Prof. Robbins
Criminal Law
Spring 2013
A. Theories of Punishment
1. Different Theories- Two broad theories of punishment exist: utilitarianism and retribution.
2. Principles of Utilitarianism
a. Augmenting Happiness- Utilitarianism holds that the general object of all laws is to augment the total happiness of the community by excluding, as much as possible, everything that subtracts from that happiness, i.e., everything that causes “mischief” (pain).
b. Role of Punishment- Both crime and punishment are evils because they both result in pain to individuals and to society as a whole. Therefore, the pain of punishment is undesirable unless its infliction is likely to prevent a greater amount of pain in the form of future crime.
c. Forms of Utilitarianism
i. General Deterrence- A person is punished in order to send a message to others (the general society or, at least, persons who might be contemplating criminal conduct) that crime does not pay.
ii. Specific Deterrence- D is punished in order to deter D from future criminal activity. This is done in either of two ways: by incapacitation (incarcera- tion of D prevents her from committing additional crimes in the general community for the duration of her sentence);and/orby intimidation (D’s punishment serves as a painful reminder, so that upon release D will be deterred from future criminal conduct).
iii. Rehabilitation- Advocates of this form of utilitarianism believe that the criminal law can prevent future crime by reforming an individual, by providing her with employment skills, psychological aid, etc., so that she will not want or need to commit offenses in the future.
3. Principles of Retribution
a. Just Deserts- Punishment of a wrongdoer is justified as a deserved response to wrongdoing. Retributivists punish because of the wrongdoing—the criminal gets his just deserts—regardless of whether such punishment will deter future crime.
b. Rationale- Wrongdoing creates a moral disequilibrium in society. The wrongdoer obtains the benefits of the law (namely, that other people have respected his rights), but he does not accept the law’s burdens (respecting others’ rights). Proportional punishment of the wrongdoer— “paying his debt”—brings him back into moral equilibrium. An- other justification is that both crime and punishment are forms of communication: one who commits a crime sends an implicit message to the victim that the wrongdoer’s rights are more important than others’ rights; punishment is a symbolic way of showing the criminal and reaffirming for victims—that this message was wrong. Punishment proportional to the offense defeats the offender: it brings him down to his proper place in relation to others.
B. Proportionality of Punishment
1. General Principle- A general principle of criminal law is that punishment should be proportional to the offense committed.
2. Utilitarian Meaning- 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.
3. Retributive Meaning- 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.
4. Constitutional Law- The Eighth Amendment Cruel and Unusual Punishment Clause prohibits grossly disproportional punishment.
a. Death Penalty Cases- The Supreme Court has held that death is grossly disproportional punishment for the crime of rape, because the latter offense does not involve the taking of human life.
b. Imprisonment Cases- According to the Supreme Court’s most recent pronouncement, there is only a very “narrow proportionality principle” outside the context of the death penalty. The legislature (not the judiciary) has primary authority in setting punishments. No noncapital incarcerative punishment will be declared unconstitutional unless there are objective grounds not simply a judge’s own subjective views of the propriety of the punishment—for determining that the punishment is grossly disproportionate to the crime.
C. Legality
1. Requirement of Previously Defined Conduct
a. General Principle- The so-called “principle of legality” is that there can be no crime without (pre-existent) law, no punishment without (pre-existent) law.
b. Constitutional Law- The principle of legality not only is a common law doctrine, but has deep constitutional roots. Legislatures are prohibited by the Ex Post Facto Clause of the United States Constitution from enacting laws that would punish conduct that was lawful at the time of its commission, or that increases the punishment for an act committed before the law took effect. In turn, courts are prohibited from enlarging the scope of criminal statutes by the Due Process Clause.
2. Fair Notice- A corollary of the legality principle is that a person may not be punished for an offense unless the statute is sufficiently clear that a person of ordinary intelligence can understand its meaning. This is a fundamental common law concept, with constitutional roots as well in the Due Process Clause.
3. Nondiscriminatory Enforcement- Another corollary of the legality principle is that a criminal statute should not be so broadly worded that it is susceptible to discriminatory enforcement by law enforcement officers, thereby unduly expanding government power.
D. Burden of Proof
1. Burden of Production- This burden relates to the question of which party—the defendant or the government—has the obligation to first introduce evidence on a given issue. The party with this obligation, who fails to satisfy this burden, loses on the issue. In general, the government has the burden of production regarding elements of a crime; the defendant carries the burden as to affirmative defenses.
2. Burden of Persuasion- Once the burden of production has been satisfied, the next question becomes: who has the burden of persuading the factfinder on the particular issue? The party with the burden of production need not have the burden of persuasion.
a. Degree of Burden
i. Elements of a Crime- The Due Process Clause of the Constitution requires that the government carry the burden of persuasion, beyond a reasonable doubt, as to “every fact necessary to constitute the crime charged.” The Court has limited the word “fact”—and, thus, the prosecutor’s constitutional obligation to carry the burden of production beyond a reasonable doubt—to elements of an offense, and not to defenses and mitigating factors.
ii. Defenses to Crimes- A legislature is free to place the burden of persuasion regarding a criminal law defense on either party—the defendant or government—and to set the burden very high (proof beyond a reasonable doubt), some what high (clear and convincing evidence) or low (proof by preponderance of the evidence).
Part 2 Actus Reus
A. Definition- The “actus reus” of an offense is the physical, or external, component of a crime what society does not want to occur.
B. Two Elements- The actus reus of a crime consists of two components, both of which must be proved by the prosecutor beyond a reasonable doubt.
1. Voluntary Act or Legal Omission- Generally speaking, there can be no crime in the absence of conduct. But, only a certain type of conduct qualifies, namely, conduct that includes a voluntary act. In rare circumstances, a person may be prosecuted because of what he or she did not do—an absence of conduct. An “omission” substitutes for a voluntary act when the defendant has a legal duty to act.
2. Social Harm- People are not punished for conduct (or omissions), but rather for conduct (or omissions) that result in “social harm.”
Voluntary Act
A. General Rule- A person is not ordinarily guilty of a criminal offense unless his conduct includes a voluntary act.
1. Common Law Definition of Voluntary Act- A “voluntary act” is a willed muscular contraction or bodily movement by the actor. An act is “willed” if the bodily movement was controlled by the mind of the actor.
2. Model Penal Code- The MPC does not define “voluntary act.” It provides examples of involuntary actions: a reflex or convulsion; bodily movement while unconscious or asleep; conduct during hypnosis or as a result of hypnotic suggestion; and/or “a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.”
3. Constitutional Law- The Supreme Court has never expressly held that punishment of an involuntary actor is unconstitutional. However, it has invalidated statutes that criminalize a “status” or “condition” (such
would be counter-utilitarian. (There is a competing utilitarian argument set out in the Main Outline.)
2. Retributive Argument- The mens rea requirement is solidly supported by the retributive principle of just deserts. Aperson who commits the actus reus of an offense in a morally innocent manner, i.e., accidentally, does not deserve to be punished, as she did not choose to act unlawfully.
II. COMMON LAW
A. “Intentionally”
1. Definition- A person commits the social harm of an offense “intentionally” if: (1) it was her conscious object to cause the result; or (2) if she knew that the result was virtually certain to occur because of her conduct.
2. Transferred Intent Doctrine- Courts frequently speak of a “transferred intent” doctrine: A person acts “intentionally” as the term is defined above, if the result of her conduct differs from that which she desired only in respect to the identity of the victim.
B. “Knowledge” or “Knowingly”
1. Definition- Some offenses require proof that the actor had knowledge of an attendant circumstance. At common law, a person acts “knowingly” regarding an existing fact (an “attendant circumstance”) if she either: (1) is aware of the fact; (2) correctly believes that the fact exists; or (3) suspects that the fact exists and purposely avoids learning if her suspicion is correct. The latter form of “knowledge” is sometimes called “wilful blindness.”
C. Risk-Taking: “Recklessness” and “Criminal Negligence”
1. Overview- Risk-taking is properly divisible into various types: justifiable risk- taking; unjustifiable risk-taking that may properly result in tort damages; and unjustifiable risk-taking that may also result in criminal punishment. The latter forms of risk-taking are frequently described as “negligent” risk-taking and “reckless” risk-taking.
2. Unjustified Risk-Taking- In order to determine whether risk-taking is justifiable or not, one must look at three factors: the gravity of harm that a reasonable person would foresee might occur as the result of the risk-taking conduct; the probability that this harm will occur; and the reason for the proposed conduct, i.e., the benefit to the individual or society of taking the risk. A risk is unjustifiable if the gravity of the foreseeable harm, multiplied by the probability of its occurrence, outweighs the foreseeable benefit from the conduct.
3. “Criminal Negligence”- A person acts in a “criminally negligent” manner if she should be aware that her conduct creates a substantial and unjustifiable risk of social harm. Synonyms for “criminal negligence,” include “gross negligence” and “culpable negligence.”
4. “Recklessness”
a. Holmes’s View- Oliver Wendell Holmes, Jr., believed that a person acts “recklessly” if she should be aware that she is taking a very substantial and unjustifiable risk. This is simply a heightened version of “criminal negligence.” Notice: “civil negligence” involves unjustifiable risk taking; “criminal negligence” is substantial and unjustifiable risk-taking; and “recklessness” (as defined here) is very substantial and unjustifiable risk-taking.
b. Modern Definition- Most courts now provide that a person acts “recklessly” if she consciously disregards a substantial and unjustifiable risk that her conduct will cause the social harm of the offense. Under this definition, “recklessness” differs from “criminal negligence” in that it requires that the actor subjectively be aware of the substantial and unjustifiable risk.
