Blumenthal
Criminal Law
Fall 2010
I. Civil versus Criminal
A. Kansas v. Hendricks: treatment, not punishment?
o Was a sexually violent predator suffering from a mental condition or was a prisoner?
o Majority: Physical restraint doesn’t imply retribution or deterrence (like quarantine of sick people)
o Goal is treatment. No finding of scienter (degree of knowledge making a person responsible for the consequences of his actions) required
o Dissent: treatment admitted by experts to be impossible. If it really was about treatment, why confinement first before evaluation.
B. Justifying punishment: utilitarian (34-58) versus retributive (58-63, 65-71) rationales:
· Utilitarianism: punish for the overall societal good. Prevent future crime for the greatest good of the greatest number of people.
o Consistency of punishment better than harshness?
o Overpunishing for minor crimes? Cost of punishment outweighs the benefit?
o Punishment should be greater than the potential benefit from committing the crime.
· Retributivism: punish for the guilty mind. Impose only because the individual has committed a crime.
o How effective is it in affecting the will of the criminal?
o What if criminal act without mens rea?
o Considers the individual to be autonomous
o Consistent punishment for the same criminal act.
Recidivism: the behavior of a repeat or habitual criminal.
Recidivist statutes, a “get tough” policy to incapacitate dangerous (utilitarian) and set determinate sentencing (retributivist)
Limiting punishment (utilitarian principles to handle retributive methods. P 34.)
1. No real offense
2. No power to produce an effect
3. Same end may be achieve through milder means
4. Too costly
Mutual weaknesses:
o Assumes rationality of criminals
o Does not figure in contextual factors significantly (provocation) and one’s ability to control himself
Hypo: Trapped babies in a car.
o Utilitarian: take the likelihood of consequence? Punish for general deterrence? Mental reform not required, considering grief. Responsibility for children needs to be enforced.
o Retributivist: community norms and expectations, worth of the victim, reeducating people on acting better. Shaming effect even if not convicted; perhaps scaring parent (charge high, settle low) can suffice.
C. Proportionality and other limits on the state’s power to punish (legality & specificity) 75-91
o Proof beyond a reasonable doubt. Very high standard.
o Prosecutor’s dilemma: why punish, and how much?
o Trial and sentencing separate: factors such as vulnerability of victim and context may come at the latter but not at liability.
o Determinate sentencing: length fixed or prospectively measurable at time of sentencing.
o US: almost purely unguided, discretionary, and indeterminate (so judges can pick between ranges, picks actual sentence from statutory range of punishments, and not fixed at time of sentencing).
· Who decides? Judges or legislature?
· Should it pursue a policy or rational purpose (util)? But it seems based on the crime and mens rea of the actor (MPC, retrib)?
a. Proportionality: Theoretical Considerations
a. 3 strikes statutes justifiable?
b. Fletcher v. von Hirsch (p81)
i. Von Hirsch: deviant citizen more blameworthy on retributivist grounds. Deviance against the state.
ii. Fletcher: we don’t operate that way on in liberal society. We cannot quantify on mental states. (204-205)
o Ewing (p 75) and three strikes law.
· 8th Amendment and “Cruel and Unusual punishment”
· Deferring to state legislatures and their intent/interests of incapacitation (Scalia), so accepting it for a robbery.
o Legality:
· Criminal law is statute oriented.
· US v. Hudson: Judges do not decide what the legislature does, but they can use their intent.
· State v. Egan: use common law until overruled by legislation. Useful to fill in the gaps.
· Nulla poena sine lege: no crime without law, no punishment without law. P 1036 – 1.05 (1)
Retributive: Give notice to people (don’t punish people doing things they did not know was wrong). Punish people that are blameworthy, and proportionately.
Utilitarian: need to be clear so society knows what is proper. Deter them from improper behavior by informing them. Law enforcement discretion to avoid discriminatory enforcement.
· Rogers v. Tennessee (p 155): statute overruling common law. Delayed death after stabbing does not absolve, since common law can be interpreted loosely and that portion was outdated/not used.
Keeler: beating of a fetus (p161) Pushed in opposite direction…letting people on or off based on technicalities. More consensus in Rogers with proximate cause than what is a human being, as here.
· Even with statutes, broad judicial discretion with terms such as “reasonably foreseeable.”
II. The General Part: Elements of a Criminal Offense
A. Commission of a Bad Act
o Actus reus: the physical act. Required in order to charge anyone for any crime.
o Why voluntary:
· Retributive reasons: blameworthy because you chose to do it
· Utilitarian: no deterrent value in punishing people for things they couldn’t control for risk of undermining law itself.
· MPC 2.01 (p 137): habitual is a voluntary act, even with its minimal mental effort (p 1039). Element of conscious control, defined mostly by negative examples.
·
doing something wrong already (like armed robbery) and death results, then liable for murder even if no intent to kill. 1st Degree if enumerated felony. 2nd Degree if not enumerated (not serious) felony. Ambiguity is the scope of liability: what counts as “in the course of a crime?”, and seems to get rid of causation.
Faulkner/Transferred Intent: Engaging in felony still makes him liable for unintentional effects (burning ship, p 198). Already acted feloniously, maliciously, and unlawfully in respect to instance. Stealing rum not sufficient to convict him of the greater crime. Difficult in transferring intent when the harm and the act are quite different, may not be foreseeable. Judges unwilling to let Faulkner’s intent to transfer over to the ship burning, and sustain liability on ultimate outcome. Needs volition in respect to ship burning to sustain liability.
Barry & Fitzgerald and the problem of transferring intent (doing something unlawful and attach it to the liability of burning the ship)
Sympathetic to Faulkner: if prosecution could show a causal connection between robbery and arson, then easier to prosecute. (foreseeable and likely)
· No evidence for liability, don’t use strict.
O’Brien and matter of reasonable expectation (doing a felony, harm resulted, story over. Worry about foreseeability using a jury.)
Also sympathetic, did not consider immediate effects (reckless, not malicious)
Reg v. Pembliton – throwing a stone to break a window, hurt a passerby
Keogh’s impatience with “refinements” (dissenter, already a criminal)
Completely reckless, did not think about his actions, should be liable.
Only need a guilty mind in the general sense.
Martin (starting a fire that led to a firefighter’s death, p 413)
Mens rea: but-for cause insufficient. Reasonable foreseeability required. Already a felonious intent in criminal’s mind.
Causation: not quite strict liability, since it includes mental element. Whether or not, in context, was it a probable
