2 Theories of Punishment: Utilitarian & Retributive
Utilitarian
· Future oriented
· Purpose of all law is max. net happiness of society
Retribution
· Backward looking/no concern for prior offenses
· Focus on moral blame-worthiness of the criminal
· Focus on the individual → not society
3 Elements of Utilitariaism:
1. Deterrence (General & Specific)
Extreme punishments may be accepted if others are deterred from crime, particularly in cases of 1st impression.
Rules for Deterrence
1) evil of punishment must be greater than the advantage of the offense
2) the more deficient in certainty a punishment is, the more severe it should be (DUI– if you drive drunk, what are your chances of getting caught? Small, but the penalty is huge $$$ and jail time)
3. When there are 2 linked offenses (IE: robbery and murder), punish the greater offense (murder) more severely
4. The greater the offense, the greater reason there is to hazard a severe punishment for the chance of preventing it
2. Rehabilitation: therapy to fix the criminal; drove indeterminate sentencing (PA and Auburn models)
3. Incapacitation: incarcerations, drug rehab, mental health treatment, home arrest
For incapactiation to work: 1) D should not be repeat offender, 2) incapacitation doesn’t auto lead to another criminal replacing D on the street (IE: organized crime) and 3) prisons ≠ schools of crime.
2 Tenets of Retributivism
1. Morally blameworthy should be punished (would never punish insane person/mentally retarded/child b/c they have no sense of guilt)
2. Punished in proportion to the harm they caused
Social Contract Theory: burdens and advantages (theory underlying retribution)
Today’s US Penal System is Retributive
Expressive/Denunciation (not so important) for the exam– hybrid of the two main theories: shunning
Justification and Excuse have U and R attributes!
ELEMENTS OF A CRIME:
ACTUS REUS, MENS REA, CAUSATION
ACTUS REUS
1. Past
2. Voluntary (can’t be status offense)
3. Wrongful Conduct (Retribution/Utilitarian)
4. Specified (Specificity of language is key to enforcement)
5. in Advance (Legality: No Ex-Post Facto; state must prescribe conduct and proscribe punishment)
6. by Statute (criminal law must be by statute; no common law)
3 Types of Wrongful Conduct : Voluntary Acts, Omission, Possession
1) VOLUNTARY ACTS are volitional.
What is involuntary conduct?
Uncontrollable → No Crime
·
· A bodily movement that is otherwise not a product of an effort or determination by the actor; either conscious or habitual
Examples of Involuntary Acts:
· Status in Society (drug addict, homelessness)
· Reflexes/Muscular convulsions
· asleep or unconscious
· Conduct during hypnosis
· Insanity
· Sleepwalking (depends on jurisdiction)
· Shock (automatism) caused by traumatic injury, seizure, etc.
· Being physically moved by the police (to a hwy while drunk so they can arrest you for public intoxication…)
When is an involuntary act criminally liable?
When ∆ undertakes a voluntary acting knowing w/substantial certainty that there is a strong likelihood of an uncontrollable act occurring.
IE: A has regular seizures (involuntary). A drives his car (voluntary), has a seizure while driving and causes an accident. A is criminally liable for his voluntary action (driving) b/c he knew the seizures might likely follow.
2) OMISSION
Omission: a failure to act when there is a duty (legal obligation to act)
Moral Obligation ≠ Legal Duty
Examples of Legal Duties:
· Status Relationship
· Statute
· Contract
· Voluntarily assumed (if you secluded them or caused the harm)
· Set off a chain of events → obligates you to call for help if you can’t fix it yourself
You are never expected to risk death/ serious bodily injury to yourself in order to perform a legal duty.
3) POSSESSION
Constructive: ability/intent to exercise dominion and control
Actual Possession: actual dominion and control
Can jointly possess something
MENS REA: GUILTY MIND
Mens rea is required for conviction
UNLESS Strict Liability Crime (defined in statute)
3 Types of Crimes: SL, Gen Intent, Specific Intent
Strict Liability/Mala Prohibita
General Intent
Specific Intent
No mens rea required for conviction
Statute must specifically be ID’d as SL, or TT can assign culpability category to it
No defense for Mistake of Law or Fact
Moral blameworthiness
Transferable to other crimes
ed = prohibited
Mistake of Law
Old Rules
Current Rules
Mistake of Fact = defensible if an honest and reasonable mistake of fact
Mistake of Law ≠ defense
Mistake of Fact = defensible if honest and reasonable (Gen Intent) (Specific intent allows unreasonableness)
C/L: If you make a mistake of fact and the situation is not as you believed it to be → guilty of larger offense
MPC: If make a mistake of fact and situation is not as you believed it to be → guilty of the lesser offense
defensible if situation is as you would have believed it to be
Mistake of Law = C/L defensible if 1) no fair notice (unaware statute exists /undefinable/unspecific in statute or mistaken on a collateral issue and results in misunderstanding –V accuses you of violating a lien law, and you had no idea that civil law existed) or 2) reasonable reliance on official interp.
MPC Mistake of Law Defensible if =
1. ∆ lacks mens rea of a material element of the crime
2. Reliance on official interpretation
3. No fair notice or mistaken on collateral issue
(example: if you reasonably believed you committed the lesser offense but in reality you committed larger → can be charged with the lesser
Public Policy behind Mistake/Ignorance
Ignorance ≠ No Excuse is a LEGAL FICTION because…
Too hard to make a case where ∏ must prove ∆ knew the law/Thus: Set std that everyone knows the law
Publicly educating people about what the law is and consequences for violating the law/Thus: reduces uncertainty/confusion about what conduct is punishable
Willful ignorance (aka Willful Blindness) ≠ excuse for not following the law
CAUSATION
Does ∆’s act set into motion a chain of events that affect a result? The further the end result gets from ∆’s act, the less sure we are there retains a connection.
Limiting Causation
1. Foreseeability by Actor
2. Achieved Without Intervention
3. Regularly Following Such a Condition
