Criminal Law
Greenstein
[He doesn’t use a textbook]
1) Introduction (General Principles)
a) Legal structure + animating social concerns = criminal law
b) Conceptual structure + Values that animate: common to all fields of law.
i) Almost all crimes share structure: physical, mental dimension and the relationship between them.
(1) Physical: Actus reus (e.g causing the death)
(2) Mental: Mens rea (e.g by intentional killing)
c) Criminal Code
i) Legislated (statutes, not common law)
ii) Self-referential: in theory, everything you need to know should be self contained.
iii) Model criminal code
(1) Created in 50s & 60s
(2) Quite successful – 40 states have adopted or modified their own codes to reflect the model code. Not compelled to adopt – voluntary.
d) Thoughts alone are not punished – an act (or omission) is needed.
i) Would inflict more harm than benefit/don’t want to be thought police/could lead to loss of respect of law by community.
2) Objectives of Criminal Codes:
a) Set standards of appropriate behavior
b) Prescribes punishment objectives
c) Give advance warning to public as to what conduct is criminal & punishable (doctrine of “fair warning”)
i) No punishment in the absence of law
ii) Must be a statute making act illegal AND proscribing punishment
3) Defining Criminal Conduct / Elements of a Crime
a) a voluntary act (“actus reus”)
b) a culpable intent (“mens rea”)
c) concurrence between the mens rea and the actus reus;
d) causation of harm (if the crime has a result element)
Actus reus
+
Mens rea
=
Crime
–
Justification
or Excuse
Verb
Adverb
Self-Defense
Necessity
Insanity
Intoxication
Entrapment
Duress
4)
5) Malum in se v. Malum prohibitum
a) malum in se – bad in and of itself (somewhat of a misnomer – most all is socially constructed, e.g. it goes against a social norm).
b) malum pr
n benefit to community (Not about blameworthiness). Benefits of punishment must outweigh the costs of punishment (e.g. costs of punishing an insane person are too high). Requires:
(1) Conduct has caused or is the type that has the potential for causing more harm than benefit (cost/benefit analysis of conduct)
(2) Benefits of punishment outweigh harm/costs of punishment (cost/benefit analysis of punishment)
ii) Types:
(1) Deterrence (benefit)
(a) Special/Specific (to individual)
(b) General (deter the public)
(2) Rehabilitation (a benefit)
(3) Revenge (a benefit)
(a) About a psychological benefit to other people by punishing the wrongdoer.
(4) Reinforcing norms (benefit)
(a) E.g. drugs – in any amount – are wrong.
(5) Incapacitation
(a) Temporarily – in jail/prison
Permanently – execution.
