Select Page

Criminal Law
University of Georgia School of Law
Kurtz, Paul M.

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 their home so conviction would violate the Equal Protection Clause of the 14th Amendment.
Dissent- Scalia says that it is impossible to distinguish gay sex from other morals offenses such as the recreational use of heroin.
The Criminal Act
The Conduct Requirement
Doe v. City of Lafayette- Man was a convicted sex offender, but his last conviction was ten year before this incident. He claims that his urges are triggered by emotional vulnerability, typically in the late evening. Man stopped by the park to watch the children. He wanted them but stayed in his car and left the park without coming in contact with them. Psychologist to police about the incident after Doe call him, and Doe was banned from any park in the city.
Court’s Rule- You cannot punish a person for thoughts, desires, or background, only actions
Dissent- Doe’s steps of driving to the park and watching the children constitute punishable conduct, because not everyone is equally capable of controlling his desires and preventing them from becoming actions that endanger others.
Jeffries and Stephan say that the significance of the act requirement is in three-folds: 1. It serves a critical evidentiary function in corroborating other proof going to the existence of evil intent; 2. It differentiates daydreams from fixed intentions; and 3. It preserves the liberty of the individual citizen by constraining penal liability within a tolerable sphere.
Martin v. State- Martin was convicted of being drunk in a public place when a police arrested him at his house and carried him to the public place. The statute provided that the person appears in the public place while intoxicated.
Court’s Rule- The word appears in the statute is presupposed to mean a voluntary appearance, and with that said Martin did not voluntarily appear because he was taken from his home.
The Voluntary Act Requirement
A voluntary act is one that must result from an exercise of will. The requirement is not that the exercise of will be free from pressure by circumstance or other people.
Instances of Involuntary Conduct
Physically Coerced Movement- A shoves B, who bumps into C, who falls into the road and get hit. B is not liable because everything is attributed to A.
Reflex Movements- If a person is suddenly attacked by a swarm of bees, the driver is not liable for the resulting loss of control over the vehicle.
Muscular Contraction or Paralysis- A person who has no control over his limbs cannot be said to act voluntarily with respect to their movement.
Unconsciousness- The actor’s bodily mo

s that begins with the act of acquisition and that is continued by a failure to divest.
Model Penal code Section 2.01(4): Possession as an Act
(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.
Interpretation of Conduct Elements
Keeler v. Superior Court-Trying to decide whether an unborn but viable fetus is a “human being” within the meaning of the California statute defining murder because a lady’s ex kneed her in the abdomen and the fetus had a fractured skull and was stillborn. The court did not find him guilty because common law chose the point of viability birth, but do to new discoveries and research the dissent argues that viability is earlier in the pregnancy stage because the courts have even extended life after a gunshot wound because of medical advances.
Principle of Lenity- when there is no statute in place, the court should apply a lesser sentence for the offense which then favors the defendant even more because the burden of the preponderance of evidence is on the state and there has to be a unanimous jury verdict to convict.
People v. Sobiek- The defendant was indicted for four counts of grand theft when his partners said that he embezzled money from the partnership. The court held that a partner could steal from other partners even if they all have a joint interest. The common law rule is that a partner cannot embezzle from a partnership because he has a joint interest. The court believes that if the respondent relied on mistaken law traditional notions of fair play and substantial justice are not offended by applying to his act the clear meaning of the Sections.
The Model Penal Code Section 223.0(7) Property of Another
(7) “property of another” includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement.
The Bouie case- during the civil rights movement, blacks sat at a lunch counter. There were not signs posted then to let the blacks know that they were not supposed to sit there and the Supreme Court would not make the statute retroactive to the incident because it violated the 14th Amendment.
The Doctrine of Strict Construction
The common law rule is to strictly construe penal statutes; and in the face of ambiguity to construe it in favor of the accused. The Legislative response to this doctrine of strict construction is within the MPC:
Model Penal Code Section 1.02
(1) The general purposes of the provisions governing the definition of offenses are:
(a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens    substantial harm to individual or public interests;
(b) to subject to public control persons whose conduct indicates that they are disposed to               commit crimes;
(c) to safeguard conduct that is without fault from condemnation as criminal;
(d) to give fair warning of the nature of the conduct declared to constitute an offense;
(e) to differentiate on reasonable grounds between serious and minor offenses…
(3) The provisions of the Code shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this Section and the special purposes of the particular provision involved…
McBoyle v. United States- the Supreme Court held that a stolen aircraft did not qualify as an interstate transportation of a stolen vehicle.
The Criminal Mind
The Foundations of Mens Rea
A “guilty mind” is generally regarded as an essential requirement for the imposition of criminal liability. The mens rea has to be linked with the actus reus in order for a crime to be committed.