CRIMINAL LAW LAKIER WINTER 2016
PUNISHMENT
General
Principles of Criminal Law
The State steps in to punish anti-social actions that harm society as a whole
However, the Government must have a strong justification when it deliberately seeks to inflict physical or emotional pain on an individual
Approaches to Criminal Law (“moral relativism v. social welfare”)
Retributivism (“punishment is justified because people deserve it”)
Backward looking
Moore: Society has a duty to punish the blameworthy (moral culpability)
Kant: (1) Punishment only when individual committed a crime, (2) punishment proportionate to crime (proportionality principle)
Offender should be punished in proportion to their blameworthiness
Sentencing factors: (1) moral culpability, (2) proportionality principle
Pushback: May ignore situation context; may not enhance social welfare
Ex: California Penal Code
Utilitarianism (“punishment is justified because of its useful purpose”)
Forward looking
Cost-Benefit Analysis of Pain-Pleasure
Bentham: Objective goal of law is increase total happiness; punishment is mischief, only permit it when it excludes a greater evil.
Punishing: (1) the minimum amount to create net social welfare gains; (2) based on consequences behavior is expected to produce in future
Certainty is a better deterrent than severity against crime
Sentencing factors: (1) specific deterrence, (2) general deterrence, (3) rehabilitation, (4) incapacitation
Pushback: May go against moral intuitions, can undermine legitimacy
Ex: MPC, NY Penal Law
Sentencing
Sentencing Commission (1980) created mandatory guidelines. In 2005 those became discretionary (judges must explain if they deviate, however). Still mandatory minimums. Consequence: Transfers power to prosecutor, who can set a range of sentencing.
Shaming Sanctions
For: Cost-Effective; faith in system lower as it normatively stands
Against: Potential for psychological harm / ostracizing
Regina v. Dudley and Stephens (England, 1884) – Coleridge
Facts: ∆’s were cast away at sea. After 18 days they without food and water, with no rescue in sight, they decided to kill their young cabin boy (Parker) and eat him. ∆’s argued necessity.
Holding: Killing of Parker was murder. Self-defense is cause to murder, but necessity is not. Necessity of hunger does not justify larceny, let alone murder. The legal system does not exist to keep someone from dying – sometimes there is duty of sacrifice. Unfortunate circumstances do not lend leniency to the legal definition of murder.
Key Ideas: No common law defense of necessity for murder. Hints at separation of powers, as the Court implies that the Sovereign should step in if the decision runs counter to social norms.
U.S. v. Bernard L. Madoff (S.D.N.Y. 2009) – Chin
Facts: Madoff ran massive Ponzi scheme which cost his clients $65B. Facing 11 charges.
Holding: Sentenced to full term of 150 years. Judge stacked charges – took maximum sentence and ordered them to run consecutively
Import: Retributivism / General Deterrence. Deviates from default rule (sentences run concurrently). Judge punishing: the unprecedented level of fraud, breach of trust / capital against clients, for symbolism.
U.S. v Jackson (7th Cir. 1987) – Easterbrook
Facts: ∆ convicted of bank robbery thirty minutes after being release from conviction of two prior bank robberies. Maximum sentence life in prison without possibility of parole.
Holding: Affirmed ruling imposing life in prison because ∆ was a career criminal, specific deterrence failed, π continued to possess weapons to commit crimes
Concurrence (Posner): Sentence too harsh: ∆ never injured anyone during bank robberies, negligible net deterrence between min. (20 years) & max sentencing.
United States v. Gementera (9th Cir. 2004) – O’Scannlain
Facts: ∆ pled guilty to mail theft, conviction that represented one in a series of escalating criminal history. Trial Judge imposed a sentence, which required π to stand outside a S.F. postal facility wearing a sandwich board sign stating “I stole mail; this is my punishment”
Holding: Judge has statutory authority to impose the sentence, because it was reasonably related to the statutory objective of rehabilitation.
ELEMENTS
General
Elements of Criminal Liability
(1) Legality
(2) Actus Reas
Acts
Omissions
(3) Mens Rea
Strict Liability
Mistake of Fact
Mistake of Law
(4) Causation and/or Results (usually paired together)
(5) Attendant Circumstances
Involuntariness Defense
Actus Reas: Proof that the person never intended to do the act (ex: sleepwalking)
Mens Rea: Proof that the person intended to do the act, but had a good excuse
Legality
Principles of Legality (nulla poena sine lege – no punishment without law)
Separation of Powers (legislative gap filling v.
Fair warning
Prevents arbitrary / discretionary enforcement of laws (police, prosecution, juries)
Bars retroactivity and vagueness
Vagueness may invalidate criminal law because it (1) fails to provide notice so ordinary people know; (2) authorizes or encourages arbitrary / discriminatory enforcement
Constitutional challenges
Facial: ∆ alleges legislation is always unconstitutional, should be void
As-applied: particular application of statute is unconstitutional
Commonwealth v. Mochan (Pa. Super. 1955) – Hirt
Facts: ∆ series of obscene calls to π suggesting she commit adultery and sodomy. Despite having no statute in Penal Code to do so, Penn. filed charges against ∆ under common law of outraging decency and injuring public morals.
Holding: Common law crimes are still punishable under Penn. Penal Code
Dissent (Woodside): Worried about notice / separation of powers. Court overstepping power by wading into legislative branch.
Import: Whatever openly outrages decency / injurious to public morals is a misdemeanor at CL; conduct not outlawed by statute can be punished as such.
City of Chicago v. Morales (U.S. 1999) – Stevens
Facts: Chicago enacts ordinance to prohibit gang members from congregating / loitering with one another or other person’s n any public places. Any person loitering can be punished, given a reasonable belief that at least one person in a good is a ga
no duty for (1) parents <-> adult children, (2) sibling <-> sibling
Miranda (boyfriend/father adjacent NL for failing to save child he considered himself stepfather of; worried liability (1) chills unconventional relationships, (2) gives State to much plea power)
Beardsley (NL for man who fails to call doctor for overdosing woman he was having affair with)
Carroll (Stepmother had duty of care as a “functional equivalent” of parent in household setting)
Contract (where one has assumed a contractual duty to care for another)
Voluntary assumption of care (Jones)
“Where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid”
Failure to aid = criminal liability
Omission has to happen early enough that aiding victim would have helped them/saved them (Williams)
MPC §2.01(3): Liability for the commission of an offense may not be based on an omission unaccompanied by an action, unless
(a) the omission is expressly made sufficient by the law definite the offense; or
(b) a duty to perform the omitted act is otherwise imposed by law
Jones v. U.S. (D.C. Cir. 1962) – Wright
Facts: ∆’s friend placed 10-month-old illegitimate child with her. ∆ failed to provide for the child, which resulted in child’s death. Conflicting evidence re: time ∆ had the child, whether she was paid to take care of the child. ∆ convicted with involuntary manslaughter; at trial, court failed to charge the jury it must find beyond a reasonable doubt ∆ was under legal duty to provide for the child.
Holding: Reversed and remanded ∆’s conviction. Omission of an act is only punishment where the duty neglected is a legal duty and not merely a moral obligation.
Import: Legal duty imposed by: (1) statute, (2) special relationships, (3) contract, (4) where one has volunteered to care for another and in doing so secluded the person in manner that prevents other from rendering aid
Mens Rea
General
The act is not culpable unless the mind is guilty (actus reas non facit reum nisi mens sit rea)
To be criminally liable under due process, there must be both actus reas (“guilty act”) and mens rea (“guilty mind”)
Each element of a crime requires a mens rea (unless strict liability or public welfare offense)
Federal criminal law does not follow the MPC, but the MR component of the MPC is the most influential portion of the document
Subjective v. Objective View
Subjective = What the individual was thinking
Objective = How a reasonable person would view the situation
