I. Introduction
a. Model Penal Code (“MPC”)
i. developed by Herbert Weschler of Columbia and others in several series.
ii. Several themes:
1. sets out general principles regarding the state of mind and conduct necessary for criminal liability;
2. attempts to comprehensively and carefully articulate those matters covered;
3. is an organization of the penalty schemes (three degrees of felonies; petty misdemeanors and misdemeanors);
4. MPC posits mens rea critical to criminal liability.
iii. Many states revised their penal codes after the MPC came out (1962-1983; see book p. 10). Legislature adopts responsibilities previously held by the courts
iv. Federal criminal law also reformed
v. The Rule of Lenity: “when choice has to be made between two readings of what congress has made a crime, it is appropriate to go with the lesser of the two”
b. Sentencing Provisions of Modern Criminal Codes
i. Felony vs. misdemeanor: 1-year rule of thumb
ii. General Sentencing vs. Individualized Sentencing
1. General: one guideline followed; same sentences for same crimes
2. Individualized: each case sentenced individually; accommodate specific circumstances
iii. Movements:
1. Indeterminate Sentencing Movement: parole system integral to its operation; sentences are undetermined and prisoners are released when parole board deems appropriate
2. The Movement for Sentencing Reform: reformed because of inconsistency and public outcry towards indeterminate sentencing
iv. Types:
1. “Determinate” Sentencing: discretionary parole abolished; sentence by trial judge holds
2. “Presumptive” Sentencing: general rule on sentencing provided by legislature;
a. judges to presume this is appropriate;
b. permits flexibility but also appellate review if judge chooses to veer from recommendation
3. “Guideline” Sentencing: uses an algorithm to factor in various factors and create sentencing guidelines.
a. Legitimacy is questions because created by commissions; not legislature
c. The Nature of Criminal Liability
i. Herbert Packer:
1. Defines punishment as infliction of pain or other unpleasantness on an individual who has violated some rule;
2. 2 reasons to enforce punishment:
a. To prevent future offenses; and/ or
b. Exact retribution
ii. Henry Hart defines the aims of criminal law:
1. Operates by a means of a series of directions
2. Commands are taken as valid and binding
3. Commands are subject to sanctions for disobedience
4. Criminal vs. civil: criminal is any conduct that will incur a formal and solemn pronouncement of the moral condemnation of the community.
5. Criminal law threatens community condemnation and unpleasant physical consequences.
d. Justification and Functions of Criminalization
i. Retributionism vs. Utilitarianism
1. Retributionism: one who violates law “merits” punishment whether or not inflicting pain on the defender has a socially desirable consequence to others.
a. Requires 2 crucial premises:
C does not define “voluntary,” nor does it list exceptions the way the MPC does.)
iv. CL places voluntariness in actus reus, not mens rea.
1. For an act of commission the defendant must have made a conscious and volitional movement.
v. Robinson v. California (159): defining a crime in terms of a “status” rather than a particular act violates 8th and 14th Amendments
vi. Powell v. Texas (163): Although having a certain status (i.e. addict, alcoholic) cannot be a crime, performing an illegal act that is associated with that status still is a crime (i.e. being drunk in public). The Supreme Court plurality reads Robinson narrowly; avoids the mens rea interpretation in this case and focuses only on the actus reus; to focus on the mens rea could have broad ramifications in state criminal law. Thus the mens rea issue in this case is still wide open. So all we end up with is that the 8th Amendment requires an act, but each state can come up with its own definition of voluntary.
vii. State v. Mercer (173): Consciousness is part of the definition of the act (“voluntary act”), not the mens rea. Thus if ∆ shown to be unconscious during the actual act, despite premeditation and deliberation there is no criminal liability. Court also made clear that voluntary ingestion of drugs or alcohol would not establish an unconsciousness defense.
