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Criminal Law
University of Kansas School of Law
Stacy, Thomas G.

CHAPTER 1: PURPOSE OF CRIMINAL PUNISHMENT
 
I. UTILITARIANISM/RETRIBUTIVISM
 
Must determine why some acts are criminal and others not.
For example, should we have a system of criminal punishment for defamation?  
-Utilitarianism: cost/benefit analysis of future consequences
          -yes: for specific and general deterrence
          -no: already have civil liability
-Retributionism: deserved punishment of rational judgment (autonomy & responsibility)
          -yes: the criminals intervene with autonomy of others
          -no: free speech as a mitigating circumstance
 
II. NECESSITY KILLING
 
Queen v. Dudley and Stephens (12)
-Four crewmen are stranded at sea
-after seven days without food or water, prisoners suggested they draw lots (custom of the sea) to sacrifice a crewman to be eaten by the others, Brooks did not agree.
-Dudley, w/ assistance from Stephens, cut the killed the cabin boy.
-crew was rescued later and charged w/ murder
HOLDING: Prisoners were guilty of murder and sentenced to death (served 6 mos.)
                             -The law does not endorse the necessity killing defense in this case                                        (slippery slope argument)
 
In Re A (15)
-Case of two newborn conjoined twins, Jodie and Mary
-Each was an individual, but they were joined at the hip
-Mary is the weaker twin; so, if doctors do not operate, both will die. If they do, Mary will die, but Jodie will live w/ 90+% chance of normal life
-hospital sought a declaration to operate, but the parents appealed against the order
HOLDING: For hospital. Necessity defense should be extended on a case by case basis and should apply to the case since there are conflicting duties to both patients.
 
Distinguish: In re A not likely to be a mistake since brought before a court before the action. No choice in who will die–>has to be Mary
 
 
 
 
 
 
 
          A.  SHOULD NECESSITY BE DEFENSE TO KILLING
                   Legal Issues:
                   Act?
                   Culpability? Intent to Kill?
 
                   ISSUE: Is necessity a defense to murder?
                   No statue–>common law decision- w/out statute, how does court decide?
                             1. reason by analogy: is killing here analogous to war, self-defense,                                                                             death penalty?
                             2. Consult objectives of criminal punishment
 
UTILITARIAN PERSPECTIVE:
for–>weigh which is better: one or four dead?
against–>kill one for body parts for organ transplants?–>this has to be wrong (you can get them from recently dead people)
3.) Utilitarian argument for murder in:
          -self-defense: keeps criminals from harming others
          -war: sacrifice a few for the many of the nation
          -death penalty: specific and general deterrence/net savings of life
          -voluntary passive euthanasia: eliminates hospital costs of keeping them alive
 
          Organ Harvesting
          Distinguish from Dudley–>usually get them from someone who is dead (Dudley                  didn’t          have an alternative)
          Distinguish from In re A–>taking no action will deprive one of autonomy
 
Coleridge’s Problems:
1. Who is to say if anyone should die? Arg for dudley: use objective approach
 
2. Who is to say who dies? Ut. Parker has no family, less chance of survival BUT     Parker is a kid with longer to live
          Ret: Dudley got them into the mess, doesn’t favor drawing lots,
 
Will law effect change in these situations? Arg. Probably not,
Slippery Slope: behavior might be ok but it might legitimize behavior that is not ok.
                             -mistakan belief that killing is necessary–>arg. Are there times when                                    killing really is necessary (what about that error)
Punishment: what is appropriate? Ut. For death v. 6 mo.
 
RETRIBUTIVIST PERSPECTIVE:
-right to autonomy usually prevails
-exception for a response to wrongful conduct (ie. War, self-defense)
 
Act/omission distinction: every choice would have been an intentional killing (inaction causes death too–>generally, people are not criminally liable for the results of inaction except for if a special duty to act exists (ie. Statute, contract, special relationship, voluntary assumption, creation of danger)
          -innocent baby on train tracks, train coming: leave it there certain that it will die =                         not criminally liable
          -lifeboat case: If Dudley didn’t act–> killing innocents by inaction is okay, BUT it                         is laudable to save innocents
-”no means principle” – using one person as a means to another’s end (violated in each each decision)
 
Selection of victim:
Dudley?–>he created the danger, responsibility to the crew
-Brooks? drawing lots = contractual consent to custom
-vertical limit, father says cut the line, son can’t infringe on his autonomy to do this
 
Penalty:
1.     Degree of Infringement: about one day of life
2.     Degree of Responsibility: mitigating circumstance–>other factors were responsible           (hunger etc.)
3.     Ret. And Ut. Are useful in arguing sentencing
 
Substantive Law: Many states recognize a general necessity defense if it is reasonable: subjective AND objective (destroy property to stop the spread of fire etc.), but some say that it does not apply to homicide cases. The Model Penal Code DOES extend it to homicide. 
 
Hypo: Would this apply as a defense to killing abortion doctors?–>NO. Are abortions a public harm which outweighs murder?–>abortion is legal. More doctors will take their places, abortions will be done anyway but not as safely (may injure the mothers). Retributivist = no shouldn’t kill. YES = These doctors are murdering people so one murder to stop many is a benefit.
 
 
 
III. THE WAR AGAINST DRUGS
 
Legalizing Drugs Makes Matters Worse-Wi

breathing machine and feeding tube
-family turns off feeding tube, family charged with murder
          -elements: intent to kill = (knowledge that victim will die due                                                                   to an act/omission)
                             act: yes; result: yes; causation: yes
ISSUES: which action do you use?: verbal instruction can be an act; written can be too
HOLDING: court says giving food through a tube is an “injection” (failure to give = omission)
          -even if an omission, is there a legal duty to act? –>contract
          -court says doctors have no obligation to provide futile treatment (when prognosis     is hopeless; provide no further benefit “in the eyes of the patient.”–>medical        decision based on the facts)
                   -consent is a defense for omissions (Schiavo) BUT
                   -NOT active euthanasia (Kevorkian)–>physician-assisted suicide okay                                 some places (patient medicates himself)
                   -premeditation doesn’t make this murder worse (shows thinking)
 
*Raposo* (accessory of daughter’s rape) (56)
-charged w/ being an accomplice to rape
-accomplice = didn’t commit act, but is still liable (godfather etc.)–>Raposo’s boyfriend did it, she didn’t act
-Act: did not satisfy–>omission; -special relationship doesn’t apply in this case b/c of interpretation of the accomplice liability statute is silent on omissions–>kind of funny b/c the common law says there is a duty
 
-Culpability (mens rea):
          purpose: must have some stake in the offense; Raposo doesn’t benefit, AND
          knowledge: she had practical certainty that rape would occur
                   – accomplice exception usually requires purpose (somejurisdictions in                         require only knowledge if it is a serious crime)
 
-Policy:      -should Raposo’s actions be criminal?–>yes, deterrence factor; no,                                       disincentive to report because fear of being held liable
                   -should punishment be the same as the principal??
          -HYPO
                   -prosecute mother if there child would go to institution? If there was a                         better grandmother to step in? –>effect on child is a factor to be considered                on a case by case basis?
          HYPO meth case: