CRIMINAL OUTLINE – Fall 2008
2. THE JUSTIFICATION OF PUNISHMENT
§ Why state brings criminal cases? (Individuals would engage in vindictive justice, that right was taken away by the state for the benefit of society as a whole, crime against the state, mechanisms of punishment are part of the state, state has better means of enforcement.)
§ Practical consequences of criminal cases being brought by states? (Resources of the state may be greater, standardizes the prosecution process, acts as a deterrent, expediency – several charges can be prosecuted by state at the same time, benefits of punishment are realized by society not only the individual, society v. family views not in line, prosecutor makes the decisions.
§ Retributive v. Utilitarian (categories of justification for punishment)
· Retributive – punishment is justified because people deserve it (backward looking)
· Utilitarian – justification lies in the useful purposes that punishment serves (forward looking)
§ Forms of punishment: conviction (carries social stigma, could be barrier to future employment, risk of enhanced punishment for future offense), fine, probation (def: court imposed criminal sentence which releases convicted person into community), imprisonment (deprivation of goods & services, of heterosexual relationships, security, violence, overcrowding, difficulties faced by women), death
§ How is punishment determined?
· Judges take into account the nature of the crime and D’s background when determining the sentence. (worse background AND particularly bad crime à more strict sentence)
· Trend towards mandatory sentences (less discretion for the judge; very strict version of deterrence)
· If sentence is within guidelines, then appeals over sentencing are rarely allowed.
· Do you want to give the harshest punishment possible or the least punishment which will still achieve the goal? (Least punishment to still achieve the goal – Commonwealth v. Ritter)
§ Model Penal Code: (1962)
· Not law, scholarly effort to compile a comprehensive body of criminal law. Has influenced the drafting of many state criminal statutes.
· General purposes of provisions that govern the definition of offenses are:
o Forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interest;
o To subject to public control persons whose conduct indicates that they are disposed to commit crimes…
o To differentiate on reasonable grounds between serious and minor offenses
Why Punish? Justifications/Goals of Punishment
Punishment = practice of intentionally inflicting suffering on individuals who commit socially condemnable acts
NY Penal Law
CA Penal Code
Section 1.02 (1) Purposes of the provisions governing the definition of offenses are: (a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests; (b) to subject to public control persons whose conduct indicates that they are disposed to commit crimes; (c) to safeguard conduct that is without fault from condemnation as criminal; (d) to give fair warning of the nature of the conduct declared to constitute an offense; (e) to differentiate on reasonable grounds between serious and minor offenses.
Goals of Punishment
– (a) Deterrence
– (b) Restraint
3 principles that limit the distribution of punishment
– (c) Culpability
– (d) Legality
– (e) Proportionality
– Restraint (proportional to offense)
MPC 1.02 (2) Purposes of the provisions governing the sentencing and treatment of offenders are: (a) to prevent the commission of offenses; (b) to promote the correction and rehabilitation of offenders; (c) to safeguard offenders against excessive, disproportionate or arbitrary punishment…
– Prevent excessive or arbitrary punishment
§ Retribution/Revenge – natural impulse towards vindictive justice, state usurped that right
a. What is Retribution?
b. What are the Pros/Cons of Retribution?
c. What are the Variations on Retribution?
i. Vengeance (Problem: Victim Impact Statements)
ii. Social Functions
iii. Mixed Theory
· Focus: legal revenge, punishment for the sake of punishment
· Justification: moral culpability of those who commit crimes
· MPC – not considered
· Philosophical debate:
o Moore: Offender should be punished because he deserves it, legal revenge! No concern for the future. No care given to satisfying victim’s vengeance or society’s preferences, nor to the social good of expressing condemnation – society merely has a duty to revenge against state wrongs.
o Plato: Punishment is valid to prevent further crimes by the violator and those in society who witness the punishment
o Seneca: punishment is to (1) correct the guilty party; (2) render other men better; (3) put bad men away to stop others from living in fear.
o Beccaria: Punishment is valid to prevent further injury to society or prevent others from committing a similar offense
o Hobbes: We cannot punish for any reason other than correction of the offender or direction of others
· Mixed retribution theory is possible: punishment is justified if it accomplishes social gain AND is given to offenders who deserve it
o RI Nightclub Fire (fireworks for publicity stunt) – D pled guilty to 100 counts of involuntary manslaughter, max 10 years in prison. D failed to obtain a permit for fireworks – prosecutor argued he should have known fireworks were dangerous, judge indicated that D never intended to harm anyone. Victim’s families had varying views o
a premeditated & deliberate crime of passion, Court considered goals of punishment and relied on the importance of restraint and deterrence in determining sentence – judge wanted to give least amount of punishment to achieve those goals. Determined that life imprisonment was sufficient punishment.
Blame and Punishment:
Dudley & Stephens – Ds ate boy at sea, guilty of murder
· Blame: Ct reviewed – self-defense; extreme necessity; temptation as an excuse for a crime (even if you would have succumbed to the same temptation – this is not how we create a standard; a standard is based on what we SHOULD do, not necessarily what we WOULD have done)
· Punishment: Ct considered – deterrence (attempt to change custom of the sea – but can you really deter a desperate person?) and retribution (show seriousness of the offense, this was an unlawful killing for which Ds should be punished).
3. DEFINING CRIMINAL CONDUCT – THE ELEMENTS OF JUST PUNISHMENT/RAPE
(Legality, Proportionality, Culpability) & Rape (Limitations)
o 3 levels of the Analysis of Criminal Liability – 1) did a violation of a criminal statute occur? (facial criminality); 2) If so, was that violation unjustified? (legality); 3) If so, was the person committing the violation excused? (responsibility).
o Legality – goal of this limit is to give fair warning on the nature of conduct declared to constitute an offense
o Proportionality- goal of this limit is to differentiate on reasonable grounds between serious and minor offenses
o Culpability- goal of this limit is to safeguard conduct that is without fault from condemnation as criminal
§ Actus Reus (Culpable Conduct- ACT that comprises the physical component of the crime)
· Requirement of an Act – must have a bodily movement, a thought alone is not an act (although speech may create liability, e.g., perjury, solicitation); “being” is also not an act (e.g., not illegal to addicted to drugs – a disease, illegal to procure them)
· Requirement of Voluntariness – the act must be committed voluntarily or an omission of an act of which D is physically capable (R 2d Torts – act = external manifestation of actor’s will)
o General Rule: The act constituting the actus reus must be voluntary to prove culpability.
§ MPC 2.01: (1) A person is not guilty of an offense UNLESS his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
o General Rule: Many types of acts are NOT voluntary, including…
§ MPC 2.01: (2) The following are NOT voluntary acts within the meaning of this Section: