Criminal Law
Ross
Fall 2013
I. Punishment
a. In General
i. no universally accepted, non-arbitrary definition
ii. Scholars: agent of the government, pursuant to authority granted to the agent by virtue of the defendant’s criminal conviction, intentionally inflicts pain on the (D) or otherwise causes (D) to suffer some consequence that is ordinarily considered to be unpleasant
1. ex: payment of a fine, court compelled public service, outpatient psychiatric care
2. non-ex: (outside the criminal justice system): disbarment of a lawyer by the licensing authority or actions of a lynch mob
iii. Line between punishment and civil remedies
1. Proceeding = civil then the result is not punishment
2. SCOTUS- classification of proceeding as civil is one of statutory construction
· Was the questioned law in the civil code rather than penal code?
· Not absolute- if remedial but also retributive or deterrant then it will be deemed punishment
b. Comparison of the 3 Major Theories
Utilitarian
Retributivism
Expressive
General Principles
· Consequentialism: justification of a practice depends only on its consequences
o Purpose of laws is to maximize the new happiness of society
o Law should exclude all painful or unpleasant events
· Pain inflicted by punishment is justifiable if and only if it is expected to result in a reduction in the pain of crime that would otherwise result.
o Ex: 5 units of pain to reduce 7 units of injustice
· Punishment is justified when it is deserved
o Wrongdoer freely chooses to violate society’s rules
· Wrongdoer should be punished whether or not it will reduce crime
· Punishment is justified as a means of expressing society’s condemnation and relative seriousness of the crime.
· Hybrid of sophisticated aspects of utilitarianism and vindication retributivism
Rationale
Person contemplating criminal activity will balance expected benefits against risk of being caught and convicted- will avoid behaviors which the bad will outweigh the potential benefits
Morally fitting that an offender should suffer in proportion to his desert or culpable wrongdoing.
· Educative: tell individuals what conduct is improper and we value victims
· Retributive: form of moral condemnation
Forms
General Deterrence
· D is punished to convince the general community to forego criminal conduct in the future
· Lesson to the rest of society
o Teaches what conduct is impermissible
o instills fear of punishment in would be violators
Assaultive Retributivism/Public Vengeance/Societal Retaliation
· criminal has harmed society, society can “hurt him back”
· deters private vengeance if the crim. Justice system takes care of it
o little bit utili. b/c looking to punish for the greater good
Individual Deterrence
· D’s punishment meant to deter D’s future misconduct by intimidation
· “scare him straight”
Protective Retribution
· punishment is a means of securing a moral balance
· Everyone shares burdens and benefits- a crime has the benefits of the system of rules, without accepting the same burdens.
· Punishment restores equal to the debt owed.
Incapacitation
· D’s imprisonment prevents him from committing crimes in the outside society during period of segregation
Victim vindication
· Punishment is a way to right a wrong.
· Wrongdoer elevates himself w/ respect to others- punishment levels the playing field.
· “makes things even” if punishment is proportional to the offense
Rehabilitation (non-classical)
· Reduce future crimes
· Preferred because uses the system to reform the wrongdoer (academic training, psychiatric care), rather than secure compliance via fear
Viewpoint
· Look forward in time, do not advocate punishment unless it will provide overall social benefit
· People are generally hedonistic and rational
· Looks back in time and justifies punishment solely on the basis of the previous, voluntary commission of crime
· Human posess free will and choice, must be blamed with then violate social mores
Criticisms
Deterrence (1)
· Justifies using persons solely as a means to an end
· Punished individual is an instrument for the improvement of society
Response:
Everyone has the right to have the law used to benefit the whole society, (D) therefore benefits from his own punishment
General
· Intentional Infliction of Pain through punishment is senseless and cruel if it does no good
o Society’s goal should be to reduce overall human suffering
Response: once a crime is committed and the wrongdoer is deemed morally responsible, a proportional response is always right
Deterrence (2)
· Could justify punishment of innocent
· Rape of a white woman, frame a black man to prevent rioting hyop
Response:
· Don’t deny theoretical possibility, real world it would never happen
· Other bigger issues to be taken into acct. that wouldn’t allow innocent man framing
· Only valid in terms of act utilitarian (immediate action), not rule (look at how it applies to the whole community
General (2)
· Glorifies anger and legitimizes hatred
· Directly conflicts with supposed respect for the rights of all persons
Response: Such an observation, if at all valid, applies only to the assaultive form
Rehabilitation
· Why reform if everything else has failed
· Removes just deserts- looks only at a cure
Response:
· It will work if society commits the necessary resources
· Prevents concept of redemption
General (3)
· Irrational, because founded on emotions such as anger rather than reason
Response: emotion can have moral content, anger demos awareness that criminal has violated our rights and deserves punishment
c. Mixed Theories of Punishment- Our Criminal Justice System
i. Exclusively preventive (util) vs. exclusively punish (retrib) look very different
ii. US Criminal Law is philosophically inconsistent
1. Some rules are util others are retrib (strict liability)
2. Why
· Because each has dominated intellectual thought at different times
· Courts and legislatures find each to be attractive
· Failure of lawmakers to attend to the conflicting theories
iii. Scholars Advocate a mixed system
1. Want to ask 2 different questions:
· What is the general justifying aim of the criminal law?
i. Purpose to punish (Retrib) OR
ii. Prevent the crimes in the first place (util)
· Who should be held responsible for their actions and how much is appropriate for those who are responsible?
i. Punishment should be proportional to the conduct
1. Retrib. can not identify a precise number, give a range and apply util. principles to see where the individual falls in the range
2. Person can argue:
· General aim should be to deter unwanted behavior BUT
· Apply retrib. “just deserts” in determining whether or how much to punish
d. Sentencing
i. Traditional
1. Crim codes give prison terms for noncapital felony (can also include monetary fine or a combination)
2. Altern
· Involuntary is no act at all- most use MPC definitions to distinguish
iii. An must be illegal to constitute a crime
e. Voluntary vs. involuntary actions
i. a person is not guilty of an offense, unless his conduct “includes a voluntary act or the omission to perform an act of which he is physically capable.”
1. At CL not in statutes, implicit requirement
2. Some states have a general provision similar to the MPC
ii. Broad meaning: used in defenses
1. General conclusion that (D) lacked sufficient free will to be blamed
· Ex: performing an action an gunpoint- (actually duress)
· In terms of actus reus- action still happened, must prove under other defense
iii. Narrow Meaning: used in actus reus
Elements:
1. Movement of the body which follows our volition
2. Willed contraction of a muscle: a voluntary act involves the use of human mind; an involuntary act involves the use of the human brain, without the aid of the mind.
Ex: reflexive actions, spasms, epileptic seizures, and bodily movements which unconscious or asleep
3. At the edges:
· Hypnotism
i. Might be equated to sleepwalker whose acts are considered legally involuntary
ii. Could be seen not to be absolved, because pulled trigger/stabbed/committed act- tough to differentiate between weak willed and someone under hypnosis
· Multiple Personality
i. Court doesn’t care which personality committed the act- someone willfully did it, will punish even if not currently occupying offending personality
f. Rationale for Voluntaryness Requirement
i. Utilitarian Not enough
1. Can not deter involuntary action, but can persuade to seek help for the behavior
2. If persistent threat- then therapy or commitment- segregate to protect public
The utilitarian explanation is not enough: the threat of punishment cannot deter a person while he is acting involuntarily.
ii. Retributivist
1. Based on idea that crim. Law carries stigma or blameworthiness
2. Condemnation should only be imposed on those who deserve it
· Those acting as a result of free choice
g. Relationship to Mens Rea
i. Can have voluntary act but no mens rea
1. Ex: person wanders in front of target and gets wounded by the shot of another
ii. Involuntary act w/ mens rea
1. Ex: man wants dead gf, plots it out, but she drowns accidentally
h. Burden of Proof
i. Involuntariness often described as a defense BUT involuntary cannot apply to
ii. Actus reus is a req. part of the crime and must be proved by the prosecution
1. Procedural significance: government must prove beyond reasonable doubt that every element is satisfied, including the voluntary action
iii. Time Framing:
1. Voluntariness doesn’t apply to all acts or the last act, merely 1 act in the chain must be voluntary
2. Broad vs. Narrow Time Frame Construction
· Broad allows court to examine more actions and therefore find a voluntary action to hold the (D) culpable
· Narrow allows court to examine fewer actions and thus not find a voluntary action
3. Time Frame Construction avoided if rule of criminal responsibility is stated
· A person is not guilty of an offense unless her conduct which must include a voluntary act and which must be accompanied by a culpable state of mind (mens rea) is the actual and proximate cause of the social harm, as proscribed by the offense
