Exam advice
Step 1. Look to text of question to see if it requires applying a particular law or MPC section.
Step 2. See if there are made-up statutes provided in the question.
Step 3. If no statutes provided or not relevant to major issues, look to the general principles of criminal law.
General principles of criminal law
Holdings or reasoning of cases in casebook
Common law
Contemporary majority and minority rules cited in text or class
MPC (if assigned or referred to in class)
Purposes of punishment
Broad purposes of the criminal law
To determine criminal liability
Is it a crime at all?
How serious is the crime?
To impose sentencing
What are the purposes of punishment?
What sentencing methods best achieve the purposes?
I. Elements of crimes and defenses
Three major elements:
Actus reus (objective offense elements)
Acts by D or others (accomplices, coconspirators) [can also be an omission] Causation of a prohibited result or harm [not always required] Attendant circumstances [i.e. no permission to enter for burglary]
Mens rea (subjective offense elements)
D’s “intent,” reckless disregard for known risk, or mental state, or lack of awareness of risk.
Under MPC, there are four categories:
i. Purposeful
ii. Knowing
iii. Reckless
iv. Negligent
Elements of affirmative defenses, if they apply.
In many cases, do not apply
If applies and is successful, D is not guilty even though has requisite actus reus and mens rea.
Fall into two categories, “justifications” and “excuses”
Relationship between actus reus and mens rea:
Under the modern view and MPC, a mens rea is specified or implied for each element of the actus reus.
Different MR may apply to each AR element.
Burdens of proof
In Re Winship: Constitutional Due Process requires proving all AR and MR elements beyond a reasonable doubt.
Evidence that negates (raises reasonable doubt) about AR or MR element is a “negative defense” or “failure of proof.”
Prosecution is not required to disprove affirmative defenses beyond a reasonable doubt.
D may be required to prove affirmative defenses by a preponderance of the evidence or by clear and convincing evidence.
Under the MPC, prosecutorial disproof of affirmative defenses beyond a reasonable doubt is required for most ADs once there is evidence support the defense.
II. Purposes and Limitations of Punishment
General purposes of punishment
Non-utilitarian
i. Retribution: Give D his “just deserts”
Utilitarian
Deterrence: Prevent crime by fear of punishment
i. General: Deter other would-be offenders
ii. Specific (or “individual/special”): Deter this offender
Rehabilitation: Change D to remove causes of crime.
Incapacitation: Lock up D to prevent crimes.
Other: Expressive values, restorative justice
Retribution
How is “desert” measured?
Severity of the harms caused or threatened.
D’s degree of culpability, measured by:
i. Mens rea (purposeful worse than negligent, etc.)
ii. Motives (hired killing vs. mercy killing)
iii. D’s capacity to obey the law (mental illness, etc.)
iv. D’s role in the offense (for multi-defendant crimes)
How is desert tied to fairness?
Fairness to victim
Fairness to people who obeyed law
Fairness to other equally-culpable offenders.
i. Goal of uniformity/equality states that similarly situated offenders should get similar punishments.
ii. Utilitarians: similarly situated means Ds have equal need for measures designed to achieve deterrence, rehabilitation, or incapacitation.
iii. Retributivists: Two Ds similarly situated when equally deserving punishment.
Fairness to D.
Penalties scaled to desert have a utilitarian function
Desert values are widespread and deemed important.
Discourages private revenge by people who think D got less than deserved
Avoids loss of public respect for sentencing and justice system
Reinforces shared desert values, which helps people obey the law
Exactly tying desert to retribution is generally frowned upon
Too cruel (eye for an eye)
Hard to measure precise desert
Leaves little room for utilitarian goals of punishment
Really more of a question of setting the minimum and maximum limits of punishment (“limiting retributivism”)
Limiting retributivism
Fairness to D violated if D punished in excess of desert. MPC 1.02(2)(c).
Fairness to others may be violated if D punished very leniently.
Handout #1a: Revised MPC limiting retributive mode.
Deterrence
Factors that determine whether it works:
severity, certainty, and speed of sanction
D’s knowledge of above
D’s motives (greed vs. passion), characteristics, and situation
Murder is convicted about 2/3 of the time, all other crimes about 3% of the time.
Expressive values
Defining and enforcing social norms (positive general prevention; MPC 7.01(1)(c).
Negating D’s false moral claim
Reassure public something is being done
Fixing responsibility on D and absolving others (parents, society, etc.)
Utilitarian proportionality
Bentham: Penalties should be scaled according to need for severity, degree of social harm, and costs vs. benefits of penalties.
Penalties should not be unnecessarily severe.
Evil of punishment should not exceed evil of offense
Penalties should be scaled in proportion to seriousness of harm to give offenders a motive to “prefer” a less serious crime.
Insufficient punishment is bad.
Less certain
problems of proof. Acts imply causation and intent; omissions are less clear.
Punishment purposes.
Limiting retributivism: insufficient blame? Moral distinction between acts and omissions? Fair-notice issues?
Incapacitation, rehabilitation, specific deterrence: Ds may not be dangerous enough to warrant liability?
General deterrence: can omissions be deterred?
Scope of criminal law. Much easier to avoid acting than to avoid omitting. Many would be guilty, few would be punished. Violates equality/uniformity.
Wisconsin statute (p. 114)
Possession as an act
Possession is an act sufficient to impose criminal liability.
U.S. v. Maldonato (p. 115)
Zavala-Maldonado “possessed” the drugs when they were placed in a closet.
There are two kinds of possession, physical possession and constructive possession.
Constructive possession: D has power and intention to exercise control over the thing.
Each type of possession can be “exclusive” or “joint.”
Physical exclusive: gun in your pocket
Physical joint: two people carrying stolen TV
Constructive exclusive: drugs in a safe-deposit box
Constructive joint: like in this case, under power of multiple individuals including D, all of whom have intention to exercise control over the thing.
In this case, even though both joint-constructive possessors could veto the other’s control over the drugs, both still possessed them.
Required Mens Rea for possession crimes
Under MPC 2.01(4), possession requires that D “knowingly procured or received the thing” or was “aware of his control thereof.” “Knowingly” is the majority rule.
Maldonato court says that constructive possession requires “intent to exercise control.” MPC 2.02(2) requires that D have “conscious object” to engage in conduct to have “purposive” intent.
Difference between knowing and purposive: D could know (be aware) but not care.
Purposely is a more culpable mens rea, which is possibly better to require for constructive possession, because it is broader and more speculative than physical possession.
Requirement of Voluntariness
Crimes typically require a voluntary act.
Falater case: Man stabbed his wife 44 times and held her had underwater, tried to claim that he was sleepwalking during the incident.
Arguments in favor of conviction and punishment:
