Criminal Law Outline
Fall 2011
Prof. Seigel
Justification of Punishment
A. Introduction to Criminal law
a. What is the law?
i. The law is all of the rules of conduct established and enforced by a group
ii. The Black-letter law is the rules and the exceptions
iii. Actus Reas: the act
iv. Mens Rea: criminal mindset
b. Model Penal Code
i. No one criminal law in the U.S
ii. American Law Institute came up with the “perfect” criminal law-known as the MPC
B. Blame and Punishment
a. Regina v. Dudley and Stephens 73
i. Two sailors in dire straits kill and eat a sick kid at sea
ii. Jury submitted a special verdict to the court—to find out what the law is in a situation like this
iii. Lord Coleridge uses two different authorities to illustrate his point
1. Lord Hale “great authority”
a. Man “out rather to die himself than to kill an innocent”ßdeontological argument (argument from first principles, morality, natural law, fundamental rights)
b. Uses lord hale as an appeal to authority
2. Lord Bacon
a. Necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a stranger
b. Attacks this argument through ad hominem—attacks the person making it not the argument
iv. Claims a slippery slope, if these men are acquitted then this kind of behavior will continue down a slippery slope
v. Analogy—if you can’t steal when you’re hungry you can’t kill either. No proof the sacrifice of that man’s life would have saved their life
vi. Law must be in accordance with morality
C. Punishment—why punish? Starts at pg 70
a. Retribution
i. A retributive rationales are essentially backward looking, as they seek to justify punishment on the basis of the offender’s behavior in the past
ii. Retributive punishment is deontolgocially based
iii. Fundamental purpose of punishment in the U.S
iv. MPC 1.02 states “the general purposes of the provisions governing the definition of offenses are: (a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests; (b) to subject to public control persons whose conduct indicates that they are disposed to commit crimes….
v. Morally wrong not to punish
1. Bentham- says no punishment for punishment’s sake
vi. Durkheim pg 90. Other theories through 95
vii. Pro and Con
1. Pro
a. Utilitarian defense to retribution
b. We all agree to abide by the law, when someone upsets the balance must be punished
c. It’s just to punish because we all enjoy the benefits of the system and assume the burden of self restraint except those who commit crime who get unjust benefits over law abiding citizens
d. Provides satisfaction for society-Utilitarian
2. Con
a. People in jail are not paying back society
viii. Variation on retribution
1. Vengeance is the nature of punishment
2. Mixed theory
a. Retribution necessary but not sufficient
b. Must receive something from punishment
c. Something in human character requires retribution
b. Deterrence
i. Two kinds of deterrence
1. Specific- Tailored towards a particular person
2. General – tailored towards society as a whole
ii. Bentham classic advocate of deterrence
iii. rational actor model- rational man will calculate benefits v. costs and act accordingly
iv. Problems
1. Assumes everyone knows punishment and can weigh good v. bad
2. Rational people may commit crime after calculating
v. Good—punishment does deter some people, i.e white collar criminals
c. Rehabilitation
i. Fix to cure
ii. Expensive and usually doesn’t work
iii. Scarce resources are spent on criminals
iv. Used in the 50s through the 70s
d. Incapacitation
i. Comment says that “people whose involuntary movements threaten harm to others may present a public health or safety problem calling for therapy or even for custodial commitment; they do not present a problem of correction
ii. Exclusions from voluntary acts
1. Reflex/convulsion
2. Act while unconscious or sleeping
3. Hypnotized
4. Other acts not by effort of actor – ex: pushed
e. People v. Newton p 184
i. Defendant shot and killed a police officer after being shot in the abdomen during a traffic stop
ii. Expert testimony said that his testimony of being “unconscious” during the shooting was compatible with the gunshot wound he received
iii. Court held that when “evidence of involuntary unconsciousness has been produced in a homicide prosecution, the refusal of a requested instruction on the subject, and its effect as a complete defense if found to have existed is prejudicial error”
f. Irresistible impulse isn’t a defense, habit is not involuntary, unconsciousness, reflex, and convulsions are considered involuntary
B. Omissions
a. Jones v. U.S 192
i. Defendant was a family friend of the mother of the decased child. Child was place in his care and had ample means to provide food and medical care
ii. Found guilty of involuntary manslaughter. Argued that trial judge should have instructed jury that he was under a legal duty to supply food and necessities to Anthony lee
iii. Court agreed—no criminal liability for NOT acting
iv. No criminal liability not to act EXCEPT when:
1. Statute imposes duty
2. Status relationship (parent-child)
3. Contractual duty
4. “boxed” – took voluntary responsibility and secluded from other assistance
5. When you put that person in peril
