CRIMINAL LAW MORSE FALL 2014
I. THE JUSTIFICATIONS FOR PUNISHMENT
1) Regina v. Dudley and Stephens, UK 1884, pg 73
Facts: After a shipwreck, two guys on a life boat kill a boy on board and the three sailors on the lifeboat eat him to save themselves from starvation. The boy was near death from dehydration and weakness. They are saved a few days later. The jury couldn’t decide whether this constituted murder and referred the question to the Court. Lifeboat cannibalism was a common practice at the time and the UK wanted to make an example of them.
Issue: Were the sailors justified in eating Parker, the boy on the lifeboat, due to necessity?
Holding: Convicted of murder, the sailors later had their death sentence commuted to six months imprisonment by Queen Victoria due to their popularity.
Reasoning: Bad arguments the court used to justify their conclusion include:
1) Argument from authority (Hale v. Bacon, court just dismisses Bacon for no apparent reason even though he argues that necessity is a justification).
2) Argument from administrative indeterminacy: Hard to make a limited rule here for when killing isn’t murder
3) Argument from utter divorce of law and morality (would allowing this really be an utter divorce?)
4) Argument from deterrence (exceptions reduce deterrence effect)
5) Safety valve argument: Sovereign can always grant clemency
6) Don’t want to weaken the legal definition of murder
Potential Defenses: 1) Act maximized net social benefit (necessity); 2) Insanity; 3) Temptation: Even though D’s were rational, they couldn’t control themselves; 4) All legal bets are off in a natural setting.
Murder: 4 elements: 1) Intent to kill; 2) Killing conduct; 3) Death; 4) Causation
Indictment: Accusation by prosecution presented to a grand jury without defense counsel present.
Justification: D did something that otherwise would be a crime but because of the specific circumstances here, the act was permissible. An ex is self-defense.
Excuse: D did something wrong but is not responsible for his act for some reason. Ex. is insanity defense.
General Theories of Punishment:
1. Consequentialist theories: Try to maximize whatever you are looking for (often these theories are utilitarian, in which case they are trying to maximize pleasure)
(1) General Prevention
(a) Fear (general deterrence)
(b) Education/moralizing
(c) Habit formation
(d) Maintain respect for criminal law
(e) Social cohesion: We’re all in it together; crim pun is an expression of shared attitudes and values.
(2) Specific Prevention
(a) Fear (specific deterrence)
(b) Incapacitation
(c) Non-paternalistic reform: We’re not fixing you for your own good (which would be a moral blindness problem due to limited resources) but for society’s sake
(3) Social Cohesion: Something that ought to be maximized because innately important
2. Deontological Theories: Society should only punish people if they deserve it, to the extent that they deserve it. Punishment is right in of itself. Retribution is about just deserts, not revenge, which would be a consequential justification. This is not a primitive concept but a legitimate theory.
a) Necessary Retributivist – You are not willing to punish people unless and at least they deserve it (permissive)
b) Sufficient Retributivist – Don’t care about the consequences, only care about punishment. It is sufficient to punish someone because they are guilty no matter what the CBA of the outcome is.
c) Revenge – Getting back at people; blood lust. This is NOT retribution.
3. Mixed Theories
a) Punishment is justified if and only if it achieves a net social gain and is given to offenders who deserve it
(1) We punish offenders because some net social gain is achieved … but only if such offenders deserve it.
(a) Limited by what the offender deserves
(2) We punish because offenders deserve it, but only if some net social gain is achieved by doing so.
(a) Limited by social gain
What Should We Punish For?
1) Criminal Act
2) Character
3) Life: Take full life into account at sentencing
How Does Society Make Choices About Punishment?
1) Voting
2) Exit: Go somewhere else if you don’t like the system where you live
3) Civil Disobedience
4) Rebellion
Punishment Elements
1) Certainty caught
2) Celerity (distance in time from crime caught)
3) Severity of punishment
–Need less severe punishment for deterrence purposes if certainty and celerity are high, but a Sunstein study showed people still want to punish in these situations bc they are natural retributivists.
2) US v. Milken, SDNY 1990, pg 107
Facts: Milken is being sentenced for six counts of criminal activity which violated securities laws, tax laws, and other laws. Judge Wood can sentence Milken anywhere from 0 to 28 years in prison.
Issue: What factors should be considered by a judge in sentencing, and should they weigh solely the actor’s crime, character, or entire life? Wood mentions individual deterrence, general deterrence, retribution, rehabilitation (rare justification).
Holding: Milken sentenced to total of 10 years in prison, with 2 years for counts 2 to 6 to be served consecutively and three years of probation for count 1.
–Not all factors justifying punishment point in same direction.
–10 years seems to sort of been picked at random.
–Wood was severe and really only seemed to take his act into account and not his character. Only willing to reduce sentence based on cooperation which has nothing to do with culpability or deterrence.
–Justifies harsher punishment as necessary to deter subtle, hard-to-catch crimes, and on Milken being leader of his group (culpability arg).
3) US v. Jackson, 7th Circuit 1987, pg 112
Facts: Jackson was released from prison on “work release” while serving time for two bank robberies. Within thirty minutes of his release, he robbed a bank and was caught shortly thereafter. His principal sentence was life in prison without possibility of parole under a statute forbidding possession of weapons by career criminals. (This was a three-strikes type provision that required a minimum of fifteen years of jail time but included no maximum for jail
cant; 2) Commitment began after jail sentence over (if really concerned with his problems, why not commit him from beg); 3) No consideration of less harsh alternatives; 4) Other state laws less harsh.
–Morse feels this is definitely punishment by other means. Definition of mental abnormality is circular and doesn’t mean anything. Loss of control is what’s important and it is a hard to understand concept involving strength of desire, motivation to control, self-control problem, etc. But, D’s acts are definitely an intentional act responsive to reason which can be addressed in terms of intent, so not a loss of control here.
Crane: Similar case where SC later ruled that loss of control needs to be proven independently to 3 other reqs of law but doesn’t define it.
II. CULPABILITY: THE ACT DOCTRINE
A. Acts: A voluntary act is an intentional bodily movement or omission done in a state of reasonably integrated consciousness.
Concurrence requirement: Need to have a concurrence between an act and an appropriate state of mind in criminal law.
MPC Section 2.01. REQUIREMENT OF VOLUNTARY ACT; OMISSION AS BASIS OF LIABILITY; POSSESSION AS AN ACT
(1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
(2) The following are not voluntary acts within the meaning of this Section:
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or while asleep;
(c) conduct during hypnosis or resulting from hypnotic suggestion;
(d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.
(3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
(a) the omission is expressly made sufficient by the law defining the offense; or
(b) a duty to perform the omitted act is otherwise imposed by law
(4) Possession is an act, within the meaning of this Section, 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.
Prima facie case of a crime (1st 2 elements in all crimes and last 3 sometimes in crimes): Act/Omission + Mental State (Mens Rea) [ + Attendant Circumstances + Result + Causation] = Prima Facie Liability
Whenever looking at a statute, always analyze in terms of P.F. liability for crime and figure out the elements.
