Criminal Fall 2007
A. Definition: A harm against society; act or omission which government has chosen to punish with stigmatizing punishment – deprivation of life or liberty at highest extreme.
B. Criminal v. Tort Law
1. Tort is a civil harm.
2. Criminal law has higher burden of proof
a. Persuasion beyond a reasonable doubt v. By preponderance of evidence
3. Double jeopardy only affects criminal cases
a. One acquitted of a criminal charge can be charged with a civil suit
4. Criminal is public statutory law, tort is private civil law
a. Criminal laws managed by public officials
b. Criminal law sets standard, gives public notice, defines illegal conduct and punishment to be received, provides consistency in what prosecutors can charge, provides parameters for crimes, distinguishes between major and minor offenses.
5. 5th and 6th amendments apply only to criminal law
6. Criminal law allows for right to counsel for defendants
II. Theories of Punishment (p. 27)
A. Influence judges as to what punishment is appropriate
1. Constraints, but usually a range is provided
B. Helps legislatures define, justify punishments
C. Shapes public view of what crimes are severe
D. Public takes punishment into account when deciding whether to commit a crime
E. Shapes arguments to jury or judge during trial and sentencing
F. Affects how case is viewed by constituents
G. Role of precedent
H. Factors determining punishment:
1. Severity of offense
2. Danger to society
3. Likelihood of recurrence
I. Swiftness of punishment is deterrent, severity is not
1. Punishment only works if laws and punishment deemed as fair
J. Retributivism (Kant) – punishment is justified on grounds that wrongdoing merits punishment
1. Atonement – Crime is result of personal character, eye for an eye
2. Proportionality – punishment should fit depravity of act
3. Backward looking, focusing only on crime itself
4. Affirmative justification
5. Focuses on blameworthiness, supposes person had choice to commit crime
K. Utilitarianism (Bentham)
1. Purpose of law is net happiness of society
2. Punish only if creates a greater good
3. Forward looking
4. Specific Deterrence – focuses on “this” offender
a. Intimidation – Forces ∆ to use cost-benefit analysis, he won’t want to return
b. Incapacitation – restraint, take away power of committing injury
5. General Deterrence – focuses on society as a whole
a. Intimidation – ∆ is punished in order to teach society that crime does not pay; hopes to affect a net reduction in the overall crime rate
6. Rehabilitation – Therapeutic evaluation of criminality as a disease rather than a vice. Offenders are not responsible for their actions and they need treatment.
a. High rates of recidivism
b. How can reform work when school, church, family didn’t work?
c. Could work in theory if more resources dedicated
d. Penitentiaries originally designed for rehabilitation
e. Lack of political support
i. Liberals – judge to determine sentencing causes prejudice
ii. Republicans – coddles prisoners
iii. Libertarians – brain washing
7. Limits punishments where:
a. Misapplied – where there is no real offense (self-defense, more good caused than bad)
b. Inefficacious – no power to produce effect on will, no tendency toward prevention of like acts
c. Superfluous – the same end may be obtained by means more mild
d. Too expensive – evil of punishment exceeds evil of the offense
L. Cost-Benefit Analysis
1. Severity of the offense discounted by the chance of being caught and chance of being punished
2. Theoretically if we increase the punishment there should be a decrease in the crime rate, but most criminals are not thinking about a cost benefit analysis when the commit the crime: a. Does not take into account those acting impulsively or irrationally
b. Some criminals are risk takers and just like the excitement of committing the offense
c. Severity does not generally decrease the deterrent effects
III. Elements of Criminal Liability
A. Actus Reus – Criminal act
1. Malum in se offense – Common law offense, morally bad, some level of mens rea required
2. Malum prohibitum offense – Regulatory offense, not bad in and of itself, risk to public health or safety
B. Mens Rea – Guilty mind (strict liability crimes do not require mens rea), degrees determined by statute
C. Causation – Proof ∆’s act caused the harm
1. Surrounding circumstances – Something may have happened between time of act and harm
D. Result – Homicide requires a dead body or evidence of certainty there is a body somewhere
IV. Actus Reus – criminal or bad act
A. Need for an Actus Reus
1. Can’t punish on mere thoughts alone, guilty intent must be accompanied by an act
2. Protects autonomy, privacy, freedom of speech, and equality (p. 96)
3. Punishment must be for past voluntary wrongful conduct specified in advance by statute
4. Mere thoughts are a poor indicator of future conduct
a. People change their minds
includes a voluntary act.
2) the following are not voluntary acts within the meaning of this Section:
a)reflex or convulsion, b)bodily movement during unconsciousness or sleep
c)conduct during or resulting from hypnosis d)bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.
4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.
2. Rule of Lenity – Criminal statutes should be strictly construed in favor of Δ.
a. laws provide notice
b. legislature must make statutes complete and unambiguous – construe against drafter
c. rule is not very efficient – forces legislature to redraft unclear laws
i. but legislature intends judiciary to interpret unclear laws?
d. tendency to disregard rule in times of war, etc.
e. social stigma to Δ if convicted, so construed in his favor
3. Why require voluntariness?
a. society doesn’t favor punishing those who aren’t blameworthy
b. undermines autonomy
c. deterrence – a person acting involuntarily cannot be deterred
i. counter argument – cannot be deterred from involuntary conduct, but may be deterred from placing themselves in situations in which their involuntary conduct may cause harm to others (epileptic attacks, etc.)
d. retributivism – person must have had choice to act to justify punishment
i. sleepwalker cases – person did not have a choice to act
4. Anticipating voluntariness
a. Though act may be involuntary, must also not have previous knowledge or reason to believe act may occur and crime or injury result under circumstances you’ve placed yourself in (foreseeability).