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Criminal Law
University of Kansas School of Law
Jefferson Exum, Jelani

Criminal Law- Sp 2009- Exum
Theories of Punishment
Justifying punishment
1)      Retributive Justification: violators deserve punishment for their wrong doing
2)      Utilitarian Justification: beneficial consequence of avoiding future crime
1)      General: Aim to deter other potential offenders
2)      Special: Aim to deter the offender at hand
a.       Incapacitation: making it impossible for the offender to commit the crime again
b.      Rehabilitation: takes away the desire or need to commit the criminal conduct
c.       Deontological Desert: person is punished strictly according to the degree of their blameworthiness
d.      Empirical Desert: punishment based on the community’s shared intuition of justice
-purpose for deserts: avoiding vigilantism, avoiding the resistance produced by a system that is seen as doing injustice, using stigmatization, role in shaping societal norms
Offense: Elements that define the crime
Conduct (Actus Rea): what the actor does
Act: voluntary
o   Intangible Acts: an act that doesn’t require muscular mvmt (agreement, command)
o   Omission: failure to perform a legal duty of which one is capable of
1)      Special relationship
2)      K
3)      Agent caused the danger
4)      Undertaking: began to give assistance, but quit without making reasonable attempt
o   Possession: when possessor knowingly procures or receives the thing possessed or was aware of his control thereof for long enough to terminate possession
Act Requirement: excludes thoughts, fantasies and irresolute intentions and limits liability to those who have externalized willingness to commit a crime
Culpability (Mens Rea): State of Mind
            General Intent: when the actor desired to commit the act, but not necessarily the outcome
            Specific Intent: when actor desired to commit the act to bring about a specific outcome
            Reckless or Negligent: didn’t intend outcome
·         Culpability Requirements:actor must have purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life (not actually necessarily a state of mind)
·         Cul

ut unaware that the conduct is criminal
Specific Intent Defenses: defense only if it was an “honest mistake”, must be “unreasonable”-negligent or reckless (see below).
Strict liability:  no mistake provides defense
Levels of mistake
§ Reckless Mistake (worse)
·         Actor is aware of a substantial risk that the required circumstances exists
·         Where recklessness is requires, a negligent mistake is a defense (reckless mistake not)
·         Negating recklessness: Actor will have to show that mistake is reasonable or negligent.
§ Negligent Mistake
·         Actor is unaware of a substantial risk that the required circumstance exists, but a reasonable person would have been aware
§ Reasonable/Faultless Mistake (general mistake)
·         Actor is unaware of the circumstances, and there is no reason for the actor to have been aware