Criminal Law Outline

CRIMINAL LAW
 
 
I.                   Purposes of Punishment and Sentencing
II.                Actus Reus
III.             Mens Rea
IV.              Mistake of Fact, Mistake of Law, and Strict Liability
V.                 Rape
VI.              Homicide
VII.           Causation
VIII.        Justification and Excuse Defenses
 
 
I.
 
Why Punish?
Dudley and Stevens: “cannibalism on ship” case; temptation is never an excuse for murder; it does not equal necessity; you can kill in self-defense, but you can’t kill an innocent life; you can’t judge which life has more value (on the same moral plane as the innocent victim); the honorable man ought to rather die himself than kill the innocent
 
Types of Arguments
1) ad hominem attack – fallacy “attacking the source”
2) analogy – using other scenarios to make a point (like larceny comparison in Dudley and Stevens p.137)
3) circular argument– A critique that an argument tries to prove itself (Dudley and Stevens p.138)
4) deductive/inductive – learning from experience.
5) deontological – “the end of the argument” – appeal to nature, the right thing to do regardless of the consequences. (Dudley and Stevens the right thing to do is die)
6) floodgate utilitarian argument – a particular ruling will result in a flood of claims, crimes, etc.
7) foreshadowing the outcome – giving clues as to the conclusion (Dudley and Stevens p. 137 “negative argument”)
8) hindsight – fallacy second guessing a decision with the actual result (Dudley and Stevens p. 136)
9) legal authority – Referring to nonprecedential sources of legal thought (every law professor’s dream)
10) precedent – using (binding or persuasive) case law as authority (Dudley and Stevens p.137 “Lord Hale”)
11) slippery slope utilitarian argument – decide a case by looking to future occurrences; each case will slide further into oblivion if you don’t establish precedent with this case, you need to stop the “downward slope” from happening.
12) utilitarian – “if you don’t do it, society will fall apart” – based upon consequences of action; try to do what is in the best interest for society (“fatal consequence” in Dudley and Stevens p.138)
 
Five Purposes of Punishment
1)      retribution – Deontological – Punishing because the defendant deserves it.
2)      deterrence (specific or general) – general – “you are being punished in order to prevent everyone else from committing this type of crime in the future.” – specific – “you are being punished so you won’t commit this type of crime in the future.”
3)      incapacitation – “you are being punished in order to keep society safe…lock you up.”
4)      rehabilitation – “you are being punished in order to change…to become a better person.”
5)      equal justice – “you can’t lessen the sentence just because you are wealthy and have done good work in the past. You must look at the crime itself and not someone’s personal characteristics”
Purpose of Retribution
n       Retribution is deontological and backward looking in nature
n       This is the #1 reason why we think criminals should go to jail
n       James Fitzgerald Stephen says that it is “morally right to hate criminals”
n       Biological instinct – we think criminals ought to pay a price
n       Michael Moore is a proponent of retribution and says that it is a basic fundamental feeling for people to feel that criminals deserve to be punished
n       Some say that retribution is so fundamental a feeling that the state must punish in order to satisfy society’s need for vengeance
n       Herbert Morris – the idea of benefits and burdens – everyone in society has the “burden” of obeying the law; however, a criminal has relieved himself of the “burden” that obeying the law places upon oneself yet still receives the “benefits” of the system – you have to put “burden” back into the equation in order to restore balance – punishment is the “burden” that will restore the equilibrium – you need to have retribution in order to keep the balance of benefits and burdens in check.
n       Murphy – Criticized retribution by saying that people often commit crimes due to need or deprivation imposed by capitalist society (he is a Marxist), thus it is unfair for society to punish them for a crime caused by the inequality imposed by the society
 
Purpose of Deterrence
n       Deterrence is utilitarian and forward looking by nature
n       People are rational actors and weigh the costs and benefits before doing something. They look at the risk of getting caught versus the penalties of getting caught. If the cost is too high, they deter; if the cost is low, they commit the crime (good example of these rational actors = white collar criminals)
n       Bentham and Posner are the proponents of the cost-benefit analysis of deterrence
n       Argument against cost-benefit deterrence – Hypo: if you go solely by the cost-benefit analysis of deterrence, and you found money in a wallet where no one else was around, the risk of getting caught is extremely low; based on deterrence, you would steal the money – this raises the question about where morality fits into the picture
n       Deterrence does fail sometimes – recidivists commit crimes over and over again – opponents of this purpose say that punishment needs to be harsher
n       Deterrence only works if a court decision is publicized; it has to be notorious
n       Andenaes says that deterrence works mostly on people who aren’t criminals to begin with; it works to reinforce the norms of society
n       Kant criticizes the deterrence argument by suggesting that it is wrong to use someone to prevent other people’s potential crimes
n       Gilligan criticizes deterrence on the basis that violent or emotional actors are not rational actors and don’t do cost-benefit analyses when deciding whether or not to commit a crime, thus increasing the cost of committing a crime has no deterrent effect on the people who need to be deterred the most
 
Purpose of Incapacitation
n       DiIulio says that modern statistics support the efficacy of incapacitation
n       Critics of this purpose say that prisons are maxed out and punishing someone for crimes they have not yet committed simply because they are more “statistically” more likely to commit crimes
 
Purpose of Rehabilitation
n       Von Hirsch and Maher are strong advocates of rehabilitation
n       The theory is that you keep people in jail long enough to adjust their mind to realize what he/she did wrong
n       The length of punishment should be how ever long it takes to achieve the rehabilitative objective
n       Problem: what if the person never gets well? Do you keep in jail for the rest of his/her life?
n       As a society, we generally don’t have the confidence that rehab works
n       In US, the parole board serves to decide when someone has been rehabilitated – in most systems, parole doesn’t exist anymore
n       Should we factor rehab into the penal system?: 1) Yes – we need to do our best to protect society and cut down on recidivism (utilitarian argument), 2) Yes – though it shouldn’t be the sole purpose of punishment, 3) No – we are a society of scarce resources – why should someone who commits a crime be able to get “rehabilitated” and have access to adequate job training when there are so many people who don’t commit crimes that have no access to job training
n       Moore criticizes rehabilitation arguments by suggesting that “paternalistic rehabilitation diverts scarce resources to criminals, is suspicious, and can lead to moral blindness
 
Purpose of Equal Justice
n       Bergman: wealthy rabbi sentenced to 4 months in prison for defrauding insurance companies; he was already on a high pedestal with his wealth and privilege – now he is being brought down to “our level” – restoring the balance
 
Sentencing Systems
n       indeterminate sentencing system: the judge has a lot of discretion; the statute gave boundaries for sentencing, but usually the gaps were very wide (i.e. from probation to 30 yrs. in prison); the judge could also decide parole measures with an indeterminate system; many critics of the indeterminate system have said that the judges were too lenient.
n       determinate sentencing system – shift to this in recent years; sentencing guideli