I. GENERAL PRINCIPLES
A. Introduction
1. Anatomy of a Crime
a. Act à Actus Reus
b. Mental Element à Mens Rea
c. Concurrence à The guilty act is a result of a guilty mind and not an impulse
d. Causation à The concurrence of act and mind caused the harm
e. AR + MR + Causation = Crime
2. Classifications of Crimes
a. Malum in se à Wrong in itself
b. Malum prohibitum à Regulations for convenience
3. Crimes vs. Torts
a. Similarities
– Both work to protect the public from harm
– Names and elements of many torts and crimes are the same
b. Differences
– Crime is an offense against the state
– Imprisonment, not restitution
– Focus on intent, not the result
– V can’t consent or forgive
– Great moral sanction for a crime – conviction is worse than being sued
– BRD v. Preponderance (51%)
4. Pragmatic Defn of Crime à Power Control and Conduct Control (All laws have both)
a. Conduct Control
– Commands within the law directed at individual
– Tells individuals he can and can’t do “don’t spit”
– Directed at individual’s committing the primary crime
– Stops infringement of other’s rights by an individual
b. Power Control
– Commands within the law directed at state and its agents
– Gives authority to intrude on liberties of society
– Also tells govt limits of its power
– Keeps police from arresting us for other things
c. Every crime has two messages
– Ex. “Don’t spit on the sidewalk”
– Implicit on population – Don’t spit on sidewalk, or arrested for 1 day
– Explicit to state – limiting when can apply punishment – police can’t arrest unless you spit (power control)
d. Trade off
– The more conduct control on individuals, the less power control on the state
– The more power control on the state, less conduct control (lot of things people can do)
5. Realistic Defn à A Crime is What You Want it to Be (outside factors influence decisions)
a. Definition of Crime Is:
1. Politically Contingent
– Law is not fixed – it varies from place to place
– What actions are considered criminal depends on who has the power to make 2. Indeterminate
– The law is “fuzzy” and open to interpretation
– Attorney’s job is to argue what the law is
3. Discretionary
– Law is subject to discretionary enforcement
– Police, prosecutorial, judicial discretion
B. Why Punish?
1. Theories
A. Retributivism à Punished b/c they committed the crime, Crime created duty to punish.
– No exterior motive such as deterring others from crime or protecting society
C. Mixed Theory à What we use
– Punishment justified if it achieves a social net gain and is given to offenders who deserve it
– Retributivist – For when to punish
– Society punishes bc it’s deserved
– Utilitarianism – For how much punishment
– Utilitarian values to temper/quantify punishment:
– Deterrence
– Rehabilitation
– Incapacitation
D. What to Punish?
1. Problems with the Enforcement of Morals
– May give one cultural group an advantage
– May diminish respect for law (when not enforced)
– Discriminatory enforcement
– Difficulties in obtaining evidence
– Criminal genesis – Can create more crime by enforcing morals
– As soon as make something criminal it creates a business enterprise – Ex. Drugs – costs increase when lawful act criminal
– Diversion of resources
– Decrease in power control (increase in conduct control)
– Reduce power of community to control conduct through non-govt means
