Lecture #1 (August 16th, 2007. Thursday.)
Reading: Lawrence and Garner v. Texas (2003)
When is it justifiable for society to criminalize behaviors? (1) Tradition-in a pre-modern society. This may be enough. (2) Criminal Punishment is Coercion that needs to be punished.
What if a kid darted across road, and gets run over by a car. No one ones to convict him of murder? So not everything that causes farm can be criminalized.
Criminal Law is about the basic rules that govern liability decisions in the American criminal justice system. But it’s more than that. It’s about the structure of those rules and the relationships among those rules. It’s also about the ideas and values that underlie the rules.
Lawrence v. Texas
This case asks you to take the position of legislature and ask whether to criminalize this behavior.
Courts have different jobs then legislature. Court should only step when goes outside zone of Constitution.
The Court held that a Texas statute criminalizing consensual, private sexual intercourse between persons of the same sex violated the Due Process Clause of the United States Constitution. The decision overruled Bowers v. Hardwick (1986), which had held the opposite.
1. What’s wrong with criminalizing behavior that a majority of the community finds immoral, offensive, or disgusting?
2. What sort of behavior may society legitimately punish? (Criminal Law must fall into one of these Categories). These are all public matters because they create some kind of harm to the public.
a. Behavior creating “harm”: Who decides what constitutes “harm”? Does it have to be harm to other people?
Prostitution. Societal harm because creates higher rates of STDS.
Polygamy is illegal in every state because of the harm to the children. But there are also Monogamous relationships that are harmful to children.
b. Behavior creating an unacceptable risk of harm: What sort of considerations go into deciding which risks are “unacceptable”?
c. Behavior preparatory to the creation of harm: How early may law enforcement step in?
3. The Bowers decision placed great importance on what it considered a long Anglo-American tradition of criminalizing sodomy. The Lawrence decision placed great importance on a decision by the European Court of Human Rights. Should either of these things be given weight in the decision to decriminalize conduct? Why or why not?
Lecture #2August 20, 2007
Reasons Why Acts are Punished? (People will legitimately agree to usually)
1. Doing Harm
A. Retribution-reason why most people believe doing harm is what merit’s the punishment.
2. Unacceptable Risk of Harm (I.e. DUI)
A. Deterrence-scare people out of risky behavior.
B. Incapacitation- incapacitate people from doing it In the future.
3. Preparatory to doing of Harm
GENERAL JUSTIFICATIONS OF PUNISHMENT
1. Why must punishment be justified? (Other Reasons) Section skipped in class.
a. Premise of liberal democracy: Every coercive governmental act must be supported by an articulable and rational justification or justifications
b. Punishment (execution, imprisonment, fines) are acts of governmental coercion
2. What types of justifications are sufficient?
a. Deontological reasons (Justice Requires it)
i. Retribution -idea that this punishment is the just deserves, according to actions.
ii. Denunciation/disavowal? (need to punish, to distance ourselves from that behavior to discourage in the future).
b. Consequentialist (utilitarian) reasons (Some Great Societal good will come from that punishment)
1.) Specific (to this defendant) – we are punishing A to scare A from doing this in the future.
2.) General Deterrence –need to punish to scare all people from engaging in this behavior.
ii. Incapacitation – incapacitate people from doing this bad behavior in the future. (kill murderers, etc…)
iii. Rehabilitation – Punish to rehabilitate them. This states, “I’m doing this for your own good”. controversial bc givers Individual autonomy, maternal characteristic, rehab programs in jail.
iv. Teaching norms to society-punish to make it clear that this behavior is not ok. I.e. Date Rape.
a. Retributive theory responds to two different questions
i. When (and to what degree) is punishment permissible?
(Asking: If we want to really punish this, can we punish this? Under what reasons? Answer: Only if person is guilty.)
Kant would say: Can only punish Guilty.
Utilitarian- If society going to benefit, then punish that person.
ii. When (and to what degree) is punishment required?
What if we don’t think its required? Do Prosecutors need to prosecute even if no good will come.
Kant: Yes need to punish all GUILTY because justice requires it. (In real terms, system wont bear it if we punished everyone that deserved it).
If don’t prosecute all guilty, how do you select that roughly 5% of guilty people?
b. When is punishment permissible?
i. Kant: We may punish only those who have committed crimes because no person may be used as a means to achieve a societal end
ii. Quinton: We can punish only those who have committed crimes because, logically speaking, it is impossible to “punish” an innocent person
iii. Pure utilitarianism: We may punish anytime it would create greater utility for the greater number of people, all things considered
c. When is punishment required?
i. Kant: Punishment is required whenever someone commits a crime, because to forego punishment would be to treat the wrongdoer as less than a human being, and because justice requires it
1) Example: Before leaving the island, the murderers must be executed (p. 112)
2) No one
B. Actus reus = taking and carrying away of personal property of another
c. Actus reus requires either a relevant voluntary act or omission to act where there is a legal duty to act. (generally you cannot punish anyone without these).
i. Criminal law does not punish for evil thoughts alone.
Why? Too scary of thought controlling. And how can you prove it without the action.
ii. Act must be voluntary because person not blameworthy if all relevant acts involuntary.
d. Definition of “voluntary” is controversial; much disagreement from jurisdiction to jurisdiction.
(Common law received into the Colonies from England. Model Penal Code-Comprehensive set of recommendations of the American Legal Institute on what they ought to look like. All state have adopted different parts of it. )
i. Oliver Wendell Holmes: voluntary act is a “willed muscle contraction”
ii. Model Penal Code: refuses to define voluntary; instead, lists acts that are NOT to be considered voluntary:
A. reflex or convulsion
B. movement during unconsciousness or sleep
C. conduct during hypnosis or post-hypnotic suggestion
D. residual clause (“conscious” or “habitual” acts ARE voluntary)
Discussion question: Was Decina (n.3, p. 156) blameworthy (attorney with epileptic seizure) ?
Voluntary act is his negligence in driving after constant seizures.
e. A person can be punished for a failure to act only if he or she had a legal duty to act
Omission is not a crime in itself. Its only when you fail to act according to a duty.
i. Duty to act can be established only by the following circumstances:
A. statute imposes duty
B. status relationship imposes duty
C. contract creates duty
D. duty was voluntarily assumed, then abandoned, thereby leaving victim in a worse position (person endangered by highway. You move them and they die of exposure).
E. status as landowner imposes duty
F. tort duty to control certain third persons (e.g., children, employees)
G. def created peril in first place. (Duty to rescue if you hit someone even if it initially was not yours).
ii. Example: Failure to file income tax return is criminal only if one has a statutory duty to file
iii. Jones v. U.S.: Conviction for involuntary manslaughter on omission theory must be reversed where jury was not instructed on necessity of finding legal duty to act