I. Theories of Punishment
Utilitarian: Deterrence/prevention
§ General deterrent: on public at large
² depends on rationality because you’re not experiencing the pain yourself
§ Specific deterrent: that specific Δ
§ Could potentially justify jailing innocent people to deter others
§ The ends justify the means – pain inflicted by punishment is justified ONLY IF it results in a reduction in crime: Consequentialist
§ Forward-looking
Rehabilitation
§ Make criminals safe to return to the streets – keep someone from committing a crime again (could be similar to deterrence)
§ Can take it beyond safe in the streets – also so they can lead ‘productive flourishing lives’
² allots scarce resources to criminals that other more deserving people could make use of
² paternalistic,
² should be punishing them not treating them
§ Retributivist says the person still doesn’t get their just deserts
§ Deterrent – this doesn’t keep others from committing the crime and isn’t much of a deterrent for the person – it’s really pleasant
Incapacitation
§ Can’t hurt anyone else
§ Costs about $25,000 a year to keep a criminal in prison – costs twice as much to let a prisoner loose (DiIulio)
Retributivist
§ Wrongdoing creates moral disequilibrium, so Δ should “pay his debt” to society
² Even if the victim isn’t interested
§ A retributivist punishes because the offender deserves it – just desserts
² It is morally right to hate criminals
§ The means are more important than the ends: Deontologist
§ Backward-looking
Mixed Theory – Application
§ General aim is utilitarian: to deter conduct that society deems undesirable
§ BUT, retributivism determines WHO should be punished and HOW MUCH punishment should be inflicted
² Who – it’s wrong to intentionally punish innocent people, even if it would have beneficial effects
² How much – Just deserts should prevail in imposing punishment
Life imprisonment for drunk driving. Draconian, possibly impractical. More appealing under deterrence. Deterrence can impose much too severe penalties. Retribution would say case by case – life imprisonment if he runs someone over, a less severe penalty just for drunk driving.
Theft. Retributivist advocates forced labor – thief stole from society and needs to give something back.
Castrated rapist – Other situations have rendered criminal unable/unlikely to recommit (theft – just inherited a large estate, rape – not able to have sex anymore). We can avoid punishing him without the rest of society knowing. Still has to be punished under Retributivist. No punishment necessary under Deterrence.
Eliminate drug rehab, make sentences for drug related crimes shorter – will that decrease drug crimes?
If you support rehabilitation, you must make sentences stronger or harsher – rehabilitation makes the time easier. If the goal is retribution or deterrence, wouldn’t it be better to get the punishment over quicker instead of watering it down with rehab and making the actual time take longer?
The extreme on the other end would be torture – just the same quantum of suffering over a shorter period of time.
Send all the criminals away – works under incapacitation. Other criminals would step up – you would have just as much crime as before. Retributivist wouldn’t like it – no just desserts.
Regina v. Dudley and Stephens
Queen’s Bench Division, 1884
Killing an innocent person to save your own life is murder.
§ Lord Hale – the only justification for taking another life is self defense. “for he ought to die himself than kill an innocent.”
§ Soldier/Christ analogy – case when someone is required to die rather than to preserve his
§ the logical result of allowing Δ to kill would be to allow the same in any case where one person could save several others by dieing
§ Arguments: (we don’t really find any of these persuasive)
² No real necessity existed
² Not self defense (Dudley wasn’t claiming that)
² Even theft in dire circumstances wouldn’t be permitted, much less homicide
² Soldier analogy – case when someone is required to die rather than to preserve his life (on the opposite side, the soldier dies for the larger community – what about killing Parker for the greater good?)
² Who is to judge? The person who would benefit?
² Footnote – no net saving of lives
§ More potent reply – the logical result of allowing Δ to kill would be to allow the same in any case where one person could save several others by dieing (5 people dieing from organ failure – 1 person has all of those organs. We could say nothing to a doctor who killed someone coming in for a checkup to save the 5)
German Doctors: Hitler ordered to mercy kill all incurable mentally ill patients. Some doctors quit in protest, others stayed on to circumvent the order and change the orders on some patients so they would be classified as curable. However, these docs had to still kill a few patients so that they would not be found out to be completely disobeying orders. These docs are on trial for the murder of the patients they killed since Hitler’s order was found to be invalid.
Kidney club – insures you against kidney failure – if both of yours fail, a lottery is held, and someone is chosen at random to donate one. Wouldn’t a rational person sign up? Wouldn’t Parker have signed up early on if he was rational? The body of law that makes killing/taking someone’s kidney illegal trumps consent or contracts. As far as some things go, you’re always entitled to reneg.
Utilitarian/Consequentialist
Retributivist/Deontologists
the best choice of action is the one that has the best outcome
outcomes aren’t everything; the way in which you get to an outcome matters a great deal
Minimization Principle: Net saving of lives (stressing the ends and not the means)
(counter-example to minimization principle) transplant-type examples (should not kill one healthy person to save five inflicted persons) – this kills one person to save five, all are innocent. Ds stress the means.
There is no rational basis to the aversion to the transplant scenario. The revulsion was unprincipled.
act v. omission distinction – there is a difference b/t killing someone and letting them die – you should definitely not focus on the numbers and instead on the type of killing
But even on the act v. omission principle it makes sense for the doctors to stay on because to act would be better than not acting
The future killings of patients will not be done by me, but by other doctors, thus omitting from Hitler’s orders will save the lives killed by myself
Contract Argument: the sailors had discussed in advance of the Regina scenario and wanted to make arrangements as to what should have been done – what would these have been?
The agreement would be unconscionable is agreed upon. Non binding of contracts as far as specific performance
II. Actus Reus
Physical/external portion: 3 components:
§ Voluntary act
§ Causes
§ Social harm
Voluntary Act Requirement
Voluntary Act: use of the human mind
Involuntary Act: Use of the human brain without the aid of the mind
§ Can’t be deterred
Major complications:
§ Multiple act problem
(A) Does the voluntary act principle require that all acts be voluntary or just one? What if he had punched the officer instead of being boisterous?
§ Time issue – can the earlier voluntary acts satisfy the requirement?
(B) Usually it is sufficient if Δ’s relevant conduct included a voluntary act
§ Acts of a more metaphorical nature – seems like someone/something else is taking control
(C) What about insanity? Sleep walking? A propensity to aggression (XYY chromosome)? Are these voluntary acts? Hypnotic or post-hypnotic suggestion?
(D) Voluntary act is moving a body party – there are only a few exceptions.
MPC
Common Law
People whose involuntary movements threaten harm to others present a public health or safety problem, calling for therapy or even for custodial commitment; they do not present a problem of correction
Doesn’t apply to violations – max penalty of a fine or civil penalty
§ XYY has most of the time been rejected, schizophrenia treated under insanity not involuntary
Martin v State
Alabama Court of Appeals, 1944
Because Π’s appearance in public was involuntary, he can’t be charged.
§ The statute requires 2 acts – that he appear and that he be boisterous.
§ Δ was convicted of ‘being drunk on a public highway’ where he was drunk, loud, and profane
§ Officers arrested him at home and took him onto the highway
Epileptic – knew he was and subject to attacks –prosecuted for criminal negligence
§ Statute clearly outlines this as criminal negligence – “a person who operates any vehicle in a reckless or culpably negligent manner…”
§ Δ claims involuntary epileptic seizure
§ Court didn’t care about the seizure – there was sufficient voluntariness to satisfy the voluntary act requirement – he knew he was subject to a seizure and got in the car anyway
Coffin
killed her daughter while sleepwalking thinking her daughter was being attached by soldiers
People v Newton
California District Court of Appeal, 1970
“Unconsciousness is a complete defense to a charge of criminal homicide… it can exist… where the subject physically acts in fact but is not, at the time, conscious of acting.”
§ Δ remembers being shot but remembers nothing else until arriving at the hospital.
§ After Δ was shot in the stomach, he shot a police officer 3 times
Criminalizing status
Robinson v. California
Supreme Court of the United States, 1962
Making addiction itself illegal is in violation of the 8th and 14th amendments.
§ To some extent, the Voluntary act requirement has constitutional basis.
§ A status can’t be illegal – Wouldn’t make it illegal to have a cold, be a leper, be mentally ill, etc.
§ Drug addiction is an illness like any other, can be addicted involuntarily
§ Δ had ‘scar tissue, discoloration, and need marks which indicated his frequent use of narcotics’
§ CA statute that makes it illegal for someone ‘to be addicted to the use of narcotics’
§ Jail time for an illness is cruel and unusual punishment
Powell v Texas
Supreme Court of the United States, 1968
Although states can’t criminalize an addiction, they can criminalize acts resulting from it.
§ Court shouldn’t be trying to define insanity: “It is simply not yet the time to write into the Constitution formulas cast in terms whose meaning, let alone relevance, are not yet clear either to doctors or to lawyers”
§ Δ was arrested for being drunk in a public place
§ Alcoholics are under a ‘compulsion (that is) while not c
ere is a burden to you.
Rationale
Pro:
§ Difficult and expensive to prove mens rea and causation
§ Overdetermination – How would you decide who was guilty and who wasn’t?
§ Autonomy – society values personal liberty and individualism
(N) Too burdensome – Untold harm is constantly being done that you could prevent
§ Utilitarian – sometimes Good Sams do more harm than good
§ Charity – If people are required to help, they might become less involved to avoid risk of liability
§ Moral –not every violation of a moral duty should be punishable
§ If you act, you make the world worse; if you don’t, you don’t change the world – can’t be liable
Anti:
§ Exonerates people who are guilty of moral indifference
§ Utilitarian – deters b/c bystanders are required to assist and intervene; promotes social cohesion
§ We impose personal liberty restrictions in other areas (deprive someone) – Draft/taxes
MPC §2.01 Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act
(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.
III. Mens Rea
§ Specific intent – “intent-plus”
² Δ must have intent to do the actus reus AND the specific intent to cause the social harm defined in the offense beyond the conduct or result that constitutes the actus reus
² Specific intent cannot be inferred from conduct
² Qualified for additional defenses not available for other crimes
² Ex. Burglary, assault, conspiracy, embezzlement, robbery, larceny, attempt, premed M1, etc.
§ General intent – “catch-all”
² Almost every crime is a general intent crime
² General intent can be inferred from conduct
² Ex. Rape, battery, false imprisonment, invol man, most other crimes
MPC
Common Law
splits intentionally into purpose and knowledge
Uses intentionally – Δ has result as his conscious object OR knows it is a virtually certain result
draws a clear distinction between negligence and recklessness – not on the degree of risk involved but on Δs knowledge of the risk.
more willing to hold people for willful blindness
when it is not clear which element a mens rea applies to, apply it to all elements of the offense
Reasonable person is evaluated from the perspective of a person “in the actor’s situation” (i.e. physical characteristics but not hereditary factors or matters of intelligence or temperament)
MPC §2.02 General Requirements of Culpability
(1) Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.
(2) Kinds of Culpability Defined.
(a) Purposely: A person acts purposely with respect to a material element of an offense when:
(i) the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
(ii) the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.
Purpose without knowledge – man buys a plane ticket for his wife hoping the plane will crash but he has very little knowledge – doesn’t know it will happen
(b) Knowingly (Willfully): A person acts knowingly with respect to a material element of an offense when:
(i) the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
Distinguishing knowing and purpose – man torches his home to collect the insurance but family members are inside – his intent (purpose) was to burn the house but he knew the people would die