Criminal Law – Fall 2011
Professor Jackie Ross
University of Illinois College of Law
Criminal Law Theories
Utilitarianism
[1] Deterrence – The utilitarian theory is essentially one of deterrence – punishment is justifiable if, but only if, it is expected to result in a reduction of crime. Punishment must be proportional to the crime, i.e., that punishment be inflicted in the amount required (but no more than is required) to satisfy utilitarian crime prevention goals.
Utilitarians consider the effect of a form of punishment in terms of both general deterrence and specific (or individual) deterrence. When the goal is general deterrence, punishment is imposed in order to dissuade the community at large to forego criminal conduct in the future. When the goal is specific deterrence, punishment is meant to deter future misconduct by an individual defendant by both preventing him from committing crimes against society during the period of his incarceration (incapacitation), and reinforcing to him the consequences of future crimes (intimidation).
[2] Rehabilitation – Another form of utilitarianism is rehabilitation (or reform). Examples of rehabilitative “punishment” include: psychiatric care, therapy for drug addiction, or academic or vocational training.
Retributivism – Under a retributive theory of penal law, a convicted defendant is punished simply because he deserves it. There is no exterior motive such as deterring others from crime or protecting society – here the goal is to make the defendant suffer in order to pay for his crime. Retributive theory assigns punishment on a proportional basis so that crimes that cause greater harm or are committed with a higher degree of culpability (e.g., intentional versus negligent) receive more severe punishment than lesser criminal activity.
Denunciation (Expressive Theory) – The denunciation theory – which holds that punishment is justified as a means of expressing society’s condemnation of a crime – has both utilitarian and retributive components. Under a utilitarian theory, denunciation is desirable because it educates individuals that the community considers specific conduct improper, channels community anger away from personal vengeance, and serves to maintain social cohesion. Under a retributive theory, denunciation serves to punish the defendant by stigmatizing him. Under this theory all society is harmed by the punishment but only the guilty have societal disapproval expressed against them.
I. Extortion
1. Extortion by the use of actual or threatened force: The act or practice of obtaining something or compelling some action by illegal means, as by force or coercion. — Also termed statutory extortion.
a. Coercion is needed (whether actual or threatened force).
b. Consent is needed
“The distinction traditionally drawn between robbery by intimidation and blackmail or extortion is that a person commits robbery when he threatens to do immediate bodily harm, whereas he commits blackmail or extortion when he threatens to do bodily harm in the future.”
Extortion usually involves appearance of consensual transfer of property, because there is time lag between threat and benefit, sometimes it appears to be a Quid Pro Quo.
2. Extortion by wrongful threat of economic harm: when the agreement is a pay-to-play scheme which cannot only benefit the victim but diminish its chances or benefits, there is extortion.
a. Absent element of threat it is not extortion but bribery (consent and lack of coercion ≠ extortion).
3. Extortion by threat to injure victim’s reputation (blackmail): when the agreement is a pay-to-play scheme which cannot only benefit the victim but diminish its chances or benefits, there is extortion.
a. A threat to injure someone’s reputation is not inherently wrongful.
b. Only wrongful if used to obtain property to which the threatened is not entitled. The test is whether the D had claim of right to the $ demanded.
Property must be obtained, whether tangible or intangible and interfering with the victims property rights is insufficient as the D must also seek to obtain control of the use and disposition of that property for himself.
4. Extortion under color of official right: The offense committed by a public official who illegally obtains property under the color of office; esp., an official’s collection of an unlawful fee. “The dividing line between bribery and extortion is shadowy. If one other than the officer corruptly takes the initiative and offers what he knows is not an authorized fee, it is bribery and not extortion. On the other hand, if the officer corruptly makes an unlawful demand which is paid by one who does not realize it is not the fee authorized for the service rendered, it is extortion and not bribery.
Chapter 4 -Actus Reus
I. Actus Reus
[A] General Rule – Subject to limited exceptions, a person is not guilty of a crime unless his conduct includes a voluntary act. Few statutes defining criminal offenses expressly provide for this requirement but courts usually treat it as an implicit element of criminal statutes.
[B] Actus Reus: The “actus reus” of an offense is the physical, or external, component of a crime what society does not want to occur. Two Elements: The actus reus of a crime consists of two components (act and social harm), both of which must be proved by the prosecutor beyond a reasonable doubt.
1. Voluntary Act or Legal Omission Generally speaking, there can be no crime in the absence of conduct. But, only a certain type of conduct qualifies, namely, conduct that includes a voluntary act. In rare circumstances, a person may be prosecuted because of what he or she did not do—an absence of conduct. An “omission” substitutes for a voluntary act when the defendant has a legal duty to act.
2. Social Harm People are not punished for conduct (or omissions), but rather for conduct (or omissions) that result in “social harm.”
II. Voluntary Act
[A] General Rule – A person is not guilty of a crime unless his conduct includes a voluntary act. (both in Common Law and the MPC 2.01(1))
1. Conduct . An act involves conduct. A person is not prosecuted solely for his thought. There must be some externality to those thoughts.
2. CL Definition of Voluntary Act. A “voluntary act” is a willed muscular contraction or bodily movement by the actor. The slightest movement constitutes an act, but it must be willed and not an unwilled impulse. Habitual conduct – even if the defendant is unaware of what he is doing at the time – may still be deemed voluntary. Acts deemed involuntary may include: spasms, seizures, and bodily movements while unconscious or asleep.
3. MPC Definition of Voluntary Act. Similar to the CL, MPC § 2.01 requires that criminal conduct include a voluntary act. It defines an act as a bodily movement whether v or inv. It does not define the term “voluntary.” Comments list bodily movements that are involuntary: reflexes, convulsions, conduct during unconsciousness, sleep, or due to hypnosis, as well as any conduct that “is not a product of the effort or determination of the defendant, either conscious or habitual.” Excluded from the requirement that the act be voluntary are
der is a “result” crime, because the social harm is the death of another human being, irrespective of the nature of the conduct that resulted in such death (e.g., whether the death occurred by shooting, stabbing, or poisoning)
.[3] Combined “Result” and “Conduct” Elements – Some offenses contain both “conduct” and “result” elements. For example, a statute may define first-degree murder as the killing of another human (the result) by means of a destructive device or explosive (the conduct).
[4] Attendant Circumstances – An “attendance circumstance” is a fact or condition that must be present at the time the defendant engages in the prohibited conduct and/or causes the prohibited result that constitutes the social harm of the offense. Often an attendant circumstance is an element of the offense, e.g., the crime of aggravated burglary – the breaking and entering of the dwelling house of another at nighttime – contains an elemental attendant circumstance that the crime must occur at night.
[B] Constitutional Limits – Various constitutional provisions limit the extent to which a legislature may proscribe “social harm”. For example, the First Amendment bars a state from criminalizing most forms of speech. Even where some social harm may occur – such as some persons may find a given form of speech offensive – the law deems that the integrity of constitutional rights outweighs the society’s interest in preventing the harm. [See, e.g., Texas v. Johnson, 491 U.S. 397 (1989) (pertaining to defacing the American flag)].
“Privacy” rights, such as reproductive choice and sexual conduct of consenting adults, have also been protected from state attempts to criminalize such conduct. [See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 836 (1992); Griswold v. Connecticut, 381 U.S. 479 (1965); Lawrence v. Texas, 156 L. Ed. 2d 508 (2003)]
Chapter 5
Mens Rea
I. Nature of Mens Rea
Common Law Principle and Definition Simply put, “mens rea” refers to the mental component of a criminal act. It can be both a general blameworthiness and a specific one.
[A]Board “Culpability” Definition of “Mens Rea” – Mens rea was defined broadly in terms of moral blameworthiness or culpability. Thus, at common law and in jurisdictions that still define the doctrine broadly, it was and is sufficient to prove that the defendant acted with a general culpable state of mind, without the need to demonstrate a specific state of mind such as “intentionally,” “knowingly,” or “recklessly.”
[B] “Elemental” Definition of “Mens Rea” – Much more prevalent today is a narrow definition of mens rea which refers to the particular mental state set out in the definition of an offense. In this sense, the specific mens rea is an element of the crime. Note that a person can be culpable in that he was morally blameworthy yet lack the requisite elemental mens rea.
