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Criminal Law
University of Oklahoma College of Law
Henderson, Stephen E.

Retributivist (Kant)
Wrongdoing merits punishment- morality (“affirmative principle- desert justifies punishment”)
o   Deontological theory- theory of ethics/morality
o   Non-consequentialist- not worried about the consequences of action
o   Proportionality- punishment proportional to moral wrong
o   Limiting principle- no undeserved punishment
o   Criticisms- irrational (because no purpose and founded on emotions), society should not attempt to cause more human suffering
Utilitarianism (Bentham)
Consequentialism- justification of a practice depends only on its consequences
Limiting principles
Utility principle – no punishment if:
·         Misapplied-
·         Inefficacious punishment
·         Superfluous punishment
·         Punishments too expensive
Idea of framing an innocent man
i          Punishment > advantage of offense
ii        The more deficient in certainty the severer it should be
iii      Greater offense should be subjected to severer punishment
General Deterrence- D is punished to convince the general community to forego criminal conduct in the future
Specific deterrence- D’s punishment meant to deter future misconduct by D
o   Rehabilitation (reform)- reduce future crime through reforming wrongdoer
o   Penitentiary- principles of separation, obedience, and labor
o   Incapacitation- Works if three conditions are met
Ø  Offenders must be repeaters
Ø  Offenders taken of the streets are not immediately and completely replaced
Ø  Prison must not sufficiently increase post-release criminal activity
Other Principles
Principle of Least Eligibility
–          Worst off person should be better than the best off prisoner
–          How to determine: proportionality, utilitarian- view in light of the negative effects that too great or too little punishment may have.
Criminal act
Actus Reus (MPC 2.01)
(1) Voluntary Act (2) that causes (3) Social harm
a.      Retributivist- No undeserving punishment; no moral blameworthiness (not responsible for thoughts)
b.      Utilitarian- impossible to deter thoughts
May be 3 things:
c.       Conduct- Speeding; Results- Killing someone; Attendant Circumstances-i.e. Statuary rape (age of victim)
The “Act”
Act is simply a bodily movement, a muscular contraction. (Physical but not necessarily visible behavior)
i          Can be bodily movement but not act (i.e. someone grabbing my arm and swinging it)
ii        Act does not apply to the results of a person’s bodily movement
Proctor v. State
Statute made it unlawful to rent or maintain place with intent of manufacturing, selling bartering, or furnishing liquor- failed because to overt act. Underlying act of renting or maintaining a place is lawful. Must be connection b/t.
2.      Four situations punishing an omission:
a.      Statute
b.      Status Relationship
c.       Contractual duty
d.      Voluntarily assumed duty
iii      E.g. – Kid drowning (bystander- no; lifeguard – probably; babysitter- contractual?)
*Inchoate Offense
(1) Requires knowledge in procuring drugs (act) or failing to dispossess (omission)
MPC 2.01- “if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.”
Constructive Possession- (1) effective power over the thing possessed (2) the intention to control it
o   Dominion and control are not established by proximity of drug or association with person who does control
United States v. Maldonado
During drug deal Zavala found to constructively possess the drugs because he left them in his hotel room; even though he never actually held the drugs. Possession was also found in intent to exercise control over the drugs when passing them to his boss
U.S. v. Nevils
Cannot come into possession while asleep b/c no knowledge
Rationale- law cannot deter involuntary movement (utility); no moral blameworthiness with no choice (Ret)
MPC 2.01- sets forth further involuntary acts (i.e. reflex, convulsion, etc.)
2 Parts: (1) The act (2) Voluntary
o   The Act- bodily movement/ a muscular contraction
o   Voluntary- volition – choosing to do an act
Time framing*
D’s conduct must include a voluntary act – include= court must choose relevant conduct (i.e. when the conduct (performed w/ requisite mens rea) that actually and proximately cause the social harm charged
e.      Example- D, epileptic, charged w/ criminal neg

d these were bad rationales
Mens Rea
“An act does not make a person guilty unless the mind be guilty”
Presumption- there is always a mental culpability requirement
Retributivist- not morally responsible if they didn’t mean to commit crime
Specific deterrents
a.      Argument for- (1) Person cannot be specifically deterred unless he appreciates that punishment result
(2) Encourages people to be more careful & works best if making a choice;
b.      Argument against
(1) Not necessary b/c general deterrence only matters in aggregate; look at criminal justice system as unjust
(2) Societal costs- higher burden of proof, more guilty people free
People v. Dillard
D was carrying around loaded firearm in public place. Argued that this offense required knowledge that the gun was loaded. Ct. held that this knowledge not an element of the offense b/c strict liability offense.
MPC 2.02- Four guilty states of mind:
(1) Purposely – the actor’s conscious object is to engage in conduct or cause a result; he is aware/hopes/believes the attendant circumstances of the offense exist.
(2) Knowingly – the actor is practically certain that his conduct will cause a result; he is aware of the nature of his conduct OR the existence of attendant circumstances.
1.    Ostrich Caveat – Knowledge is established where a person is aware of a high probability of the element of the offense, unless he actually believes it doesn’t exist (M.P.C. 2.02(7)).
(3) Recklessly – the actor consciously disregards a substantial and unjustifiable risk and such disregard is a gross deviation from the standard of conduct of a law-abiding person.
(4) Negligently – the actor should be aware of a substantial and unjustifiable risk and his failure to perceive the risk involves a gross deviation from the standard of care of a reasonable person.