Criminal Law Outline

Criminal Law Outline

Professor Kamin, Spring 2015

v Punishment

o Why do we punish?

§ Retribution:

· Backward looking; looks at what the actor did

· The amount/degree of punishment = the amount/degree of harm caused à Kant’s desert island (if one person left on the desert island who committed murder, he deserves to die)

§ Utilitarian:

· Forward looking as a benefit for society

· Punishment as a deterrent to prevent people from doing crime of the sort done

§ Deterrence:

· Specific – deterring this person from committing crimes

· General – using this person as an example to deter others from committing crimes

· If there is a rule, widely disseminated with known consequences, deterrence is effective

· Ideally, the greater the consequences the greater the deterring effect

· Expected punishment = (likelihood of being caught)(severity of punishment)

· Gain from crime > expected punishment à the criminal will likely commit the crime (especially prevalent for white collar crime)

· We want the best prison to be worse than the worst ghetto

· Symbolism is important to victims – they want to feel satisfied in the sentencing

§ Rehabilitation:

· “Correctional Facilities” – something wrong with this person that needs to be fixed

· If we cannot rehabilitate to make the individual better, we can do it to make ourselves (society in general) better

· Anti-retributive because criminals are treated pretty well à they are off drugs, given an education, they learn a skill

§ Incapacitation:

· Crime goes down when these criminals are off the street

· Incapacitate the

o If we don’t know the sentence in advance there may be no deterring effect

§ Discretion – traditionally judges had wide discretion

· However, they are human subject to bias

§ Determinate (min and max sentencing) – gives us some discretion but some cases might fall outside what is permitted by statute

§ Parole Boards – seem mysterious because doesn’t provide a clear cut sentence working against predictability

o Model Penal Code: Utilitarian System seeking to:

o R. I. D. = Rehabilitate, Incapacitate, and Deter

o C. P. L. = Culpability (safeguard faultless conduct that is not criminal), Proportionality (differentiate levels of offenses), Legality (fair warning of declared criminal offenses)

o Madoff: Judge assigns Barry a max sentence of 150 years à aren’t imprisoning him to incapacitate because no one will trust him anyway; retributivist standpoint Madoff’s crimes are particularly evil (he’s done an inherently bad thing deserving of max punishment in itself); utilitarian deterrent standpoint Madoff deserves max sentence to send a strong message

o Jackson: bank robber robbed bank the night after being released from jail. Judge sentenced life pursuant to statute. Dissent points out that some murderers, rapists don’t get as severe a sentence and it’s not acting as a deterrence. It could incapacitate him but only to a point à 50 year old Jackson will probably get out the game. It’s a pure retributivist punishment – punishment with a lack of utilitarian reasoning

o Gementra: sentenced to 3 months prison and community service and wear a sign that says “I stole Mail.”

v Actus Reus – Acts v. Ommissions

o Actus Reus = requirement that one does a criminal physical volitional act

o Acts: must be a physical volitional act

§ Voluntary – conscious and deterrable – the product of the willed mind

· Habit, absent-mindedness, unintentional, impulsive, can’t remember are indefensible because they are conscious, deterrable act can be prosecuted.

· Martin v. State: a man appears drunk in a public place, but the cops are the ones who brought him there, so although being drunk was voluntary, being in a public place was not; not guilty. In the Common Law there must be an actus reus for each element of a crime.

§ Involuntary – Unconscious and undeterrable – not the product of the willed mind

· Sleepwalking, spasms, seizures (like epilepsy), sudden attacks are defensible because an unconscious act cannot be deterred or punished.

· People v. Newton: man shoots and kills police officer after being shot himself; doctor says he was unconscious at the time due to trauma, is believed, and is acquitted.

o Omissions: must be an omission + a duty to act (more than moral)

§ Cessation of action: the opposite of positive or affirmative action

· Withdrawal of further treatment, cessation of further action in a hopeless situation is not seen as an affirmative act and is therefore not punishable

· Barber v. Superior Court: doctors stop treatment at family’s request for a patient in a coma; not guilty of murder. Seen as act of omission; Dr. just refrained from further treatment à no positive action taken.

§ 2) Pre-Existing Legal Duty Standard: failure to act is punishable when:

· a) Statute requires you to (Good Samaritan Acts, etc.)

· b) Status/contractual relationship (family, subordinate, lifeguard)

® Pope v. State: woman found not guilty of failure to report a felony and child abuse when a child in her presence is abused to death; the mother was there so she did not have a legal supervisory duty to the child.

® Jones v. U.S.: failed to feed friend’s child but not guilty because not established as primary care giver.

· c) Where one has assumed a contractual duty to care for another

· d) Where one has voluntarily assumed the care of another and has secluded the helpless person preventing others from rendering aid

o Common Law: requires all elements of a crime to be voluntary acts

o MPC: only one element of a crime needs to be voluntary

v Mens Rea – culpable mental state

o Mens Rea (general sense) – an unwarrantable act without a vicious will is no crime at all

§ Mens rea is the vicious will à blameworthiness entailed in choosing to commit a criminal wrong

o Mens Rea (narrow sense) – refers only to the mental state required by the definition of the offense to accompany the act that produces or threatens the harm

§ Required for prosecution; an unwarrantable act without a vicious will is no crime at all; Common law crimes usually require some element of mens rea.

o 4 Levels of Culpability – Mens Rea Terms (according to the MPC):

§ MPC: 2.02(1) mens rea is required for every material element of an offense

· 2.02(3): where no mens rea is specified it must be proven that the ∆ acted at least recklessly

· 2.02(4): when mens rea is specified any greater mens rea will suffice

® Eg. knowledge is defined mens rea by statute à if purpose is proven it will suffice

§ Common Law: statute tells which mens rea applies to each element à if not it’s up for interpretation

§ 1) Purpose – done with a conscious object of creating a result

· Difference between Purpose and Knowledge is conscious object

· Conditional Intent: doesn’t negate harm caused; punishable

§ 2) Knowledge – practically certain that a specific harm will occur

· Difference between Knowledge and Recklessness is certainty

· Willful ignorance and positive knowledge are tantamount; punishable.

· U.S. v. Jewell: guy brings pot to U.S. from Mexico but says he made a point to not know what was in the car so can’t be held liable. No good. He is guilty of affirmatively acting to avoid knowledge.

§ 3) Recklessness – aware of risk, but do it anyway; consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. (substantial – subjective; unjustifiable – objective); Minimum that must be proved in most jurisdictions

· Difference between Recklessness and Negligence is awareness of risk

· Recklessness can be elevated to extreme recklessness when we look at obviousness of risk and the seriousness of the harm associated with that risk

§ 4) Negligence – should be, but are not aware, of a substantial and unjustifiable risk (bomb will kill kids playing in schoolyard)

· Regina v. Cunningham: Dumbass dude almost kills mother in law by removing gas pipe to get money. Jury given erroneous instructions so he is not guilty, but even so, he should’ve but didn’t know that what he was doing was harmful à at least negligence.

· Regina v. Faulkner: sailor steals rum on ship and starts fire when match he uses to light the dark room ignites. Should’ve but didn’t know he was creating such harm. Erroneous instructions of “malice and intent” get him off; Faulkner did not have the mens rea of the crime

o Material Elements – every element of a crime falls into one of these categories:

§ Conduct: acts and behavior one is prohibited from doing

§ Circumstances: Conduct applied in certain other circumstances (eg. rape = sexual intercourse + non-consensual)

§ Result: must be a result called for by the statute (eg. homicide = victim must be killed)

o Strict Liability: liability in the absence of culpable mental state: mens rea is irrelevant.

§ (1) Often implemented on issues to protect general public and promote greater good, or protect a particularly vulnerable group; punishment for crimes the court believes are never permissible for a deterrent affect; where the punishment is light

· U.S. v. Dotterweich: improper FDA labeling and shipping…very dangerous, must protect greater good, his sentence was lenient;

· Morisette v. U.S.: took shell casings from Air Force base…said he didn’t know it was illegal. The Supremes say guilty so they can ease a prosecutor’s case against theft and send a general message. His sentence was lenient.

· Staples v. U.S.: didn’t know his gun was an automatic that he had to ha