Criminal Outline 2015 fall — Professor Moore
Why punish (purpose)
What makes a crime different from a civil matter is the condemnation of the community
Possible answers: General deter; Specific deter; Deserve; Rehabilitation; Incapacity; Social cohesion; Vengeance
1. Utilitarian: intrinsic good, good by itself
Bentham: happiness, felicific calculus, social welfare; maximize welfare; prevent more harm
2. Retribution: Evil against bigger evil (deserve, blameworthiness)
3. Rehabilitation (treat like disease): Nobody deserve punishment, it is disease, so society should not punish, but treat; redistribute resources; reeducation, make them better to society and themselves.
1. Rehabilitation as a theory of punishment
A. What kind of rehabilitative theory?
Disease need to be treated: for the security of the society and the flourish of the patient.
B. Three reasons not work: scarce resources distribution unapproved; paternalistic nature is suspicious; moral blindness
2. The pure utilitarian theory (net social gain)
A. Punishment actually prevents crime?
a. Deterrence? Many crimes are not crimes of calculation; peer pressure
b. Rehabilitation? (Quakers; no evidence treatment works)
c. Incapacitation? Cannot predict accurately who will recidivate; replacement phenomenon
B. Morality of the theory? (may punish innocent people)
3. The mixed theory of punishment (NSG (net social gain) + deserve, mixed, one is justification, the other one is condition) (drawback of both side)
A. Varieties
B. No reason for utilitarian reason to punish, but you still want to punish, that is deserve, so the mix theory broke down in this assumption because of one missing element
4. The retributive theory of punishment (deserve, proportionality principle)
A. Back door argument
B. Positive arguments
a. General principles
b. Particular intuitions
C. Some non-retributive arguments that look like retributivism
Increase certainty other than severity that deter the criminal
Conclusion:
1. Every society would punish
2. Utilitarian or Retributive or Mixed (just 3 theory)
3. No pure U
4. No mix
5. Could only pick Retributive (p96)
The general part of criminal law
Prima Facie
Actus Reus
The Voluntary Act Requirement
1. Not Involuntary Bodily Movements
A. Applications:
(1) No muscle movements at all
(2) Dumb muscle movement
(3) Intelligent muscle movement
Q1: Unconscious (no); Q2: hypnosis (generally no); Q3: sleep-walking (no); Q4: habit (voluntary);
Q5: Freudian slips; Q6: dreaming (no); Q7: brain washing (like hypnosis)
Act under duress is voluntary; Habit is voluntary (could do otherwise)
The Newton case (p207):
We don't punish bad character, only punish people choose to execute the bad character (bad actions)
Martin application P235
Martin is convicted of “being drunk on a public highway”. It turns out that he is arrested at home and taken out onto the road. He says that the statute implicitly requires him to voluntarily go to a public place while drunk.
There are three argument of brainwash: temporary insane; under duress; no voluntary action
B. Difference with mens rea?
Further mental state than the volition voluntary act.
C. Timing issues
Do not need to show every act, or last act, was voluntary; it’s sufficient there is a voluntary act
—court should focus on the relevant conduct (with MR) that actually and proximately caused the social harm of the offense charged. D. Three defenses for VA: Involuntary movement: Someone throws you through a window; (2) Voluntary act, but unintentional; Voluntary, intentional, but under duress
2. Not Mere thoughts or Intent:
7. Rob car; 6. Help—accomplice; 5. Try—–inchoate; 4. Can't find car to rob—preparation; 3. Agree—conspiracy (criminal contact); 2. Solicitation; 1. Think (only one that no liability)
3. No mere Status (Robinson doctrine)
Status; Disease; Compelled act/condition; Thoughts alone; Acts done outside their borders
Robinson (no punish for drug addiction); Powell (Majority: not for being a chronic alcoholic, but for being in public while drunk)
Possession: it's knowingly have it or control for sufficient period to terminate it——MPC 2.01 (4)
4. No omissions
if no civil legal duty, true omission, no crime (detail see Claire outline)
Why Anglo-American don’t have a system to punish no act to save others? (p234,235)
(1) Liberty (2) Line-drawing problems (3) Evidential of intent
Exceptions (1) Statute; (2) Contracts; (3) Relationships; (4) Undertaking; (5) Culpably cause peril; (6) Innocently cause peril
5. So in the end what is voluntary act? willed body movement
Omissions (handout)
Why should omissions not be punished
(1) Evidential of intent.; (2 ) Line-drawing problems; (3) Problem of multiple defendants; (4) Omitters more often make matters worse; (5) Omitters do not cause harm, no morally culpable; (6) Liberty
(7) Need for citizen repose.
Exceptions (pp. 228-235)
(1) Where a statute expressly punishes an omission. (MPC § 2.01(3) (a).
(2) Contractual undertaking.
(3) The relationship (“status”) exception (pp. 228-232)
Voluntary undertaking; Reliance by victim, or by others. (Division of labor); Moral duties to intimates that we do not happen to strangers.
(4) The culpable causing of the condition of peril. (pp. 232-235)
a. Time question: hold for act of causing, or omission to correct?
(5) The innocent causing of the condition of peril. (p. 233 n. 5)
Time question: can’t hold for innocent act of causing, only for the omission.
(6) The undertaking exception (Pope case, 219-222; no quit, exclude other people help, need to carry through)
Good Samaritan law, which require individuals to prevent harm if they can do so with no risk, could be convicted misdemeanor.
What is an Omission (Conceptual Question)? (pp. 235-241)
A. The description problem
Ep. Nurse gave patient have of the dose and the patient died, how to describe it: give half prescribed dose (act); did not give full dose (omission)
(1) Barber case (medical omission)
Consent of the patient, if he could not, the family member could consent as good will. So, the court conclude it has to be omission, or the doctor is murderer.
What about the intruder? Doctor stop
is no one accuracy, but our intuition guides us.
How court could apply case using foreseeability (hard to apply)?
a. You take the victim as you find him: Fragile situation, normally wouldn't die, but die, D's intervene (not foreseeable but liable)
b. Intervene second actor behavior:Hit to bleed, not fatal, but the doctor malpractice, the patient die (foreseeable but not liable)
B. Harm within the mental state
— MPC test (584-586) 2.03 (2) (3) (4) Ask if the harm happened was the thing that was intended.
(2) Intent; Know (3) Reckless; Negligence (4) Strict liability
MPC ask 4 questions separately (better than foreseeability do)
MPC test: harm within the mental state (4 types)
How close harm happened in order to be liable for intentional, knowing, reckless, negligence cause it.
C. Direct cause (common law test)
Any cause-in-fact where there is no intervening cause.
Intervening Cause: Negligence typically not intervening cause, can't break the cause chain.
(1) Has to be intervenes between defendant's act and the harm
(2) Causal significance–must be a cause itself
(3) Event, not states (pre-exist) or omissions (ep. failure to save).
(4) Independence of defendant's act
(5) One of the two types
(a) Free informed, voluntary act: Willed bodily movement; intentional reach the harm; not done under duress or necessity; done by a responsible agent
(b) Conjunction of abnormal natural events amounting to a coincidence (Acts of God; true coincident)
Rationale: only the last wrongdoer be punished; only the last wrongdoer actually causes the harm because his free action breaks the causal chain.
Apply:
Campbell (Homicide excludes the act of one person providing a weapon to another person who ultimately commits suicide.) — intervening cause
Kevorkian: Suicide machine, even the doctor made the killing possible, the patient killed themselves
Stephenson: The woman taking pills is not intervening cause b/c it failed the criteria of VA (duress).
Bailey: Duty of the police and self-defense, not intervene cause; the victim's shooting is not intervening cause either, so the Bailey's act is direct cause.
Root: Car race, victim die of two lanes crushed by a truck. D no intent to kill the victim, he is reckless, the victim reckless is an intervening act cause his dead, D have no liability
McFadden: The difference form Root is that the victim has no reckless act, he wasn't try to pass the D, not a reckless behavior, no intervening act, so the D's reckless act cause the death of the victim and the other people, should take responsible
