Professor Andrew Leipold – Criminal Law – Fall 2011
INTRODUCTION – PURPOSES OF PUNISHMENT
I. BACKGROUND
A. Three main elements of criminal activity (that must be present to convict)
1. The criminal act (actus reus), the criminal state of mind (mens rea), and the absence of a defense of justification or excuse
B. Two long-standing philosophical debates:
1. What are the functions served by criminal punishment and
2. What factors are relevant to identifying the kinds of behavior that should be punished?
II. THE PURPOSES OF PUNISHIMENT
A. Four main goals of punishment: retribution, deterrence, incapacitation, and rehabilitation. However, there are at bottom only two competing philosophical theories.
1. Deontological (associated with retributive function): justification for punishment is the moral culpability (or desert) of persons who violate the criminal law.
2. Utilitarian (associated with deterrence, incapacitation, and rehabilitation): punishment is threatened and imposed in order to achieve beneficial social consequences (i.e. to prevent and minimize criminal behavior).
3. Criminal justice system rests on a mixture of these philosophies
B. Notes on Retribution
1. The retributive function of punishment presupposes that human actors are responsible moral agents who are capable of making choices for good or evil. People are punished because they deserve it for violating society’s norms.
a) Free standing – don’t have to consider how likely they are to re-offend.
b) Degree of punishment depends on mens rea.
2. Critics of retributivism insist that it invites the public and legal system to indulge the passion for revenge untroubled by moral qualms.
a) Other critics suggest that crime is not produced by offenders’ vicious choices, but by vicious circumstances in which offenders are born and forced to reside by an uncaring society
3. Who qualifies as a blameworthy moral agent? Everyone except for the very young, the very crazy, and the severely mentally retarded.
4. Retribution places an important limitation on the application of criminal blame, namely, the principle of proportionality. The substantive criminal law implements the principle of proportionality in at least two ways:
a) The system grades offenses (i.e. felonies v. misdemeanors, max penalties, etc)
b) Whether a particular penalty is or is not disproportionate for a particular crime, in the light of all of the surrounding circumstances (most sentencing schemes give judges some discretion to consider case-specific factors when determining penalty)
5. According to retributive philosophy, retribution requires punishment whether or not the punishment produces beneficial social consequences.
C. Notes on General Deterrence
1. Deterrence encompasses two distinct concepts: special deterrence and general deterrence
a) Special deterrence: deterrence by intimidation, refers to steps taken to dissuade particular offenders from repeating their crimes
b) General deterrence: deterrence by example refers to the impact of criminal punishment on other persons.
2. Unlike retribution, deterrence is not backward looking in the sense of exacting vengeance for a crime. It is forward-looking in the sense of preventing or reducing the incidence of future offensive behavior.
3. Critics of this theory don’t believe that criminal offenders always perform the rational calculations that the theory presupposes. They also complain that it does not offer a precise standard by which to measure the kind or amount of punishment that the law should inflict.
4. We have be careful with over-deterrence (i.e. deter people from drinking and driving, not driving in general)
D. Notes on Individual Prevention
1. Incapacitation: if the offender is incarcerated, they can’t commit any crimes. Very important justification for why we imprison people.
a) Requires the system to develop a mechanism that distinguishes those offenders who are potentially recidivist from those who are not because it provides no justification for punishing offenders who would not commit another crime anyways.
2. Rehabilitation: help people get better. Some people are more likely to benefit from rehabilitation than others. Mens rea is a sorting mechanism.
E. Actus Reus (Conduct, Circumstances, and Result)
1. Conduct – the action that I take/thing I do
a) Act – must be conscious and volitional, exercise of will (voluntary act doctrine)
b) Omission – failure to act when law imposes a duty
c) Possession – type of act where having something is sufficient
2. Conduct requirements
a) Quantitative – enough of an action
b) Qualitative – acts of a certain quality/character (voluntary)
3. Rationale for Conduct Requirement
a) Evidentiary – evidence about the state of mind
b) Confirms dangerousness – separates daydreams from actions
c) Draws a line – gives people a warning/guidance of what you can/cannot do
CHAPTER 1: THE CRIMINAL ACT
I. THE CONDUCT REQUIREMENT
A. Conduct in some form – an act, omission, or possession – remains everywhere accepted as an essential prerequisite of criminal conviction and punishment.
B. Martin v. State – Drunken guy was dragged out of house by cops and charged with public drunkenness, not guilty because he was involuntarily taken to public place.
1. “An accusation of drunkenness in a designated public place cannot be established by proof that the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officer.
C. Settled doctrine requires not only that criminal liability be based on conduct, but also that the conduct be voluntary.
1. Voluntary Act: must result from an exercise of will. Note that the requirement is not that the exercise of will be free from pressure.
D. Generally accepted instances of involuntary conduct:
1. Physically Coerced Movement: A shoves B into C and thus knocks C into path of car
2. Reflex Movement: attacked by swarm of bees while driving car, causing accident
3. Muscular contraction or Paralysis Produced by Disease: person who has no control over limbs cannot act voluntarily with respect to their movements (stroke, epilepsy, etc.)
4. Unconsciousness: ranging from coma to normal sleep, cessation of most motor functions. Sleeping mother who rolls over her child and kills him, involuntary.
5. MPC § 2.01 – Involuntary Acts
E. Involuntary act embedded in an otherwise voluntary course of conduct?
1. Driver suffered epileptic seizure and ran over and killed several children.
a) Seizure was involuntary but she was liable for the negligent and voluntary act of driving a car with knowledge that she was subject to seizures.
2. MPC does not flatly preclude liability based on involuntary conduct; instead, it requires that liability be based on “conduct which includes” a voluntary act.
F. People v. Gastello – not guilty of bringing drugs into jail b/c he was taken there involuntarily
1. Entered jail only due to being arrested, he intentionally put the drugs in his pocket before he was arrested but did not engage in the voluntary act of bringing them into jail. He did nothing at all after police officers took custody of him (including telling them about drugs).
2. Court thought this case was controlled by Martin.
G. Voluntary acts: knowledge of condition; likelihood of occurrence; degree of warning; dangerousness of underlying activity; need for underlying activity
II. THE REQUIREMENT THAT OFFENSES BE PREVIOUSLY DEFINED
A. Rex v. Manley – woman made false allegations to police, charged with committing an act tending to the public mischief
1. “Indictment describes two ingredients of public mischief or prejudice to the community: officers were led to devote their time and services to the investigation of an idle charge AND members of the public were put in peril of suspicion or arrest.”
B. Today, Manley would be thought to violate the “principle of legality.”
1. Principle of Legality (POL): not a rule of law, more of a statement of an ideal. It forbids retroa
ve them from the common law, Texas doesn’t
B. Omission itself is not a crime unless the statute explicitly says there’s a duty to act
1. Difference between a legal duty (punishable by law if not performed) and a moral duty (not punishable by law)
2. MPC § 2.01 – Omission as Basis of Liability
C. Necessity of a Duty to Act
1. Problems arise where the offense in question does not expressly proscribe a particular omission or act, but covers any conduct that causes a forbidden result (i.e. homicide).
2. Most jurisdictions recognize that legal duties to act can be rooted in a contract or common law source, as well as in a statute. Chief categories of legal duties:
a) Duties based on statute
b) Duties based on relationship, such as that between parent and minor child (and in many cases, husband and wife)
c) Duties based on contract, such as employment responsibilities of a lifeguard
d) Duties based on voluntary assumption of responsibility that effectively precludes aid from others
D. People v. Oliver – case where woman picked up guy from the bar and left him in apt to die
1. Defendant argued she had no legal duty to the deceased. Court said that “she took him from a public place where other might have taken care to prevent him from injuring himself to a private place where she alone could provide such care” this means that she owed him a duty to prevent his death by calling for help.
E. Is withdrawal from life support an affirmative act or omission? Difference between withholding treatment and withdrawing treatment (once begun).
IV. POSSESSION
Possession may be thought of as a status that begins with the act of acquisition and continues by failure to divest. Alternatively, it may be viewed simply as an indirect way of proving the act of acquisition.
A. MPC § 2.01 – Possession is an act. Satisfies AR by “knowingly” possessing or securing object.
B. United States v. Nevils – possession requires knowledge of the object possessed and intent to control that object, mere proximity not enough
1. Nevils was found asleep on a couch with a firearm on his lap and another one leaning on his leg; drugs on the table. He testified that he had passed out and his friends had laid him on the couch. Apartment was vacant and many people had access to it. Woman who helped take Nevil there testified that when they left, there were no other people inside and no guns or drugs visible.
2. Court held that the undisputed fact that Nevils was asleep (or passed out) means that the fact that the firearms were toughing him is not sufficient to show that he was conscious of their presence. Circumstantial evidence of knowledge and intent to control falls short.
C. Constructive Possession: a person has constructive possession of an item when he knowingly holds the power and ability to exercise dominion and control over it. At law, a person with constructive possession stands in the same legal position as a person with actual possession.
1. Example – if someone steals your credit card number, the actual credit card never leaves your actual possession, but the person who has stolen the number does have constructive possession
2. Mere presence at a scene where contraband is found is not sufficient. Need to show dominion and control.
