Gustafson Criminal Law UConn Law Fall 2011
Theories of Punishment (Why Do We Punish?)
We punish to maintain the social order
1. Retributive—lex talionis, “law of retaliation”. The offender deserves punishment, possibly for their own good, society has natural responsibility to punish.
a. Positive Retribution— Guilt is both necessary and sufficient to punish someone. Therefore, even if punishment does not deter crime or fulfill any other purpose, society has an obligation to punish the wrongdoer.
b. Negative Retribution—Guilt is both necessary, but not necessarily sufficient.
2. Utilitarian—We punish for the benefit of society, as a general deterrence.
a. General Deterrence—Directed at society and anyone conceiving breaking the law.
b. Incapacitation
c. Reform
d. Individual deterrence—Directed at the individual being punished, thought to “teach them a lesson,” so they will make the conscious decision to refrain from repeating the law or laws.
e. Rehabilitation
3. Sentencing
a. Humiliation—Courts are split, those courts that utilize it say it can deter, protect public, and rehabilitate but opponents say otherwise. It has been upheld under Sentencing Reform Act.
b. 8th Amendment
i. Excessive Bail
ii. Cruel and Unusual Punishment
1. Barbaric?
2. Excessive – Punishment is excessive if it:
a. Makes no measurable contribution to goals of punishment (aka needless pain and suffering), OR
b. Disproportionate to severity of crime. “Proportionality” Justice White looked at Public Sentiment, noting what is cruel and unusual can change with time.
iii. Examples: Death for rape was found to be disproportional. Reasoning: won’t make victim whole, won’t deter, and gives reason to murder the rape victim.
c. THOUGHT—There is justice beyond punishment. I can oppose Death Penalty but find that society is better off if rapist gets hit by a bus. The reasoning is that government/courts not always best position to enforce what is best for society without allowing prejudices and doing so in fair manner. Retributive sentencing is a responsibility we irrational, inconsistent mortals are best not handling.
4. What do we punish
a. Result Crime—criminal act because of the result of act
b. Conduct Crime—criminal act because of the possible result of act, ie drunk driving. There is no injury to anyone.
Basics of Criminal Law
1. Crime—an action in which a legislature affixes a “criminal” penalty.
a. Criminal Law—Series of directions (mostly) on what is not allowed, Binding on all people, Subject to disobedience, with a punishment connected to society’s disapproval of the act.
b. To be effective:
i. Defendant must know of law and understand it
ii. Know when it applies
iii. Be able to comply
iv. Willing to comply
2. Presumption of Innocence
a. Due Process
i. Notice is required—Law must be known.
ii. Vagueness or overbroad (lenity, see below)
iii. Chicago v. Morales: Statute that made it a crime to be somewhere if 1) police reasonably believed persons were gang member, 2) were loitering, 3) police could order to leave, and 4) person disobeys.
1. SCOTUS said the statute was TOO vague because ordinary citizens would know what it means.
2. Most people would violate the law because of the vagueness.
iv. Muscarello v. US—“uses or carries a firearm” during a “drug trafficking crime”.
1. Majority went with glove box. Dissent said law was clear and carry a firearm means to have it on your body, plus Dissent advocates “Rule of Lenity”.
3. Reasonable Doubt Standard
4. Principle of Legality—No crime w/o law, no punishment w/o law
a. Statutes should be understandable and reasonable to the people
b. Criminal statutes should not delegate basic policy matters to police, jurors, or judges
c. Law of Lenity—If the criminal statute is not clear, the court will find in favor of the defendant.
5. Laws v. Facts
6. Flow of Case—Negotiations to plea down begin with pleading, and 90% of cases plea out.
a. Investigation by police. Determination of probable cause.
b. Information, filing of criminal charges brought before judge. Judge can accept or deny.
c. Pleading, innocent or guilty (1st step with right to lawyer)
d. Pretrial motions, dismissal of evidence
e. Trial, jury selection, etc.
f. Indictment is read to jury, opening statement
g. Evidence, Motions of Acquittal, Rebuttals, Closings
h. Jury Instructions, deliberations
i. Determination of “Legal Guilt” (chance of nullification)
j. Sentencing Report and sentencing
k. Appeals
7. Statute Interpretation
a. Plain Language
i. Definitions in Law
ii. Dictionary
b. Legislative History/Intent
c. Precedent (binding and persuasive authority)
d. If need be…public policy
Actus reus & Mens Rea
1. Criminal liability = Actus reus + mens rea + causation
2. Actus Reas, the guilty act-The actor took action (or omitted in some cases).
a. Omission is general not a crime. But:
i. Statutory Duty, ie Police must act
ii. Statutes v Relationship, ie a partner or parent may have obligation to act
iii. Contractual duty of care, ie nurse has duty to care
1. BUT, a doctor who pulls the plug on life support is permitted to do so because it is an allowable omission of life support. It is not an affirmative action.
iv. Created Risk, ie in a hit and run there is a duty to stop and assist.
3. Mens Rea—guilty mind, the state of mind of the defendant.
a. Willfulness— “voluntary intentional violation of a known legal duty” Meets “knowingly,” and if D id not act out of free will, he is has not met the elements of the crime.
i. State v. Utter—Drunk man stabbed son in the chest after blacking out, he thought he was in ‘Nam and naturally reacted. The exception is states of unconsciousness induced by the defendant…getting drunk.
b. General Intent vs. Specific Intent
i. General intent—intent to perform the act but with no desire of the consequences that result. Could mean statute does not include a mens rea. Problem would arise if “receipt of public benefit to which D is not entitled” was a serious crime and recipients had no way of knowing they were not entitled to benefits. General intent associated with strict liability. Common law used general intent for rape, murder.
1. Example: Battery defined, as “intentional application of force upon another” would be general intent.
ii. Specific intent—The intent to accomplish the precise criminal act that one is later charged with. It has the assesnc that the actor had an intention. A mistake (mens rea) can be used as a defense to specific intent crimes. Old common law with specific intent was alluding to culpability.
1. Example: “Selling of porn to someone known to be under 18” The word known makes it a specific intent crime.
2. “Punching guy in face” = general intent
3. “Punching guy in face with intent to break his nose” = specific intent
of defense, OR
b. Law provides the state of mind established by such ignorance or mistake constitutes a defense.
2. Notice because MPC doesn’t have general intent crimes it doesn’t have split issue like common law.
c. Mistake of Law (Common law)—General RULE: Ignorance is not excuse to mistake of law, and very difficult for defense counsel to make any argument with the exceptions.
i. Exceptions to the general rule.
1. Entrapment by estoppel—relying on government entity authorized to inform you of the law, quite limited.
2. Where knowledge that conduct is prohibited is an element of crime
3. Lack of notice—unpublished law
ii. LI: Whether D’s good faith effort to understand the law acts as an excuse in prohibitive conduct crime? The answer is NO —People v. Marrero (NY)—Police officer carried gun into club after trying to understand the law (assured in class he could carry gun as an officer).
iii. REASONING—allowing D to claim “mistake of law excuse” would flood the courts w/ erroneous defenses. Dissent argues in Marreo that there was no mens rea, which is legit, but how would Dissent stop abusing the loopholes in statutes if people are allowed to draw “mistake of law excuses”.
1. Compare with MPC 2.04 (3)(b)—which allows mistake of law excuse under very limited circumstances:
a. The statute is not known (unpublished or reasonably made available), OR
b. Actor reasonably relies on official statement of the law, afterword determined to be invalid (statute, legal decision, etc.)
iv. Legal Wrong Doctrine—A person’s thought can hold them liable for greater offense if person thought they were committing a great harm
1. Example: Bill gives child porn to 17 year old whom Bill reasonably believes is 18. This is a felony, and giving child porn to 18 year old is misdemeanor. Bill would be prosecuted as felony case under legal wrong doctrine.
2. MPC 2.04 would only asses the misdemeanor (no legal wrong doctrine in MPC)
d. Cheek v. US (Scotus)—looked at jerk face claiming Const. prohibited federal government from collecting income tax. The court held, a “good-faith” misunderstanding of the law is a defense in a specific intent offense, thus allowing mens rea. Saying “willful” requires the “voluntary intentional violation of a known legal duty” and that jury will determine what is done in “good faith”. Here too, like common law mistake of fact, it doesn’t matter how unreasonable (or reasonable) the person was.
Culpability
1. Purposefully
2. Knowingly
3. Recklessly
4. Negligently
5. If no culpability is listed, then D is guilty of crime if committed purposefully, knowingly, or recklessly.
6. Any higher form of culpability is sufficient to meet the culpability of a lesser level.
The Jury
1. Jury Selection
a. Venire persons—people in the jury pool
b. Voir dire—examination process of venire persons.
c. Peremptory Challenge—not based on cause, it eliminates a vireperson from pool. Juror can also have been eliminated in voir dire for “cause”. 14th Amendment bars peremptory challenge on gender or race.
