Evan Lee, Criminal Law: Cases and Materials, by Saltzburg, D, Criminal Law, Fall 2011
Types of behavior we can punish are those that:
1) Cause harm
2) Cause unacceptable risk of harm
3) Cause action preparatory to harm
II. GENERAL JUSTIFICATION OF PUNISHMENT – Every coercive government actions must be supported by justification in a democratic society. Philosophy behind justification asks 2??: when is punishment permissible? and to when is it required?
A. Deontological (Retribution theory) (backward looking approach)
a. Punishment is justified when it is deserved and it is deserved when the wrongdoer chooses to break society’s rules.
b. Even if the punishment does not bring any social good/reduction in crime, it would be wrong not to punish; “desert of deeds.”
2) Difference b/w Utilitarian approach:
a. Retributivism is backward and justifies punishment solely on the basis of the voluntary commission of a crime. Utilitarian approach does not justify punishment unless it bring net social good
b. Premise of utilitarian is that people are rational and hedonistic calculators whereas Retributivism is based on view that humans generally possess free will.
3) Different retributive theories
a. Assaultive retribution/public vengeance/societal retaliation
i. Eye-for-an eye concept: Punishment gratifies passion for revenge that would otherwise be satisfied through private vengeance. Punishment is equivalent to harm inflicted by ∆.
ii. Punishment deters private revenge (disguised from of utilitarianism)
iii. When person is victim of crime, he justifiably resents criminal for violating his rights and his passion for punishment is morally desirable because they demonstrate that crime victim respects himself.
b. Protective Retribution based on principles of personhood
i. Breach of hypothetical social K: Punishment as means of securing moral balance in society
ii. Quasi-K/Unfair enrichment: Compliance w/ rules of society burdens e/ member of community to exercise self-restraint. Punishment requires payment of debt that person owes to society.
iii. Unfair competitive advantage: Person’s failure to exercise self-restraint interrupts social equilibrium and person has the benefits of the system of rules.
iv. Evening up the cosmic books: Justification illustrates society’s respect for moral wrongdoer by giving him right to be punished and thereby rendering him free of moral guilt and stigma.
c. Victim vindication
i. By committing offense, criminal implicitly send message to victim and society that his rights and desires are more valuable than those of victim.
ii. Punishment reaffirms victim’s worth as human being.
4) Criticisms of Retributivism
a. Imperfect correspondence of jus talionis.
i. Incarceration is used as the punishment for nearly everything (not true “eye-for-an-eye”). Once you get away from the perfect one-to-one correspondence, punishment becomes very arbitrary.
b. Unjustness of existing social order
i. We don’t all start at the same place
c. Shared guilt
i. Only person punished is the criminal himself, when, in reality, other people have been part of creating the mental composition of the criminal.
d. Who has the moral standing to punish?
i. It is not accurate to view the world as criminals & non-criminals.
e. Retributivism glorifies anger and legitimizes hatred
f. Retributivism is irrational b/c it is founded on emotions. (Retributionists argue that anger – including the retributive urge to punish – is morally good when it demonstrates that we value ourselves and the rights of o/ crime victims)
B. Consequentialist (Utilitarian) Theory (Forward looking approach)
1) Utilitarian approach believes that human beings generally act hedonistically and rationally.
a. Theory assumes that people will take into account of the overall result of their conduct on social net happiness.
b. As a calculator, a person is assumed to avoid criminal activity if the perceived potential pain (punishment) outweighs the expected potential pleasure (criminal awards).
2) Utilitarian reasons for punishment:
i. General Deterrence – Δ is punished to convince general community to forego criminal conduct in the future
A. Δ is a means to desired end, or reduction in crime
B. Δ’s punishment teaches us what conduct is impressible
C. It instill fear or punishment in would-be violators of the law.
D. Criticisms to Deterrence
(Be careful of the context in determining whether it deters or not. Thus when you talk about deterrence, talk about it in that particular context)
1. Danger of general assumption about deterrability
2. Tendency of actors to underestimate the likelihood of apprehension
3. Simple message “use a gun, to prison” deter more effectively.
ii. Specific Deterrence – Δ’s punishment is meant to forego future criminal conduct by Δ in one of two ways:
A. Incapacitation: Δ’s imprisonment prevents him from committing crimes in society during segregated period because Δ is harmful and there is risk that D will repeat his crime.
B. Intimidation: Δ’s punishment reminds him that if he returns to a life of crime, he will experience more pain.
C. Criticisms of Incapacitation:
1. Guards and other prisoners are still at some risk of being harmed
2. There is constitutional minimum of treatment in prison.
3. Relatively little empirical basis for predicting future dangerousness
4. Recidivism among certain types of criminals may be higher
b. Rehabilitation: Use of correctional system to reform Δ rather than to secure compliance via fear of punishment.
i. Methods of rehabilitation:
A. Psychiatric care
B. Therapy for drug addiction
C. Academic or vocational training
ii. Criticisms of rehabilitation
A. Do we know how to reform offenders?
B. Are they deserving of scarce resources?
c. Teaching norms to society: Idea that not everybody in society what our norms are and that punishment should be in place to teach them what they are.
i. Criticism: System ignores the dignity / human rights of offenders b/c humans are used as simply a means to an end.
C. Denunciation or Disavowal (Expressive Theory):
1) Punishment is an expression of society’s condemnation and relative seriousness of crime.
2) Denunciation is a hybrid of utilitarianism and retribution.
a. General justification comes from utilitarian goal of preventing future crime
b. Distributive justice of who and how much punishment comes from retributivism
3) Educative aspect of expressive theory –
a. Symbolic non-acquiescence/Moral condemnation (Society informs to individual that community condemns a specific conduct and that we value victim’s worth – retribution.)
b. It channels community anger away from personal vengeance
c. Social cohesion
d. Authoritative disavowal (State punishes party as a way of disavowing – refuse responsibility of – an act.)
e. Vindication of the law (Law will not be law if it is not enforced or vindicated.)
f. Absolution of others (Absolution of others who are not guilty to the crime)
III. THE ACT REQUIREMENT: ACTUS REUS
A. Voluntary Act
1) Actus reus requires either a relevant voluntary act or omission to act where there is a legal duty to act
a. No punishment for evil thoughts alone
b. Act that brought about the result must be voluntary
2) Definition of “voluntary”
a. Holmes: voluntary act is a “willed muscle contraction”
b. MPC lists acts that are NOT to be considered voluntary:
i. Reflex or convulsion
ii. Movement during unconsciousness or sleep
iii. Conduct during hypnosis or post-hypnosis suggestion
iv. Act that is not result of effort or determination of actor
3) Omission: Punishment for failure to act only where person had legal duty to act
a. Duty to act can be established only by the following circumstances:
i. Statute imposes duty (Statute that says it is a crime not to file income tax return imposes duty to file)
ii. Status relationship imposes duty (Parental relationship)
iii. Contractual duty (Lifeguard)
iv. Duty was voluntarily ASSUMED thereby leaving victim in a worse position (If you start to rescue someone and you leave hi
constitute crime of indecent exposure, evidence must be sufficient to sustain that conduct was committed with deliberate intent of being lewd or indecent. Court is requiring purpose/desire to achieve something socially undesirable. Mere knowledge that something socially undesirable was going to happen is insufficient.
6) MPC allows application/test of culpability to e/ element of offense.
7) When no culpability term appears in an offense, use recklessness; if only one term appears, use that term for all elements within the offense
C. Specific Intent v. General Intent
1) Dressler: three categories of “specific intent” crimes
a. Intent to commit some future act
i. Common law burglary à intent to break and enter with attempt to commit felony therein. (“Commit felony therein” = future act)
ii. Intent to kill murder
iii. Theft à intent to deprive owner of property
iv. Kidnapping à intent to hold the person against his or her will
b. Special motive or purpose
i. Possession with attempt to distribute drug; Distribution of drug is future act so this can be categorized in both A & B.
ii. Hate crime à Motive is to express hatred of that person’s category allows enhancement of punishment.
c. Awareness of a special attendant circumstance
i. Receiving goods that are stolen è Knowledge that goods are stolen
ii. If crime requires knowledge of that attendant circumstance then ignorance of such knowledge excuses from crime.
1) Anything that isn’t a specific intent crime under statute is a general intent crime.
a. If act contains words such “with the intent,” “with the purpose” this is a specific intent.
b. All attempts (attempt, solicitation, conspiracy) are specific intent offenses
c. Intoxication defense is available only in specific intent offenses.
d. Assault (attempted battery) is general intent crime. (EXCEPTION)
ii. Other forms of homicide
iii. Breaking and entering
2) MPC abolishes “specific” and “general” intent. In MPC terms, mistake of fact is a defense if it negates mental state required to establish any element of offense.
a. If they consciously disregarded the substantial and justifiable risk that victim was not consenting, then they recklessly compelled victim, and their mistaken belief that victim was not consenting would be no defense.
3) United States v. Villegas: what is “knowledge”?
a. Background: ∆ charged w/ knowingly discharged pollutants into navigable waters and knowingly placing others “in imminent danger of death or serious body injury.”
b. Analysis: Court debated b/w substantially certain test and high probability test to determine knowingly. Court determined there was lack of evidence to establish that ∆ was aware that his act was highly probably to place o/ in imminent danger.
c. “High probability” test should be applied to willful blindness cases only and not to every offense where knowledge is required.
i. Stranger gives you suitcase and asks you to take it to station in exchange for $1,000. You could reasonably assume that there was something illegal in suitcase. In order to avoid knowledge, you decide not to look in the suitcase but there was awareness of high probability that there was something bad in there and this should sufficient to constitute knowledge.