Criminal Law Outline
Why and What We Punish
There are three main elements of criminal liability: the criminal act (the actus reus), the criminal state of mind (the mens rea), and the absence of a defense of justification or excuse.
The Purposes of Punishment-The WHY?
The four main goals of punishment are retribution, deterrence, incapacitation, and rehabilitation.
Retribution- The retributive function of punishment presupposes that human actors are responsible moral agents who are capable of making choices for good or evil. The normative assertion is that people who make evil choices deserve to be punished. It is essential for the offender to right the wrong or, in the vernacular, to “pay” for the crime. Sir James Stephen, a 19th-century English judge and historian of the criminal law, is a famous proponent of retributivism. He believes that the infliction of punishment by law gives definite expression and a solemn ratification and justification to the hatred which is excited by the commission of the offense. The criminal law thus proceeds upon the principle that it is morally right to hate criminals, and it confirms and justifies that sentiment by inflicting upon criminals punishments which express it. Dostoevsky also believed that society was morally justified in punishing people simply because they had done wrong; he believed that psychologically the criminal needed his punishment to heal the laceration of the bonds that joined him to his society. “Civil” remedies and sanctions do not carry the same meaning as a “criminal” conviction. Critics insist that angry and vengeful emotions do not provide a moral justification for punishment. David Dolinko argues that by valorizing anger and hatred as proper bases for punishment, the theory invites the public and the legal system to indulge the passion for revenge untroubled by moral qualms. Michael Moore insists that the retributive urges spring from a virtuous emotion, and we punish people based on the subjectiveness of punishing ourselves. As to who qualifies as a blameworthy moral agent, the law’s general response is: “Everyone except for the very young, the very crazy, and the severely mentally retarded.” As for whether situational circumstances may negate free choice, the law is willing to withhold blame only if the actor’s capacity to choose a legal option was constrained by overwhelming external pressures. Blameworthiness is a question of degree this is why they use a grading system for offenses, to establish the relative severity of different crimes in the abstract, and an assessment of whether a sentence actually imposed fairly reflects the blameworthiness of the individual wrongdoer and the gravity of his or her crime. Critics say that proportionality provides no method for calibrating sentences with the type of precision that the criminal justice system requires. By insisting that people have the power to choose how they behave, the criminal law enhances their ability to control their lives. Also by adhering to retribution, the criminal law commands widespread public acceptance, because those premises describe the way people treat each other in our culture.
Deterrence-Special deterrence refers to steps taken to dissuade particular offenders from repeating their crimes. General deterrence refers to the impact of criminal punishment on other persons. If the costs of crime are set high enough to assure that the gains to be derived from it are not profitable, the rational person will not commit crimes (JEREMY BENTHAM). The central utilitarian premise is that society has the right to take measures that protect its members from harmful behavior. Critics do not believe that criminal offenders perform the rational calculations that the theory presupposes. Willful engagement in even the more reprehensible violations of legal and moral codes does not preclude an ability to make self-serving choices (Ehrlich). The net payoff must exceed some threshold level before an individual decides to engage in crime. Critics say that it does not offer a precise standard by which to measure the kind or amount of punishment that the law should inflict. Posner says the magnitude of the criminal sanction is not the only factor that determines the deterrent effect of punishment, we should also look at the proximity and certainty of punishment. To measure deterrence one can just look at empirical evidence. Bentham say that we shouldn’t punish the mad, the infant child, or those who break the law unintentionally or under duress, but others say in doing so, we can deter people from even using those defenses while holding them to a higher standard.
Prevention- (Special deterrence, incapacitation, and rehabilitation) Spec. Deter. It discourages the offender from repeating the misconduct, because it presupposes that if he does it once, he may want to do it again. Incapacitation. When criminals are deprived of their liberty, their ability to commit offenses against citizens is ended. The theory requires the system to develop a mechanism that distinguishes those offenders who are potentially recidivist from those who are not through “selective incapacitation” programs. The two policy forms are offender-based- which extend the time served for those predicted to be high-rate offenders among all those convicted of the same charge, and charge-based- which impose mandatory minimum terms on all offenders convicted of selected offense types in which high-rate offenders tend to engage. Rehabilitation. Criminal conduct is caused by the pathology of individual offenders. Karl Menninger believes that it is a humanitarian intervention that promises to cure offenders and return them to law-abiding ways. The patient must have a therapeutic attitude displayed towards them. Martinson says that none of the rehabilitation tactic work. Morris critics in five ways: 1. Human beings pride themselves in having capacities that animals do not, and this theory assimilates humans to animals; 2. If all human conduct is viewed as something men undergo, thrown into question would be the appropriateness of that extensive range of peculiarly human satisfactions that derive from a sense of achievement; 3. In the therapy world nothing is earned and what we receive comes to us through compassion, or through a desire to control us; 4. The logic of cure will push us towards forms of therapy that inevitably involve changes in the person made against his will; 5. The derogation in status of all protests to treatment would be a sign of some pathological condition. Rubin believes that without rehabilitation, the criminal justice system would likely fall back on cheaper modes of punishment
There are only two competing philosophical theories regarding the purposes for punishment .
1st theory is deontological in nature- It is associated with the retributive function of punishment. The institution of punishment is justified by the rightness or fairness of the institution not by the good consequences such institution may generate. The justification for punishment is the moral culpability (or desert) of persons who violate the criminal law.
2nd theory is utilitarian in nature-It is associated with the goals of deterrence, incapacitation, and rehabilitation. Punishment is threatened and imposed in order to achieve beneficial social consequences to prevent or minimize criminal behavior
Criminalization- The WHAT?
The legislature makes the criminalization decisions by allowing freedom until something happens that jeopardizes societal benefits.
Benefits of Criminalization- elimination/severe reduction of the particular anti-social behavior, lower costs and emotional distress, lower tension levels, fear factor to make the society more productive, people see the seriousness of the crime (heavier version of education), and a way to get real retributions.
Costs of Criminalization- out of pocket expenses, discourage acts not prohibited by the law by punishing those that are, children and families will be left behind, diminishing socially beneficial activities, minor criminals will become better criminals because of others that are incarcerated.
Lawrence v. Texas- gay couple having sex in their own home when the police illegally come in and charge them with a crime
Court’s Rule- Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be “drawn for the purpose of disadvantaging the group burdened by law.” It was in the privacy of
ry act in a Voluntary Course of Conduct- People v. Decina-The defendant drove a vehicle, had an epileptic seizure, ran over and killed seven kids. The defendant was found liable for the negligent and voluntary act of driving a car with knowledge that he was subject to these seizures.
Rex v. Manley- About a lady that called the police twice about being robbed on two separate incidents and was charged with public mischief and was convicted because the crime originated in the common law.
The legacy of the common law was a judicial assumption of authority to adapt broad principles to new situations as the occasion arose.
Omissions
Model Penal Code Section 2.01(3): Omission as Basis of Liability
(3) Liability for commission of an offense may not be based on an omission unaccompanied by action unless:
(a) the omission is expressly made sufficient by the law defining the offense; or
(b) a duty to perform the omitted act is otherwise imposed by law.
Billingslea v. State-The appellant was charged with the offense of injury to an elderly individual pursuant to the state statute which said that an omission is an offense that is a failure to act when you have a duty. The man did not have a duty so his conviction was overturned.
In the absence of a legal duty to act, the accused may not be held criminally liable no matter how morally reprehensible the failure to act and how serious the consequences of such failure. In some cases the statute creates the legal duty to act.
Failure to Provide Sustenance
Regina v. Instan- The defendant lived with and was supported by her aunt. The aunt got gangrene and the girl did not do anything about it. The aunt died and she was convicted of manslaughter.
Jones v. United States- Lady was keeping two kids and didn’t take care of them and they were malnourished. She was not convicted because the jury was not charged to find that she had a legal duty to take care of the kids through a contract with the mother of the children.
Failure to Summon Medical Assistance for Drug Overdose
People v. Beardsley-A lady stayed with the dude while his wife was gone for the weekend. They have a good time drink and the girl took some morphine. When the dude thought his wife was coming home, he sent her to his friend’s house and she never woke up. The court found that the man owed her no legal duty.
People v. Oliver-Lady brought a man home after drinking at a bar. Man went into the bathroom to shoot up on heroin. Later her daughter found him and they both took him behind a shed. The court found that she had a legal duty because she took him from a public place where he could have been helped to the privacy of her home where she was the only one that could take care of him.
**It is most highly desirable that men should not merely abstain from doing harm to their neighbors, but should render active services to their neighbors. In general, the penal law must content itself with keeping men from doing positive harm, and must leave to public opinion the office of furnishing men with motives for doing positive good (Thomas Macaulay).** By obligating people to do those things, you run into several problems: The problem of drawing the line of obligation, who is obligated to do so, how much obligation is distributed, in giving the obligation to everyone, you take away the right of autonomy and heroism.**
The Omission of Life-Sustaining Treatment
