Theories of Punishment
Dudley Stevens – should we punish in certain circumstances?
Gementera – what kinds of punishment are appropriate
Du – when a light sentence is appropriate
Keeler – defining something a certain way may create a common law crime.
There must be notice of crime
Foster – how do you interpret some obvious words
Martin – commission of offense requires a voluntary act. Narrow time framing of voluntary act
Decina – broader time framing – voluntary act is creating situation which may possess risk
Utter – voluntarily inducing involuntariness isn’t really involuntary
Beardsley – subject to some exceptions, there is no duty to help someone who is in trouble
Cunningham – elemental approach to mens rea.
What element of offense does specific mens rea term refer to
Conley – mens rea may be inferred from circumstances
Nations – willful blindess – somewhere between knowing and reckless
Staples – common law presumption against strict liability applies when there is no mens rea mentioned.
Garnett – inferred mens rea of strict liability from context.
Dissent – severity of punishment indicates not a strict liability offense
Mistake of fact
Navarro – unreasonable mistake can be defense if it negates mens rea
Mistake of law
Marrero – mistake of law is defense it at the time of the act it was good law, but later found to be erroneous
Cheeks – some laws require that they be intentional violation of law.
In that case a mistake of law is a defense
Oxendine – to show aggravating cause, one would have to show that the combination of 2 or more injuries caused deatth
Kibbie – depends on whether intervening cause was sufficiently unforeseeable and supervening (coincidental or independent)
Guthrie – 1st degree murder requires premeditation and deliberation.
Enough time for actor to be conscious of his act
Morrin – enough time to give your actions a second look.
Premeditation – thinking about the act you are going to commit.
Deliberate – weigh out different aspects of it
Midgett – abusive father did not premeditate and did not have intent to kill, so not guilty of 1st degree murder with intent to kill
Forrest – premeditated and deliberate act.
Can lack malice in traditional sense, but malice translates to premeditation and deliberation in common law
Girouard -words alone are not adequate provocation
Holley – mixed subjective objective test of provocation.
Subjective – if actor was provoked from actor’s viewpoint.
Objective – was the provocation adequate .
Two prongs – gravity of provocation – can take into account individual characteristics of person
Would provocation make reasonable person act same way – can only take into account age and sex of actor
Casassa – finding of extreme emotional distress is not alone a defense.
It just allows jury to find a defense if it is reasonable
Nieto Benitz/Berry – whether defendant’s conduct exhibited ordinary recklessness or extreme recklessness
Hernandez – drunk driving was reckless, not negligent.
Defense should have pointed out that higher mens rea encompasses lower mens rea
Williams – ordinary negligence was basis for negligent homicide charge because of statute
Fuller – defendant was guilty of felony murder because of statute, but really shouldn’t have been because the felony was a petty felony
Howard – inherently dangerous felony has to be inherently dangerous in the abstract (no safe way to commit the offense)
Alston – insufficient evidence of force with regards to the incident itself. Narrow time framing
Rusk – how much resistance is required – watered down earlier common law requirement of utmost resistance. Reasonable fear of harm
Berkowitz – rejected resistance requirement.
Also rejected notion that only force required is enough for act itself
MTS – freely given and affirmative consent must be obtained. Only force required is force required for act
Regina – any mistake is a defense
Mike Tyson – there must be some equivocal conduct to get jury instruction of mistake
Peterson – question about who was the initial aggressor. Also was defendant eligible for castle doctrine in his driveway?
Goetz – what factors do we take into account to determine if belief was reasonable
Wanrow – difference in sex should be taken into account as well
Norman – mixed subjective and objective test necessity
defendant must believe necessary to kill to escape imminent bodily harm.
Belief must be reasonable for person of ordinary firmness
Defense of habitation
Ceballos -use of indirect force is not justified for public policy reasons
Nelson – jury decides if the balancing of evils was appropriate.
Harm cannot be disproprtionate
Dudley Stevens – necessity not a defense to murder
Contento-Pachon – whether the imminence requirement and reasonability of escaping was satisfied
Unger – blurred distinction between necessity and duress
Anderson – not a defense to murder, threat was not great enough
Graves – broadens time frame. Culpability of getting drunk transfers to offense
Wilson – if defendant believes that if society knew what he knew they would agree with him, then he has a defense
Gentry – cannot attempt involuntary manslaughter, because it does not have intent
Bruce – cannot attempt felony murder because it does not have intent
Rizzo – limits of dangerous proximity test
Reeves – what is strongly corroborative under MPC?
McClosky – abandonment encourages not committing offense
Cotton – court ruled successful solicitation required.
But statute said attempt, so incorrect ruling probably
Swain – can only conspire specific intent crimes
Pinkerton – members of conspiracy can be held liable for acts by co-conspirators in furtherance of conspiracy, within scope of conspiracy, foreseeable as natural consequences of felony.
Once in a felony, it continues till affirmatively withdrawn
Lauria – suppliers must have intent to participate (by special interest in activity)
Azim – conspiracy can be inferred from circumstances.
Very subtle changes can change our inference of conspiracy
Cook – looked at time and decided no time to conspire
Foster – under common law, conspiracy has to be bilateral
Kilgore – chain and wheel conspiracy – in wheel conspiracy, there must be a rim that connects spoke.
The rim is a community of interest or a knowledge of existence of each other
Hoselton – accomplice liability requires both mens rea and actus rea
Lauria – case would have come out the same – must have purpose of helping
Riley – mens rea has to do with intending to promote conduct of an offense, not the result.
Must have same mens rea as underlying offense
· Culpable state of mind
Not just conscious objective
· Knowledge that a certain conduct is sure to have a certain result
· levels of mens rea (purposely, knowingly, recklessly, negligently)
· If no mens rea is specified, at least recklessness,
· If one mens rea is specified, will apply to all elements unless contrary purpose plainly appears
· Knowledge is established if person is aware of high probability of existence of something
· presumption against strict liability, unless specified in the statute.
· Statute must have a motivation for making it strict liability
· Exceptions for public welfare offenses
· Typically small sanctions
§ 2.05 (1)
· (a) – violations are strict liability offenses
· (b) – plainly appears in the statue that legislative purpose was to impose absolute liability.
Mistake of fact
· Only reasonable mistake is a defense
· Unreasonable mistake is culpable
· General intent crimes – reasonable mistake only
· Specific intent crimes – unreasonable mistake too since it negates mens rea
· Morally wrong – may not have defense if act was morally wrong (not used much any more)
· Legally wrong – can be charged with a greater crime unintentionally committed
· ignorance or mistake of fact or law is a defense if it negates the required mens rea.
· If facts as believed to be is still a crime, then can be charged with that crime
Mistake of law
· No defense unless it negates mens rea
· No defense unless it negates mens rea
· Statute is not published
· Defendant acted on reliance on official statement later shown to be false
· Responsive/dependent causes break chain of causation if unforeseeable, and abnormal
· Coincidental/independent causes break chain causation unless it was foreseeable
· Omission does not break chain of causation
· Reaching apparent safety breaks chain
· Intended consequences obtained through other means is proximate cause
· Jury decides if its too far removed to have a just bearing
· With malice and aforethought
· Intent to kill
· Intent to cause grievous bodily harm
· Extreme recklessness
· Felony murder
· 1st degree murder – premeditation and deliberation
· Purposeful or knowing
· Under reckless and extreme indifference to human life
· Traditionally fixed categories
· Modern approach – should be calculated to inflame passion in reasonable person and cause him to act for the moment from passion rather than reason
· Words alone are not adequate provocation
· Some jurisdiction, informative words are.
· Sends just about everything to the jury to decide if it is reasonable
· If killing is committed under extreme mental or emotional distress for which there is a reasonable explanation or excuse
e substantial steps
No additional mens rea with attendant circumstances
abandonment has to be whole and not motivated in any part by discovering something that increases probability of detection or something that makes accomplishment of crime harder. Also cannot be motivated by decision to continue later.
Invitation to commit felony
Required successful communication
Mens rea – intent that another engage in felony
Actus rea – engage in any acts : solicits, commands, requests etc.
Successful communication not required
2 or more people conspire to commit an act
Intent to agree and intent to commit crime
Some jurisdiction require proof of overt act
Does not merge with substantive offense
All members of conspiracy can be liable for each other
Must have purpose of committing crime.
Has to be an agreement to bring about a prohibited result or conduct
Knowledge is not enough
Merges with offense, unless there are offenses that have been planned but not committed yet
Rejects Pinkerton liability
Can be unilateral conspiracy
Limits conspiracy to people who are conspiring to commit same crime, and must have knowledge of existence of each other
Actus rea – giving assistance or encouragement or failing to complete a legal duty
Mens rea – with intent to promote or facilitate commission of a crime.
§ Dual intent crime – intent to aid principle, intent that aid results in crime
Encouragement can be sufficient assistance
has to successfully assist
· Natural and foreseeable consequence doctrine
mens rea for result obtained is sufficient.
Attempting to aid is enough
Does not follow natural and foreseeable consequence doctrine
· Theoretical underpinnings
o Crimes in general
· Culpable mind.
· Social harm
· Shows moral condemnation
o Theories of punishment – Utilitarianism -Moral value is determined by the effect
· Jeremy Bentham – all punishment is evil
· General deterrence – knowledge of the law
· Individual deterrence – achieved by actual imposition of the punishment
· Incapacitation – taking someone out of society so they cannot cause any more harm
· Reform/rehabilitation – theoretical mostly. Almost gone from US prison systems
o Theories of punishment – Retributivism – punishment is justified because offender deserves it.
· Negative –
§ only the guilty should be punished. Guilt is necessary conditions.
§ The innocent should not be punished.
· Positive –
§ the guilty must be punished. Guilt is necessary and sufficient condition
§ Moral deserts is justification for punishment
· Assaultive –
§ Gives form to an otherwise transient idea
§ criminals should be hated and punishment is expression of that hatred
· Protective –
§ punishment is a right of the offender to pay a debt to society.
§ Punishment restores balance.
· Murphy/Hampton –
§ offender has taken something from society. Punishment restores the balance.
§ Wrongdoer thinks they are better than society. Punishment negates superiority
o Dudley v. Stevens – killed and ate the boy on the ship
· should we punish
Killing 1 person saved life of 3
Nothing to be gained from punishment
General deterrence. Should not set precedence
No moral culpability
Guilty and therefore should be punished