Criminal Law Outline
Professor Johnston, Fall 2017
WHY PUNISH?
See chart: Justifications for Punishment
*Punishment should be reserved for conduct that is blameworthy – punishment must be proportionate to the crime.
Retributive Justifications for Punishment:
1) Retribution:
“Punishment is justified by the moral culpability of those who receive it. A retributivist punishes because, and only because, the offender deserves it.”
Backward looking – looks back on what was done.
Key components of retribution:
Defendant must be guilty.
Proportionality: severity of punishment should be proportional to blameworthiness and wickedness of offense & seriousness of wrong.
D must have voluntarily committed the crime on his own free will.
“Moral culpability [is] both a sufficient as well as a necessary condition of liability to punitive sanctions.”
Sufficient: society has a duty to punish culpable offenders
Necessary: no punishment is just unless D is guilty
Deontological argument = retribution. Argument from morality.
Critiques:
Do 2 wrongs make a right?
No equal benefits to begin with! Not all criminals start on an even playing field, so they can’t be seen as benefitting from their crimes more than the rest of society when they started much worse off than the rest of society.
Not to be confused with Vengeance. Vengeance (often confused with retribution; not really valid justification):
Expression of hatred
Predicates of vengeance:
Injury. Victim needs to have been injured, where in retribution the D could have just committed a moral wrong.
Resentment & outrage generated by the crime
Some ways retribution may be different from vengeance:
Less emotional (retribution = devoid of emotion)
Retribution = has limit on severity of punishment/penalty by using proportionality of crime vs. blameworthiness
With vengeance, punishment imposed may be unduly severe and doesn’t have this blameworthiness limit
Retribution: predicate = moral wrong (not injury to victim)
Focus is on blameworthiness and injury to society
Utilitarian Justifications for Punishment:
“Utilitarian”: punishment is useful for the greater good. Punishment is evil, but it excludes the greater evil of crime.
Utilitarian is teleological: ultimately concerned about the consequences of one’s decision.
Where retributivism looks backwards on what was done, Utilitarianism is forward-looking in orientation to produce the greatest good for the greatest amount of people (maximizing future welfare vs. retribution, which is backward-looking)
3 utilitarian justifications:
Deterrence
Rehabilitation
Incapacitation
Deterrence
Prevention of future crime through fear of punishment
Based upon the idea that all potential criminals are rational actors and can weigh the costs and benefits of the crime.
Two types:
Specific: deter the individual from committing crimes in the future.
General: make an example out of the individual so that others won’t commit crimes in the future.
How is crime deterred?
Economic theory of crime.
In essence, individuals perform this calculation: (benefits of crime) – (severity of punishment) x (likelihood of getting caught) = likelihood of committing the crime
Critiques: criminals don’t calculate! Don’t know the law, don’t make rational self-interest choices
Rehabilitation
Justification: to reform criminals, allow them to flourish, and to make society safer
Conceptualizes crime as disease with the justice system in place to help “fix their problem” and make them law abiding again
Society’s duty to diagnose the cause of the disease & treat it.
Critiques:
Diverts scarce resources to undeserving
Penalty not proportionate to offense. Minor crimes had big sentences to try to “cure” the person of their issues.
Unpredictable – may result in wildly different punishments for similarly situated offenders
Tremendous inconsistency of “cures”
Punishment may not reform! Evidence is mixed.
Incapacitation
Incapacitation involves simple restraint and is the justification for criminal punishment that drives the contemporary criminal justice system
Restrain criminals from committing crimes: “a thug in prison can’t shoot your sister”
Assumption: incarcerated criminals are likely to commit lots of crimes in the future
Critique: claims rest on greatly exaggerated estimates of the number of crimes that can be averted by incarcerating offenders for longer terms
The Elements of Punishment
ACTUS REUS
Voluntary Acts
Actus Reus denotes culpable conduct or the commission of some voluntary act that is prohibited by law.
Can be established by an affirmative act or an omission
To have committed a crime, a D needs to voluntarily have done something wrong (either an act or omission that constitutes a failure to satisfy a legal duty)
NOTE voluntary does not necessarily mean BLAMEWORTHY
BUT involuntary acts are never blameworthy
Involuntary acts can happen from overwhelming outside force (Martin) or by internal actions that may be less obvious and harder to refute (Newton)
An act that is the product of insanity is voluntary but not necessarily blameworthy
But an act is still voluntary if someone holds a gun to your head and forces you to commit a crime
You cannot be held liable for sudden unexpected events unless the event is foreseeable. (Decina: epileptic driving a car)
Decina: Had a seizure that led to a lethal encounter – Court said it was voluntary because he got into the car, knowing he experienced seizures, voluntarily.
If D knew he had a certain condition (epilepsy), carrying a certain risk but then chose to engage in an activity he knew carried possible result – if that bad result happened – even if at the moment it occurred his conduct was involuntary – AR will be satisfied.
Unconscious acts are NOT voluntary acts unless it is self-induced (e.g. where not self-induced, as by voluntary intoxication or the equivalent, unconsciousness is a complete defense to a criminal charge).
Can’t be held liable for sleepwalking (Cogden) – mom murders kid while sleepwalking but is acquitted because the act of killing was not, in law, regarded as her act at all
The CL & MPC voluntariness requirement is a quite narrow one.
It is satisfied if any one of the proscribed acts in a statute is committed voluntarily.
Both CL and MPC position is that when there are multiple conduct elements in a statute, at least one of them must be voluntary.
See MPC 2.01(1)
Martin can be cited for the proposition that criminal liability always requires the commission of some voluntary act prohibited by law.
Guy taken by police to public place involuntarily. While the statute did not expressly state that the conduct had to be voluntary, the court said it was presupposed by common sense. While all of the elements of the statute were met by D, they were not met voluntarily since police dragged him there from his home.
To the extent CL law (Martin) requires that all conduct elements be committed voluntarily, it is an irregularity.
Majority CL and MPC require any, but at least one, of the conduct elements be committed voluntarily.
In Martin there was 2 elements, and the court decided that all conduct elements must be committed voluntarily. This is inconsistent with the majority of CL, which says that ONLY ONE actus reus/ forbidden conduct element must be completed voluntarily.
Newton – D was shot in the gut, then shot police. Dr. testified it was normal to lose consciousness & go into reflex shock.
Holding: “Where 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…”
Newton’s actions were a reflex; therefore they were involuntary both under CL and MPC.
Unconsciousness is a com
se-by-case basis, beyond the clearly established legal categories of a parent/ legal guardian because the children who are the most at risk for abuse are likely to suffer the greatest harm because it will discourage well-meaning relatives, friends of the family, and other members of the community from helping the children.
NOTE if a person has a legal duty to act, that duty is satisfied if that person took steps that were reasonably calculated to prevent harm (Cardwell) even if the injured person later dies
ACTUS REUS (there is complete synergy between the MPC and the CL on AR) Acts and Omissions
MPC 2.01(3) – agrees with Jones that there must be a legal duty and legal obligation in order for the omission to be criminally liable.
Liability for commission of an offense may not be based on omission unaccompanied by action unless:
(a) The omission is expressly made sufficient by the law and defining the offense, or
(b) A duty to perform the omitted act is otherwise imposed by law.
Bystanders
In addition, a person who puts another in peril has a duty to take reasonable measures to save him/her (Fishing Pier example)
In determining guilt, analyze defendant’s intent at the very moment when the voluntary act or culpable omission occurs.
Not exempted by fear of children being taken away by the State (Williams) or any other charge like deportation
Hypo 1: Tipsy Arthur runs down the dock and runs into Frank who falls in the water and yells for help and then Arthur watches Frank drown.
2 bases for liability: 1) bumping into Frank & 2) failure to act
Arthur is now on the hook and has the duty to act because he put Frank in peril and therefore must take reasonable measures to save him.
Arthur is probably guilty of either involuntary manslaughter or negligent homicide
Arthur is not guilty of murder because the offense requires proof that he intended to kill or knew that his conduct created a substantial risk of causing death
We look at what mens rea was occurring at the very moment the actus reus (culpable act or omission) took place; only if mens rea and actus reus intersect will there be a legal duty/ criminal liability.
Hypo 2: Carlos just sees a man drowning.
Does he have a duty to save? No.
No statutory requirement, no special relationship.
Hypo 3: Arthur purposely bumps Dorothy who bumps Frank into the water…frank begins drowning.
Dorothy (bystander) has no duty to save
But Arthur does because Dorothy has not acted voluntarily but Arthur has.
WHEN A PERSON PLACES ANOTHER IN PERIL, THEY HAVE A DUTY TO COME TO THEIR AID EVEN IF THEY WEREN’T ACTING NEGLIGENTLY
What if person with legal duty can’t swim?
He would still have to take reasonable steps to save (Cardwell).
He doesn’t need to put himself in peril, but he does need to take calculated steps to save, despite not being able to swim.
If someone is unable to personally fulfill the duty to rescue, sacrificing his or her own life is NOT reasonably expected.
