer has a duty to protect the public}
ii. Status relationship-duty to the people you are transporting. Very narrowly defined category, be careful.
a. Husband and wife,
b. parent has a duty to child, and
c. people transporting others, i.e., captain of a ship.
iii. Contractual duty/relationship
iv. Voluntary assumption of duty which prevents others from rendering aid: One who voluntarily assumes the care of another must continue to assist if a subsequent omission would place the victim in a worse position than if the good Samaritan had not assumed care at all.
v. Created the risk of harm: One who creates a risk of harm to another must thereafter act to prevent ensuing harm.
Ex. Believing B can swim, A pushes B into the pool. It becomes apparent B cannot swim and A takes no steps to help.
*As a general rule, the duty to act arises when the defendant is aware of the facts creating the duty to act (e.g., the parent must be aware his child is drowning before his failure to rescue the child will make him liable). However, the law may impose one to learn the facts (e.g., a lifeguard asleep at his post would still have a legal duty to aid a drowning swimmer).
*Must also be reasonably possible for the defendant to perform the duty or to obtain others in performing it.
E. Mens Rea
Specific Intent/ General Intent
-Specific intent v. General intent (common law distinction; not applied in MPC §2.02)
*Concepts are abandoned in jurisdictions that apply the Model Penal Code.
*No general, known definition, therefore, must be inferred.
*Always a general intent component in a specific intent crime
*General intent (Culpability; broad):
1) No particular mental state, just an actus reus was performed with a morally blameworthy state of mind.
2) Less culpable mental state at times è “recklessness”, or “negligence”
3) Any mental state, whether expressed or implied, in the definition of the offense that relates solely to the acts that constitute the social harm of the criminal offense.
*If a crime is defined to have an intentional application only, it is general because the mental state intention pertains to the actus reus of the crime only.
*Specific intent (elemental; narrow): a mental state expressly set out in the definition of the crime, cannot be inferred.
*Designates a special mental element within the definition:
1) An intent to commit some future act, separate from the actus reus.
(Possession of Mary Jane with intent to sell)
2) Proof of a special motive or purpose for committing the actus reus.
(Offensive contact upon another with the intent to cause humiliation)
3) Proof of the actor’s awareness of an attendant circumstance.
(Intentional sale of obscene literature to a person known to be under 18)
Strict Liability
1. An offense is strict liability in nature if commission of the actus reus of the offense, without proof of a mens rea, is sufficient to convict the actor. The major significance is that certain defenses, such as MoF, are not available.
a.) Strict liability offenses, also known as public welfare offenses, are generally “regulatory offenses” that implicate public health or safety. They generally involve a relatively low penalty and are not regarded by the community as involving significant moral impropriety.
Ex: Statutes that prohibit the manufacture or sale
deceased’s death, and consequently, is a cause-in-fact of the deceased’s death.
II. Proximate Cause (Legal Cause)
1. A person who is an actual cause of resulting harm is not responsible for it unless she is ALSO the proximate (or “legal”) cause of them. The linchpin of proximate cause is whether the intervening party’s acts were reasonably foreseeable.
a. Relationship of Proximate cause to Actual cause
“Actual cause” analysis identifies the potential candidates for legal responsibility for a result. The purpose of “proximate cause” is to determine who among these candidates should be held accountable for the harm. When a D is the proximate cause of a result, the jury is saying that it is morally just to hold D responsible for the harm.
b. Direct Cause
An act that is a direct cause of social harm is also the proximate cause of it. Thus, after looking at the facts in a case, if there was not any actual (but-for) cause of the result that came into the picture after D’s voluntary act, then D is the direct cause of the social harm.
c. Intervening Cause (no exact rule on an intervening cause, it will come down to whether the intervening act was so unforeseeable to a reasonable person in the D’s situation, becoming a supervening cause that breaks the chain of causation.)
i. An intervening cause is an actual cause (a but-for cause) of social harm that arises after D’s causal contribution to the result. It is an “intervening” cause in that it occurs after the defendant’s conduct or omission, but before the resulting social harm for which the defendant is being prosecuted.
ii. An intervening cause can be dependent or independent of the defendant’s act. An intervening cause is dependent if it occurs in response to the defendant’s earlier conduct. And intervening act is independent if the factor would have come into play even in the absence of the defendant’s conduct.
iii. Dependent is a responsive intervening cause that occurs in reaction or response to the defendant’s prior wrongful conduct. Independent or coincidental intervening factor is a (1) Act of God, (2) a victims act that is free, deliberate, informed human intervention, or (3) the result of a 3rd party (a doctor who must be acting GROSSLY negligent or reckless).
iv. An act may be intervening, but to relieve liability, the intervening act must be supervening and break the chain of causation. Defense is trying to argue that intervening factors were unforeseeable and therefore supervening and the prosecutor is trying to show that the harm was a direct result from the defendants action (i.e. he caused it to happen).
III. Acceleration
A. “I accelerated the rate of time of death” Would have died in 30 minutes, but expert testified that the second harm caused him to die in 10 minutes.
*First harm has to be lethal (in context of death, unlikely to use this theory in any other type of case) and a medical expert testifies the 2nd harm sped the death along. Acceleration theory is a specific branch of aggravated causation theory.
IV. Substantial Factor
A. Two defendants acting independently and either one of the acts could have caused the harm. Have to show that either one of the acts could have caused the death. (Couldn’t have used this in Oxendine because the second assault was shown by medical expert that it couldn’t have independently resulted in death).
V. Aggravation
A. An individual acts with another individual where one injury is (the first injury) followed by another injury that aggravates the first injury, but combined they cause the death. (The injuries can be lethal or non lethal)
* Are intervening – supervening factors?
*If an intervening factor is normally foreseeable (simple negligence), it does not break the chain of causation. If it is gross negligence (unforeseeable), then it is a supervening factor that breaks the chain of causation.
