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

Criminal Law Outline
Tom Stacy Fall 2013, Introduction to Criminal Law
Chapter 1: Purposes of Criminal Punishment
I.                   Introduction
a.       Utilitarianism
                                                              i.      Focuses on the future consequences of criminal punishment
                                                            ii.      Utilitarians identify at least 4 potential benefits of criminal punishment
1.      Specific deterrence
a.       When punishment deters that specific individual from committing criminal acts in the future.
2.      General deterrence
a.       When punishment deters other similarly situated individuals from committing the same or similar acts in the future
3.      Incapacitation
a.       The effect that incarceration or the death penalty has on preventing individuals from committing offenses
4.      Rehabilitation
a.       Punishments possible effect of reforming offender so they don’t commit similar acts in the future
                                                          iii.      Utilitarians weigh the potential benefits outlined above against costs and then compare them to the cost/benefits of alternative approaches.
                                                          iv.      Does not provide obvious answers but rather a structured analysis and identifies relevant considerations.
b.      Retributivism
                                                              i.      Criminal punishment is justified not by future consequences but because offender deserves punishment as a matter of rational justice.
1.      “just deserts” v. maximizing benefits over costs
                                                            ii.      Derive from philosophy of Kant
1.      The dignity and personhood of individuals is defined by their capacity to make rational choices about how to order their lives.
2.      Rational autonomy must be respected insofar as its compatibility with that same, specific right of others.
a.       One person’s autonomy then cannot be compromised or restricted by promoting the social good.
b.      One person should never be used simply as a means to an end for another.
                                                          iii.      Application to Criminal Law
1.      Criminal punishment must be proportionate to the gravity of the offender’s wrong.
a.       Not to impinge on offender’s autonomy too harshly even if it has great deterrence
b.      Not to be punished too lightly even if proportionate punishment comes at a high cost
                                                                                                                                      i.      Aka execute the last human being on earth if he was a murderer.
2.      Gravity of the wrong depends partly upon the degree in which it impinges on another’s rational autonomy
3.      Gravity of the wrong also depends upon the degree to which the offender is responsible for infringing on another’s autonomy
a.       Voluntary acts deserve more punishment while involuntary acts do not deserve punishment at all typically.
                                                                                                                                      i.      Example: a person deserves no punishment if they break someone’s arm in a uncontrollable epileptic seizure
4.      Gravity of the wrong depends upon a person’s character
a.       An otherwise spotless background lets us infer that it is an isolated incident and a product of an impulse over which offender has reduced control.
b.      A past filled with criminal acts increase probability the offense resulted from deliberate of conscious choice.
c.       Analysis: Utilitarianism v. Retributivism
                                                              i.      Some common ground
1.      Intentional acts both require greater punishment: for utilitarians it is because intentional actors are more likely to factor in punishments when making their decisions and creates a greater need for incapacitation. For retributivists intentional acts are more deserving of punishment due to their greater moral responsibility for the consequences resulting.
                                                            ii.      Differences
1.      Role of publicity: high profile case would have greater deterrence effect, should it lead to harsher punishment?
2.      Should a punishment’s harshness stem from the probability that others are getting away with that same crime or be dependent solely on that offender’s act?
a.       Auto theft example
II.                Necessity Killing
a.       Can necessity excuse or justify a killing that otherwise satisfies all the elements of intentional murder? Some jurisdictions hold that the defense cannot apply when person(s) brought on the situation which requires the choice
                                                              i.      Dudley/Stephens Lifeboat Case
                                                            ii.      Conjoined Twins Case
                                                          iii.      Cheney Authorizing Plane Shot down
                                                          iv.      Touching the Void
b.      Kansas Statutes provide that necessity is not a defense to murder or voluntary manslaughter but can be for other crimes, provided that the person did not create of place themselves in that situation. Instead it’s a defense of compulsion.
c.       The MPC does recognize necessity defense, and extends it to murder but retains the limit to the defense in cases of self-imposed choices.
d.      How would utilitarians/retributivists weigh the choices found in the above cases? Can they each reach the same conclusion based on their admittedly different philosophies?
                                                              i.      Very few people think killing is always wrong regardless of the circumstances. Even Kantian’s see self-defense, war and the death penalty through this lens. In some situations like in Dudley or the conjoined twins case, it’s inevitable that the “no means” principle will be violated in some way.
Chapter 2: Basic Principles of Criminal Liability
I.                   Elements of Criminal Liability
a.      Most Offenses require at least 2 elements, but not always
                                                              i.      An act or in special circumstances an omission
1.      traditionally known as the “actus reus” of the offense
                                                            ii.      Culpability
1.      Often known as the “mens rea” or guilty mind
2.      Often it involves an inquiry into the offender’s subjective mental state but not always. Negligence for example only involves an objective assessment of what a reasonable person would do or believe in the circumstance.
3.      In strict liability offenses, culpability is not required.
b.      Many offenses have additional elements
                                                              i.      Attendant circumstances
                                                            ii.      “Selling drugs within 1000 feet of a school” first part is act second is the attending circumstance.
                                                          iii.      Result and Causation
1.      Homicide for example requires a causal link between the act and a subsequent result.
2.      To summarize: ALL offenses require an act element. Many require culpability or a “mens rea” element. Many offenses have attendant circumstances and some require a proscribed result and causation.
II.                The Act Requirement
a.      Voluntariness
                                                              i.      To establish criminal liability, the act must be voluntary. The MPC defines acts that are not voluntary as:
1.      reflex or convulsion
2.      bodily movement during unconsciousness or sleep
3.      conduct during hypnosis (not widely followed)
4.      Movement that is not a product of effort or determination either conscious or habitual.
b.      Acts and Omissions
                                                              i.      Statute: A statute may impo

a common law crime that is mala en se and conviction of offense besmirches D and the crime is serious.
                                                                                                                                    ii.      The worse the crime, the higher culpability is required.
b.      Uphold strict liability where:
c.       The statute defines public welfare or regulatory offense (malum prohibitum) AND
d.      No great stigma attaches to D upon conviction of the offense.
4.      Canons of Construction
5.      Statutory Text and Legislative Intent (typically useless though)
                                                          iv.      Arguments for strict liability
1.      Increase deterrence
2.      Alleviate difficulty in proving intent, subjective state of mind or even negligence
3.      Eliminate the “I might be stupid but I am not a criminal” defense
                                                            v.      Arguments against strict liability
1.      Criminal punishment should be reserved for conduct that deserves moral disgrace or shame
2.      Deterring conduct that the actor does not believe is wrong or does not even involve negligence is nonsensical
3.      For conduct not involving moral disgrace or shame, civil punishment is more appropriate
e.       Mistake in Fact
                                                              i.      A mistake in fact is a defense where it negates the state of mind or culpability required with respect to the material element of the offense. But cannot be a defense for strict liability crimes.
                                                            ii.      Some jurisdictions distinguish between reasonable and unreasonable mistakes of fact. In these jurisdictions an unreasonable mistake in fact will only negate a “specific intent” the offense requires but not a general intent.
1.      Unreasonable mistake in fact is one a reasonable person would not make in the same circumstances.
f.       General vs. Specific Intent
                                                              i.      General Intent vs. Specific Intent. The case law in many jurisdictions, including Kansas, distinguishes between culpability requirements that constitute a “general intent” and those that constitute a “specific intent.”
                                                            ii.      Approaches to determining General v. Specific Intent
1.      Mechanical Rules
a.       Reckless or negligent crimes are general intent offenses.
b.      Purposeful and/or premeditated crimes are specific intent crimes.
c.       2nd degree murder is typically a general intent crime, though Kansas does not follow this treatment. The KSC has held that 2nd degree unpremeditated murder is a specific intent.
d.      Burglary requires the specific intent to commit a felony inside the dwelling or structure that is broken into and entered. Voluntary intoxication is thus admissible to show he lacked the specific intent to commit that felony inside but won’t be a defense for the general intent element of breaking and entering.
e.       Attempt liability requires the specific intent to commit the attempted crime.
f.       Accomplice liability requires the specific intent to facilitate the principal in committing the offense