Criminal Law
Finkelstein
Spring 2016
Introduction
Overview of Punishment (82-100)
1. Class Notes
On call every day
3 freebies- email Finkelstein by 9am morning of class if didn’t read/won’t attend and won’t get called on
3 discretionary not in class or not prepared (NOT counting illness)
Grading Policy:
Final Exam 80%
Multiple Choice
Essay
Class Participation 20% plus marginal bump up on exam
Preparation (not good/bad answer, just are you doing your best)
Attendance
Moot Court Exercise
Attendance
Perfect attendance will merit additional bonus for participation
Sometimes assigned to initiate a thread on the discussion board
Can ask questions on there, or Finkelstein might take a debate from class onto discussion board
Finkelstein doesn’t weigh in but reads all posts
Slides from class lectures posted at the end of each week
Dressler’s Understanding Criminal Law Only outline worth considering
Model Penal Code plus commentaries!
A. Introductory Remarks
Will cover some procedural issues, but focus on concept of crime and concept of punishment
What is a crime and what are the consequences of identifying someone as guilty?
What is the general concept of crime? (General part)
EG: concept of what is a criminal act, what is the concept of voluntariness, and how do we identify which specific act was the crime (what are the elements of an offense)
What is the mental state with which a crime must be committed? (Mens rea)
Relationship between responsibility and what’s in your mind when you act
Defenses
1) Voluntary Act + 2) Requisite Mental State Prima facie guilt UNLESS 3) Affirmative Defense
Key difference between Torts and Criminal law: mental state
Compare both throughout semester but keep them separate
B. Regina v. Dudley and Stephens
Brooks could have been a defendant but disagreed with deal between Dudley and Stephens at the time (though he did eat boy after). Modern- Brooks would be seen as an accessory after the fact unless he took an affirmative act to remove himself from the act.
Also: Brooks could be implicated as a co-conspirator, identify his connection to the act as a possible locus of responsibility
Class issue here- Dudley and Stephens were aristocratic while cabin boy was low class
Can’t contract to do illegal things you can’t agree to be killed
In some instances, you can take a risk to be killed
Necessity Defense
P 85: The private necessity which justified, and alone justified, the taking the life of another for the safeguard of one’s own to be what is commonly called “self-defence.”
Private vs. public necessity: I had to do it to save myself vs. I did it for the good of society
Concept of reasonableness: is this what a reasonable person would have done?
Necessity: three lives worth three times as much as one life
Sometimes called the defense of “lesser evils”
Problem: what if ship had not shown up on fourth day and had to keep eating people until it was 3 lives to save 1 still justified?
Equal evils at the time of each death, also people would have died of natural causes anyways
Self-Defense
NO: specific to someone who is attacking you
Excuse Defense
Temptation- court doesn’t think they could meet that standard themselves
Punishment
Commutation v. exoneration
C. Introduction to the Theory of Punishment (1/13)
2 prevailing theories of punishment:
Deterrence- purpose of punishment is to dissuade the commission of like crimes in the future
Special deterrence- stop a particular person from committing bad acts
General deterrence- discourage people in general from committing bad acts, “We must make an example of this defendant to dissuade others”
Usually deal with general deterrence
Retributivism- right a wrong, purpose of punishment to give criminals what they deserve
Kant- The penal law is a categorical imperative; and woe to him who creeps through the serpent-windings of utilitarianism…. (FIND QUOTE- P94)
D. Applying the Theories
Distinguish: 1) general justifying aim of punishment, 2) Measure of punishment under each theory
Drawbacks of each theory:
Deterrence (Utilitarianism)- punishment of the innocent
Violating rights isn’t a utilitarian objection
Retributivism (Deontology)- measure of punishment cannot be made coherent
Alternate theory: Rational Actor Theory (Contractarianism)- Two versions:
One view that people who don’t abide by rules are freeriding and getting benefits without complying with constraints,
Rules of criminal law are part of a rational contract among memers of society, “I will constrain myself and follow the rules if you do the same”, a person who violates has authorized his own punishment
Basis is consent!
Note: There are many other theories of punishment, book just focuses on these two and mixes.
IE: Expressive theory- “expressing our condemnation”
es of burdens people are forced to assume
Punishment justified as an assurance that all people will carry the burdens, out of fairness as a mechanism to equally distribute the burdens, and out of justice so that those who don’t carry the burdens aren’t unjustly benefitted
v. Marxism and Retribution: Jeffrie Murphy
Disagrees with retribution
Retribution sees punishment as a payment for the benefit one receives by being part of society
BUT many poor criminals are disenfranchised- no benefits to pay for
If punishing based on a moral right, first need to restructure society so that punishment will be permissible because the criminals were in fact beneficiaries of the system
vi. Correcting Harms versus Writing Wrongs: Jean Hampton
Disagrees with retribution
Seeing retribution as compensation for “benefits” taken by offenders makes rape/murder seem like attractive propositions
Absurd to suggest that the rest of society covets those activities
vii. A Test Case for Ethical Objectivity: John Mackie
No payback: A criminal’s suffering isn’t the same as his repaying a debt to the victim/society
No annulment: Penalties don’t wipe out the otherwise still-existing crime
Wrong focus of fair play: focuses punishment on the advantage gained by the wrongful act and not the wrongness of the act/its harm, which in some cases leads to incongruous results
IE: businessman speeding to a meeting for $100K contract fined $100K for speeding, murder kills man for $50 only fined $50
Actus Reus
Actus Reus and Voluntariness (205-218)
1. Class Notes
G. Introduction to Actus Reus
Every crime requires a guilty act coupled with a guilty mind.
Guilty act begins with identifying specific prohibited conduct
Model Penal Code commonly used
Textbook case is New York because code almost identical
Drafted in 1960’s
In general: well thought out system for identifying crimes/defenses and using it as a sounding board for crimes, but not every state has such a well worked out system
