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

I.              Underlying Criminal Law Theories
a.     Legality Principle – No crime without a clear, precise law
                                          i.    Two Doctrines:
1.     Void for Vagueness: Statute can be unconstitutional if it is not clear and precise on what is prohibited – comes from 5th amendment – has to be clear legal process
2.     Ex Post Facto: Every law that makes an action done before the passing of the law and which was innocent when done, criminal; and punishes such action is invalidated
b.    Theories of Punishment (most states have hybrid systems of punishment)
                                          i.    Utilitarian Theory – goal is to prevent or reduce future crime (avoid harm to victims and societal costs of crime); cost-efficiency 
                                        ii.    Utilitarian Theory Mechanisms:
1.     General Deterrence – punish one to deter potential offenders from crime
2.     Special (individual) Deterrence – punish offender to deter that offender from committing future crimes
3.     Incapacitation – physically stop the future crimes of the offender for a specified period
4.     Rehabilitation – avoid future crimes by reforming the offender – have to think about what you are trying to change in them and whether it is behavior that can be rehabilitated
                                       iii.    Retributivist Theory – goal is to give the offender his/her just deserts; punished bec. you deserve it, and not bec. of any beneficial societal consequence
1.     Just Deserts – the sole criterion for punishment is the actor’s moral desert; only punish the blameworthy and only according to the degree of blameworthiness (means some people even if they commit a wrong act – they aren’t blameworthy ex.) mentally ill)
2.     Unfair Advantage – those who break the law gain an unfair advantage over those who have allowed themselves to be constrained by the law
                                       iv.    Section 1.02 of MPC – shows how the system is a hybrid of all the theories above – pg. 973
c.     Causation:
                                          i.    “But for” (Factual) Cause – but for the actor’s conduct, would the outcome have occurred
                                        ii.    Proximate (Legal) Cause – How closely related to the conduct was the outcome?
1.     More of a judgment call on whether it was too far removed.
2.     Foreseeability – not just that the result was foreseeable, but in the way that it happened.
3.     What happens when you cause someone else to cause the result?
a.     The farther away you move the factual actor away; the 1st actor starts to look less like they caused the harm.
b.    Thought is that when you “cause” someone to do harm, everyone has independent will to make their own decisions.
c.     Typically don’t believe that anyone can be “made” to do something.
4.     Intervening Cause:
a.     Example: You want to kill someone, but so do other people – someone else stabs them, the victim falls and your bullet misses.
b.    Omissions can never break the chain – need another action to break the chain.
d.    Daughter’s Mustard Problem:
–          Three daughters – all have individual reasons for wanting to kill mother
–          Devon – thinks she needs to be taken out of her misery – switches mustard out for poison
–          Fina – wants the money – had already laced the mustard that Devon switched out
–          Erie – thinks mom is a dog who is trying to kill her (keeps feeding mom mustard which she thinks is poison)
–          How do theories of punishment apply to this case?
Erie (mentally ill)
Fina ($$$)
General Deterrence
Y – just want to stop people from killing other people – even if they couldn’t actually do it
Special Deterrence
No – individual ca

a.     Always guilty no matter the circumstances
b.    IMPUTATION – conditions under which an actor will be held liable even though she does not satisfy the elements of the offense
                                          i.    Conduct can be imputed
1.     Accomplice liability – not an offense, its imputation, conduct is imputed because they are deemed to be an accomplice
a.     Common Law Approach: 
                                                                                          i.    Accomplice liability derives from the principal’s liability
·         Have to start with some liability from the principal – kind of a reversed vicarious liability – person assisting is liable bec. of principal’s liability
                                                                                         ii.    The accomplice has to actually assist the principal – doesn’t have to be substantial or necessary for completion of the offense, only has to make it easier for him/her – could be encouragement
                                                                                        iii.    The principal has to actually commit the offense – since it is derivative.
                                                                                        iv.    Principal also had to be found liable for the accomplice to be held liable as well (early common law) – used to work if principal got off, then also accomplice
                                                                                         v.    Have to be intending to assist.