Criminal Law
Prof. Ghachem – Spring 2013
Part One: The Boundaries of Criminal Law
1. Structure & Process; intro to the Model Penal Code (CB 1-19; MPC: 1191-1196) – 1/15
A. The Structure of the Criminal Justice System
· Generally: criminal justice system enforces standards of conduct.
· “Players” in the systems are highly independent of one another:
STATE
FED
Police
“Special” agents for enforcement agencies [FBI, DEA, ICE, etc.]
Prosecutor
U.S. Attorneys
Court / judges (many are elected, so concern about objectivity)
Independent judges who sit for life (concern about stodginess)
Correctional agency
Correctional agency
· Delivery is decentralized, uncoordinated, overlapping in nature.
2. What is Guilt? / How to Prove a Criminal Case (CB 31-47) – 1/17
A. Proof Beyond a Reasonable Doubt
ð In re Winship
· Allocating the Burden of Proof
ð Patterson v. New York
o Jeffries, on defenses, presumptions, and burdens of proof in criminal law:
· Presumptions
3. Civil v. Criminal Liability; Why Punish? (CB 80-100, MPC 1.04-1.05) – 1/22
4. Why Punish? (Cont’d) (CB 100-124, 190-195) – 1/24
A. On Civil Sanctions
B. Probing the Basis for Punishment: A Classic Case
ð Regina v. Dudley & Stephens
1) FACTS: Four men trapped on boat at sea w/ little food. Captain Dudley and his first mate Stevens decided to kill Parker the cabin boy and eat him to save the rest of them. Brooks did not assent. Dudley and Stevens charged w/ murder, but sentences to death are commuted to 6 mos.
ü Case presents intro to major issues of criminal law à mens rea, actus reus, causation (would boat maker be negligent?), parties (accomplice / conspiratorial liability), grading of offenses, category of offenses, sentencing, systemic issues & policy issues
C. Why Punish?
ð SUPPLEMENTAL: Rachel Aviv, “The Science of Sex Abuse”
i. Utilitarianism
· Bentham, intro to principles of morals & litigation:
· Bentham, on principles of penal law:
ii. Retribution
· Kant, on the philosophy of law:
· Moore, on the moral worth of retribution:
· Morris, on guilt and innocence:
· Murphy, on Marxism & retribution:
· Hampton, on correcting harms v. righting wrongs: the goal of retribution:
· Mackie, on retribution – a test case for ethical objectivity:
iii. “Cousins” of Retribution
· Retaliation and vengeance
o Stephen, on a history of the criminal law of England:
ð PROBLEM: Unexpected harm
ð PROBLEM: Victim impact statements
· Social cohesion
o Hart, on punishment and responsibility
o Durkheim, on the division of labor in society
o Stephen, on a history of the criminal law of England, REDUX
iv. Mixed Theories
· Questioning the classic mixed theory
o Moore, on law and psychiatry
· Statutory solutions
o MPC §1.02(2)
o NY Penal Law §1.05
o CA Penal Code §1170
o New MPC approach?
v. The Complexities of Crime Control
· Deterrence
o Wilson, on thinking about crime
o Robinson, on the role of deterrence in the formulation of criminal code rules
· Rehabilitation
o Vitiello, on reconsidering rehabilitation
o Moore, on law & psychiatry, REDUX
o The rise and fall of the medical model
o Does rehabilitation work?
o Hirsch, on should penal rehabilitation be revived?
· Incapacitation
o Zimring, on incapacitation – penal confinement & restraint of crime
o DiIulio, prisons are a bargain by any measure
5. Jan. 29: Ultimate Punishment (CB 557-569; oral argument in McKleskey v. Kemp) – 1/29
A. The Death Penalty
ð McCleskey v. Kemp: Petitioner was convicted of robbery & murder. In appealing his capital sentence, he brought forth a study to show that his Eighth and Fourteenth Amendment rights had been violated b/c he was black. SCOTUS was unpersuaded by ∆’s argument based on the Baldus study.
∆first argued that Georgia law violated the Equal Protection Clause. “[T]o prevail under the Equal Protection Clause, ∆ must prove that the decisionmakers in his case acted with discriminatory purpose.” His sole evidence of a discriminatory purpose was the Baldus study – problem with coming up with actual discrimination against the ∆.
RULE: “It is the ultimate duty of court to determine on a case-by-case basis whether [the] laws [of the states] are applied consistently with the Constitution.”
o Court finds that is we find that you are right, this would undermine the discretion that is a key element of our criminal justice system.
o Unconscious / implicit racism does not enable a ∆ to come forward with evidence that a jury specifically discriminated against him in the particular instance
o Also, what is the remedy? Unfortunately, ∆ attorney did not suggest a remedy. Do you kill more white ∆s? Do we limit the capital punishment to only a class of crimes, but make the judgment consistent (like a blanket)? SCOTUS did not reach this Q.
o In asking the Court to consider historical discrimination, how far back do we ask the Court to go?
o Federal appellate habeas practice may extend the execution 10, 20, 30 years – is this in effect a de facto abolition of capital punishment?
o Check out a gender correlate in Shatz’ “Chivalry is Not Dead”
o Also consider the rule that we cannot execute a ∆ who by mental defect cannot appreciate the fact that he is being killed. What is the value? Not specific deterrence to ∆, b/c no opp’y for future conduct. Maybe deterrence to society, but this does not seem to hinge on the ∆’s appreciation of his punishment. Not incapacitation (prevent , b/c also does not matter if ∆ is mentally ill; he will be incapacitated. What about retribution (as vengeance, or as inflicting a punishment that allows the ∆ to appreciate that he defied a social value such that he should be executed)? Here, the latter makes the most sense in an Old-Testament moralizing way.
Part Two: Elements of the Offense
6. The Criminal Act (CB 205-222, 226 note 1, 232 note 4-239) – 1/31
A. Actus Reus – Culpable Conduct – commission of some voluntary act that is prohibited by law.
Problematic areas in determining actus reus:
o ∆ commits NO PHYSICAL ACT, but rather had “guilty” thoughts, words, state of possession, or status;
§ Mere thoughts ≠A.R.
§ Mere possession can = A.R. (drugs), but almost always requires SCIENTER
o ∆ does an INVOLUNTARY act;
§ Reflux / convulsion ≠A.R.
§ Acts committed while unconscious ≠A.R. (rare)
§ Acts committed under hypnosis USUALLY ≠A.R., but in some jurisdictions that don’t follow the M.P.C., ∆ can be held liable
§ Self-induced states may DEPRIVE ∆ of “involuntariness” defense and = A.R. (earlier voluntary act, ie., choosing to drive when ∆ knows he has a tendency to seize)
o ∆ has an OMISSION (failure to act)
§ Generally, failure to act ≠A.R. (not act to save drowning man, even if easily could have), UNLESS there is a “special legal duty to act.”
~ If this happens, ∆’s act may be punishable even if statute frames A.R. in terms of an affirmative act.
§ STATUTORY scheme imposes a duty to care
§ ∆ + V have a “SPECIAL RELATIONSHIP” (usually a close blood relationship) ≠A.R.
~ Failing to intervene to prevent child abuse; failing to provide necessities of life
§ Where a CONTRACT (K) creates a legal duty to act ≠A.R.
§ ∆ CREATES THE CONDITION (danger) that harms (even innocently) ≠A.R.
§ ∆ UNDERTAKES to give assistance can ≠A.R., especial
o Can the law base a finding of liability on social custom, or only as defined by law?
o What about voluntariness? How does a person’s mental / physical situation excuse you from conduct?
o Kleinig, on good samaritanism:
o On the duties of a bystander: some critics believe that “duty to care” laws create a perverse incentive NOT to act.
o On the duties triggered by special circumstances
o On possession as an act: (constructive possession is an element of drug laws). This can raise an issue as to whether the A.R. element of a statute can be satisfied (i.e., the drugs are within your control but not on your person). Most courts say that you have to have awareness that the drugs are in the house. However, some courts have a very harsh interpretation and do not require awareness (see p. 235, State v. Bradshaw – but this is an “outlier” case).
· Distinguishing Omissions from Acts
ð Barber v. Superior Court: Two physicians were charged with murder and conspiracy charges after discontinuing treatment of a comatose patient at the request of the deceased’s family, where there was virtually no chance of recovery. (Patient had a heart attack following surgery.) Question on appeal (following Sup. Ct.’s setting aside lower court’s dismissal of the case and reinstatement of complaint): Is a physician under a duty to continue treatment of a comatose patient once such treatment has proven to be ineffective such that he/she can be held liable for murder?
RULE: A physician’s failure to continue treatment of a comatose patient at the request of the patient’s family is not an unlawful failure to perform a legal duty and ∴ is not punishable under the penal code.
ð Airedale NHS Trust v. Bland: Bland was injured and is in a vegetative state (can breathe, but nothing else). Parents determined he would not want this life, and asked docs to remove his feeding tube & put an end to his life. The lower courts allowed the removal; guardian appealed. Issue on appeal: Can life support be withdrawn from a patient who cannot give informed consent about the matter?
RULE: Treatment that is necessary to sustain life can be withdrawn from a patient who cannot give informed consent IF withdrawal is seen as being in the best interests of the patient. Doctors are not under a duty to administer treatment to keep someone alive at all costs, if the required treatment is very invasive.
ð Cruzan v. Director, Missouri Dept. of Public Health: SCOTUS upheld a MO court’s determination that nutrition and hydration could be withdrawn from a vegetative patient, causing the end of her life, based upon π’s statement to a housemate at age 25 that she would not want to be kept alive unless she could live halfway normally. Case illustrates the slim difference between “killing” (often termed “action” by the courts) and “letting die” (often termed “inaction” or “omission where there was no legal duty to act”).
RULE: Where there is clear and convincing evidence of the patients wishes NOT to be kept alive, individuals have a constitutional right to refuse unwanted medical treatment [even patients in a permanent vegetative state].
