Criminal Law Outline – Jacobs 2015
Theories of Punishment
A. Utilitarian
B. Retributive
A. Utilitarianism
– Actions are morally right, if and only if, they result in desirable consequences (consequentialist)
– Forward looking; net benefit for society as a whole; mainly concerned with keeping crime from happening in the future
– “Aim to achieve the greatest happiness and the least pain for the greatest number” – Bentham
Þ Bentham also said you cannot punish children or idiots because they lack the required mental capacity to learn from their mistakes
– All criminals are thinking rationally before committing a crime
– Criminal will avoid crime if perceived potential pain (punishment) outweighs expected potential pleasure (criminal rewards)
– Ignorance to Law: still punishable because they can be deterred, overall still benefits society
Punishments under Utilitarianism:
1. Deterrence
2. Rehabilitation
3. Incapacitation
1. Deterrence
– General Deterrence: punishment to deter others from committing the same or similar offenses
– Specific Deterrence: punishment to deter the individual D from committing the same crime in the future
– Four Rules of Deterrence:
1. The evil of the punishment must be made to exceed the advantage of the offense, to exceed the desire to commit it
2. The more deficient in certainty a punishment is, the more sever it should be; punishment needs to be certain: those first prosecuted under a new law get it the worst
3. With 2 offenses in conjunction, the greater offense will have the more severe punishment in hopes the criminal stops at the lesser offense
4. The greater the crime, the greater the punishment (in order to prevent)
– Criticisms:
Þ Uses a person as a means to an end (better society)
Þ Justifies by saying criminal benefits from own punishment
Þ Justifies punishment of a persons known to be innocent
o Example: arresting an innocent black person to placate an angry mob looking for a black rapist – Utilitarian’s respond that this would never occur in the real world because people would find out an innocent person was in jail, which would cause them to lose respect from the criminal justice system, which would cause more harm
Þ Deterrence presumes a D is a rational person weighing the costs and benefits of committing a crime, whereas many crimes are committed spontaneously or are driven by emotion
2. Rehabilitation
– Reforming the D through vocational training, counseling, drug rehab, etc.
– Use the correctional system to reform a wrongdoer, so that upon release they will conform to societal norms
– Sentencing:
1. Determinate: sentence is an exact amount of time
2. Indeterminate: not concrete (8-10 yrs)
– Two Models:
1. Pennsylvania System: isolated for the entire period of confinement
2. Auburn System: slept alone, labored together
– Criticisms:
Þ Removes justice and punishment deserved
Þ Justifies cures that violate offenders personhood; demeans
Þ Indeterminate sentencing
Þ Wrongly allocates precious societal resources to those who least deserve them
o Advocates believe in the long run the costs upfront will result in cost savings in the future
3. Incapacitation
– Incapacitation to keep the D away from other members of society
– Can be incarceration, house arrest, chemical castration, death penalty, etc.
o JACOBS: do not say incarceration and incapacitation are the same
– Upon release, there is intimidation; D’s punishment reminds him that if he returns to old ways there will be more pain
– *Note: if people think a punishment is too excessive, they will not respect the law, which leads to jury nullification
– Criticisms:
Þ Repeat Offenders
Þ Offenders get out of jail eventually
Þ Prisons are like a school for crime
Þ Substitute Crimes: crimes where people are easily replaced; prostitution, organized crime, etc.
B. Retributive
– Purpose of criminal law is to punish the morally culpable
– Backward looking; punishment should be proportional to the amount of harm caused
– Punishment should be propor
ity
2b. Mistake and Ignorance
1. Mistakes of Fact – MoF
2. Mistakes of Law – MoL
3. Causation
1. But-For Cause
2. Proximate Cause
4. Concurrence
1. Temporal Concurrence
2. Motivational Concurrence
1. Actus Reus
– A voluntary act (or omission to act when there is a legal duty to act) that results in some kind of social harm
Actus Reus Analysis
1. Voluntary Act
2. Omission
3. Possession
1. Voluntary Act
Common Law:
– Willed movement of the body of one’s own volition; ACT MUST BE VOLUNTARY
o Automation: if D is acting as an automaton (mind not engaged at the time of the act) then there is no valid actus reus
o Movement by Another: if D is physically moved by another, there is no actus reus
o Rationale for Voluntariness: punishment for an involuntary act does not satisfy deterrence or retribution because a person who was unaware that she is acting cannot be deterred; and retributive theory is based on an assumption that the D freely chose to commit a crime
o Habit: actions done by habit are still considered voluntary acts
o Extending the Period of Actus Reus: by extending the period of actus reus, an act that might otherwise be viewed as involuntary may be deemed voluntary
Þ Normally, reflex or seizure actions do not constitute a voluntary act. However, if D is aware that she is susceptible to such problems, the court may stretch the period of the actus reus to include the time when the D knowingly took the risk of an attack, making it voluntary
o Involuntary Acts: spasms, epileptic seizures, reflexive actions, movement while unconscious or asleep, NOT habitual acts
