I. The Justification for Punishment
A. Different Theories
1. Deontological
Also known as non-consequential, retribution or deserts theory: Retribution (which is not revenge) means that you punish people because they deserve it. It’s justifiable to punish because it’s good to give people what they deserve. Seems deeply ingrained in us in “evolutionary background,” but just because we’re “hardwired” for this doesn’t necessarily justify it. It’s hard to give “non-theological” justifications for deontological theory because arguments eventually run-out.
2. Consequential
Ancestor is Mill’s Utilitarianism (maximize happiness) whereas today we maximize satisfaction (utility). In criminal justice, we want to maximize safety and reduction of crime
· General Prevention – To population as a whole
o Fear – you’re scared of punishment
o Education – teaching effect of what’s right thing to do
o Habit Stimulation
o Maintain Respect / Non-dedication – maintain respect of criminal law by denouncing and no-depreciating the “seriousness” of crime
o Denunciation / Social Cohesion – when we denounce crime, we’re saying it’s outside rules of social norms and thus we reaffirm the social context of what’s acceptable behavior and what’s not
· Specific Prevention
o Fear – you’re sitting in jail and it hurts so you don’t want to hurt again
o Incapacitation – while you’re incapacitated, the only person you can harm are the other prisoners and guards as rest of population is safe (surest way is death penalty)
o Reform – (non-paternalistic reform because it’s not for the “good” of the criminal) reform for the “good” of society
· Other
o Expressive Function – expressing to criminal, condemnation and sorrow so that the criminal will be motivated to repent and repair the social bond
o Social Cohesion – because we want to maximize social cohesion
3. Mixed Theory
· Mixed Theory – Need both retributive and utilitarian justifications to punish
· Necessary Retribution – This is the justification that you can’t punish unless they deserve it. Almost everyone (seems as if we’re hardwired this way) believes that this is necessary
· Threshold Retribution – You have strong presumption on deontological ground but if past the threshold (i.e. punishing one person would save all of humanity) then you justify through consequentialism
· Sufficient Retribution – Are just deserts alone justification to punish?
B. Applications of Theories of Punishment
1. Regina v. Dudley and Stephens (1884)
Page 73
Facts – Two sailors on a life raft collaborate and decide to kill a teenager boy who is the worst condition and eat him in order for them to survive.
Holding – The two were guilty of murder as the circumstances did not justify the killing of the boy.
Opinion justifies holding in several ways but consequential arguments (both specific and general deterrence) fail. The only way to justify is through moral or deontological means
2. United States v. Michael Milken (1990)
Page 107
Facts – Δ violated tax / security laws and is being sentenced
Judge can’t justify on grounds of specific prevention but rather on grounds of general deterrence
3. United States v. Jackson (1987)
Page 112
Facts – 30 minutes after being released from prison, a repeat offender robs another bank
Easterbrook in majority opinion says that specific deterrence has failed and thus justifies based on general deterrence and incapacitation (sentences for life). Posner concurs with sentence but thinks sentence is too harsh and claims that specific deterrence is useless past a certain number of years as people will “out-grow” criminal inclinations and additional general deterrence marginal benefit is small
C. Criminal Punishment Distinguished from Civil Confinement
1. Kansas v. Hendricks (1997)
Supplementary Handout
Facts – Repeat sexual offender was about to be released from 10 year sentence but Kansas decides to put him in civil confinement under Sexual Predator Act.
Holding – Act doesn’t establish criminal proceedings (it’s civil) and thus is not punitive and removes essential claims of ex post facto and double jeopardy claims as brought upon by Δ
Requirements for civil involuntary commitment: 1) mental abnormality, 2) prior criminal justice involvement, and 3) future dangerousness. Jackson fulfills #2 and #3 but not #1 whereas Hendricks qualifies for all three of them. Hendricks had to shows “clearest proof” that statute is punitive but failed to so. It’s not punishment for several reasons but basically it’s “treatment” for mental disorder. Breyer dissents by saying it is punitive (if it wasn’t then, why didn’t they start treatment at beginning of 10 year imprisonment?)
II. Culpability: The Act Doctrine
Criminal Liability: Act + Mental State (Means Rea) [+ Circumstance + Result + Causation] = Liability
MPC §2.01 (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
A. Rationale
· Can’t Deter – Consequentialist reason says you can’t deter involuntary action. Main reason outlined in Model Penal Code but Professor Morse suggests that this is not so big.
· Desert – Retributivist reasons says they don’t deserve punishment if they didn’t act. This is the main reason but it’s not in MPC
B. Distinguished from Related Doctrines
1. The meaning of “involuntariness”
a) Martin v. State (1944)
Page 182
Facts – Officers arrested Martin and took him on public highway where he allegedly manifested drunken conditions – loud and profane.
Holding – State statute presupposes a voluntary appearance and in this case it wasn’t voluntary
Nobody forced him to be loud and profane but he did. However, courts interpret statute so that “appearance” is under act (must be voluntary) and not under circumstance (i.e. just being outside drunk). Why would it be fair to punish people for something they didn’t do?
b) People v. Newton (1970)
Page 184
Facts – Officer shot Δ in abdomen which caused reflex shock reaction where he was unconscious while he wrestled away gun, shot officer, and went to ER.
Holding – Since it was involuntary unconsciousness, there was error in court’s instructions to jury and thus Δ is not culpable under act doctrine.
There was error in not notifying jury of defense of “unconsciousness.” Means that he wasn’t responsible for actions and so act is not act at all. (Some states see as Prima Facie requirement under Act doctrine while others see as affirmative
Δ was found not guilty as she didn’t have a duty. When she took them in, she had responsibility to care for them, but mother was always present and Δ had no right to usurp the role of the mother, even when mother is “crazy”
Statue had two elements – duty to child and “abuse” itself; statue didn’t have “omissions” itself but courts interpreted precedents to include “omissions” as well. Δ clearly had abused under statute but didn’t have the duty.
We’re stingy about extending these duties:
· Don’t want to infringe on individual liberty
· Hard to find a good stopping point (slippery slope / no bright line)
B. Rationale for Differential Criminal Law Regulation of Acts and Omissions
Criminal Law is generally more forgiving of omissions rather than acts. We’re stingy about extending these duties because we don’t want to infringe on individual liberty and because extending duties would be limitless.
C. Scope of Punishment for Omissions – the Exceptions
· General Statutory Prohibitions of Omissions – Some jurisdictions make it a criminal offense to refuse to render aid to person in peril (Minnesota, Rhode Island, and Vermont); also known as “Good Samaritan Statues” (another example is legal duty to file taxes)
· Common Law Status Relationships – Court notes in Jones that it is well settled that a duty to aid arises “where one stands in a certain status relationship to another” (i.e. parents-minor children, spouse-spouse)
a) Commonwealth v. Cardwell (1986)
Squib on Page 204
Step-father is abusing and molesting step-daughter who is daughter of his wife (Δ). She was charged with abuse by omission (she might be able to make an excuse defense saying that she had no real choice – there was an implied threat from him)
· Voluntary Undertaking – Generally there is duty if you voluntary undertake responsibility (see Jones and Pope)
· Contractual Duty – Failure to perform a duty created by contract will in some situations will create criminal liability – especially if under contractual duty to protect or care for others
· Culpable Causing of Peril – Law is clear that if you are culpable of criminal act which puts another in danger, you have a duty (i.e. criminal liability if Δ commits battery and leaves victim on road, where victim is later run over by a car and kills victim à Δ is guilty)
· Innocent Causing of Peril – There is almost no law about this and it’s hard to make an argument either way. Professor Morse used hypothetical about a person who accidentally (not culpable) pushes a baby into a swimming pool. Is there a duty to rescue? Is there any more duty to you than to another innocent bystander who is nearby?
Posse
