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Criminal Law
University of Georgia School of Law
Mayson, Sandra G.

What to punish?
Why punish?
Is this an appropriate use of the criminal law?
Is criminalizing this conduct consonant with the special function of the criminal law?
Would it be an expression of community condemnation? Or is there another, more narrow agenda behind the criminalization of this conduct? (e.g., politically motivated, vengeance-seeking)
What conduct should be criminalized?
Mill’s Harm Principle: A society should only criminalize conduct to prevent harm to others. Is criminalizing this behavior aimed at true harm?
Counter: How do you determine what “harmful” conduct is? Even if we had a common definition, where does different conduct fall on the spectrum of “harmfulness”?
Blameworthiness: Is conduct moral or immoral?
Counter: Who decides what is blameworthy?
Utilitarian Calculus: Do the benefits outweigh the costs of criminalization?
Potential Benefits:
Deterrence – But does it work?
Rehabilitation – Is this really criminal law’s role?
Expression of moral norms – But to what end?
Potential Costs:
Diversion of police resources
Increased costs in enforcement and punishment
Subjection of citizens to uncertainty as to what conduct is prohibited (fair notice)
Discriminatory enforcement against poor and marginalized  
Expanded scope of already broad criminal law
Criminal vs. Civil Law
– Community Condemnation: criminal law expresses condemnation > conviction has a unique stigma not attached       to a civil judgment
– Intentionally Inflicted Suffering (punishment): “… the essence of punishment . . . lies in the criminal conviction            itself” rather than the hardship imposed as a result of conviction > punishment is imposed because of (not in spite            of) the suffering and unpleasantness it entails (see p. 96)
– Social Harm: criminal law addresses social/public harm, whereas civil law primarily deals with harm inflicted upon private parties
                – Civil proceedings can result in loss of liberty (e.g., civil commitment, immigration detention)
                – Civil proceedings can result in loss of property (e.g., damages, fines, fees, forfeiture, etc.)
                – The state is sometimes a party in civil proceedings (e.g., any agency enforcement action, civil commitment)
Goal of Criminal Law? Why do we have this system – what do we hope that criminal law will achieve?
Utilitarian: deter certain behavior (prevent crime)
Expressivist: build community solidarity by expressing moral norms
Retributivist: impose deserved punishment (“just deserts”)
What conduct should be criminalized?
– Mill’s Harm Principle: Only punish for acts that cause harm to others. > But what constitutes harm?
– Retributive view: immoral/blameworthy conduct? > Who decides what is blameworthy?
– Utilitarian calculus: Do benefits of criminalization outweigh costs?
                – Potential Benefits:
                                – Deterrence – but does it work?
                                – Rehabilitation – but why do we need criminal law to do that?
– Expression of moral norms – but to what end?
– Potential Costs:
– Diversion of police resources
– Discriminatory enforcement – who will laws be enforced against?
– Usually poor & marginalized (NOLA vice squad ex.)
– Possibility of coercive / abusive enforcement
– Forces sex work into shadows – suppression of public health   problems & victimization of sex workers
What constitutes a completed crime?
1. Conduct – include affirmative behavior and omissions
2. Performed with a specific mental state
3. That inflicts or threatens (causes)
4. Substantial harm to individual or public interests (harm to society, not just private wrong)
5. Without justification or excuse (defenses)
The Crime Itself
1.  Actus Reus = Conduct (+ Attendant Circumstances + Causation + Harm)
                a. Voluntary Act – bodily movement consciously willed by the mind
                                (i) Omissions (“negative acts”) generally do not trigger criminal liability, unless it falls under one                                     of the exceptions where a duty to act is imposed by law
                b. Attendant Circumstances – facts that must exist in addition to conduct
                c. Causation – (i) But-for, & (ii) Proximate
                d. Social Harm (required for result crimes, not conduct crimes)
2.  Mens Rea = Intent
– What degree of mens rea is required for each conduct element of a crime? Depends on the statute     
                – If a statute is silent as to mens rea…
                                – If MPC applies, then apply MPC default rules
                                – If MPC does not apply, look to see if any relevant case law stipulates the mens rea requirement >                       if no case law, it is a matter of statutory interpretation
Statutory Interpretation  
– Analysis:
Plain meaning of text
Purpose of statute
Legislative intent
Likely effects of given interpretation
Appropriate role of courts versus legislature in defining crimes
– Canons of Statutory Interpretation:
                – Rule of Lenity: When statute’s language is unclear and ambiguous, courts should resolve ambiguity in favor of       D in order to prevent courts from enlarging the scope of statutes through their interpretive powers. 
                – Presumption of Mens Rea (exceptions – public welfare offenses and statutory rape)
“Social Harm” –  2 types of crimes:
                (1) “Result” Crimes – actions punished because of their unwanted outcome, e.g., death
                (2) “Conduct” Crimes – actions punished because of the specific, dangerous conduct involved, e.g., DUI
Result crimes clearly result in “social harm,” as their outcomes are suffered not only by the direct victim but by society, e.g., losing a sense of security. In some respects, it appears that conduct crimes involve no social harm, as such acts are punished for the purpose of avoiding and deterring social harm. In another sense, however, they do involve social harm, as the conduct punished puts society in danger.
Burden of Proof
In re Winship > held: (1) Due Process Clause prohibits conviction (and punishment) unless state has proven all elements of a criminal charge beyond a reasonable doubt, and (2) this core requirement of due process extends to adjudication of juvenile delinquency for a criminal act
What justifies state-inflicted punishment?
UTILITARIANISM > forward-looking
– Punishment justified only if it produces net social benefit (mainly crime prevention)
                – Deterrence: incentivize not committing crime in future
                                – Specific: dissuading particular person from committing crime in future
                                – General: dissuading public at large from committing crime in future
                – Incapacitation: physical crime prevention by incarceration, GPS monitoring, supervision (varying degrees of                 incapacitation)
                – Rehabilitation: changing someone’s self and life so he is less likely to commit crime in future
                Challenges to Utilitarianism
                1)  Punishing the Innocent – Ok to frame and punish an innocent person if benefits outweigh the costs?
                2)  Disproportionate punishment – Shoplifting hypothetical: OK to sentence shoplifter to 10 years for deterrent benefit?
                3)  How to tell when benefit exceeds cost? Who decides which costs / benefits count, and how to measure them?
RETRIBUTIVISM > backward-looking
– Proportionality of punishment to blameworthiness of crime > “just deserts”/culpability
                Challenges to Retributivism
                1)  Punishment that does more harm than good
                2)  Fundamental challenge to the notion of desert: Free will is an illusion; no one “deserves” anything in a    determined world.
                3)  Even if some people do deserve punishment: How to tell what punishment is deserved? Who gets to decide?
                                Positive Retributivism – a just society may and indeed is obligated to punish the when deserved  

s a voluntary act that satisfies the act requirement of the statute:
Did the person commit the required action, and did she consciously will the action as it was happening? Was the person physically capable of doing otherwise? If so, there is a voluntary act.
MPC § 2.01 – Voluntary Act Requirement
Voluntary Act – a consciously willed bodily act
Omission – only triggers criminal liability if person has a legal duty to act
Martin v. State – conviction for violating statute re: public drunkenness overturned b/c it was contrary to the presupposition that D’s public appearance was voluntary
When is “possession” an act?
MPC § 2.01(4) –  Possession is an act if the possessor either knowingly obtained the object possessed or was aware he was in control of it for a sufficient period to have been able to terminate possession of it (exercise of control is not enough > must have intent)
O.C.G.A. § 16-13-30
– Actual Possession – item in question is located on the body of the accused
– Constructive Possession – where the item is not on the body of the accused, but possession can be inferred from the circumstances > GA: state must prove the accused intended to exercise dominion and control over the item in question
                – People v. Low – CA statute prohibited bringing illegal substances into jails. D taken to jail and found with drugs       on him. Court held there was a voluntary act b/c he D had the opportunity to relinquish drugs prior to entering               jail and                 was thus convicted based on his failure to act (omission).
                – State v. Eaton – Statute prohibited possessing illegal substances in jails. D taken to jail and found with drugs on       him. Court held there was an involuntary act. IT said that relinquishing the drugs would have provided evidence                of another crime and the law cannot force someone to incriminate himself to avoid liability.
– Why the different holdings? > Possibly b/c CA statute prohibited bringing drugs in, whereas other statute only prohibited possessing drugs while in jail. > Still, difficult to reconcile if definition of possession as an act is applied.
Why not punish involuntary acts?
Retributive justification for punishment doesn’t apply – not culpable b/c not a choice
Utilitarian justifications don’t really apply either – can’t deter involuntary acts
[But note that (1) you could deter careless behavior that risks dangerous involuntary acts, and (2) there could be utilitarian benefit to incapacitating or rehabilitating people prone to harmful involuntary acts. So, if you still think punishing involuntary acts is unjust, that suggests that utilitarian benefit from incapacitation/rehabilitation is not an adequate justification for punishment.]  
Constitutional voluntary act requirement?
Robinson –
F: Robinson convicted per CA statute that criminalizes being addicted to narcotics. Trial judge told jury no need to find particular act w/in CA to convict, just status of having a drug addiction.
Q: Does punishment for addiction only violate the 8A CUPC?
H: Yes. 8A CUPC prohibits criminal punishment for addiction only.
Status (no act)
Does the holding rest on one of these or on the combination? (Robinson clearly holds that the 8A prohibits punishment for involuntary status, but what about involuntary acts)?