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Criminal Law
Villanova University School of Law
Bersoff, Donald N.

Criminal Law
Crime = actus reus (act) + mens rea (state of mind) – exculpatory excuse (justification or excuse)
Crimes are commands. These commands can be prohibition (thou shall not kill) or affirmatory (you have to file with the IRS)
A.  Justifications of Punishment: In General
1.     Three fundamental questions to ask:
a.     Why and whether the social institution of punishment is warranted?
b.     What are the necessary conditions for punishment in particular cases?
c.      What is the degree of severity that is appropriate for particular offenses and offenders?
B.    Utilitarian Justifications – punishment is justified on the basis of the supposed benefits that will accrue form its imposition when compared to possible alternatives (is there a net benefit to society – forward looking)
1.     Beneficial consequences of Utilitarian punishment:
a.     General Deterrence – knowledge that punishment will follow a crime deters people from committing crimes, thus reducing future violations of right and the unhappiness and insecurity that would result
b.     Individual Deterrence – to deter an offender from repeating his actions, a penalty should be severe enough to outweigh in the individual’s mind the benefits of crime
1.     the deterrent value of punishment is based the nature of the offense, the type of offender involved, the perceived risk of detention, arrest and conviction and the nature and severity of the penalties threatened and imposed
a.     Incapacitation – society may protect itself from persons deemed dangerous because of their criminal conduct by isolating these people from society, by taking the criminal out of general circulation
b.     Reform – we “punish the convicted criminal by giving him appropriate treatment in order to rehabilitate him and return him to society so reformed that he will not desire or need to commit further crimes. The most effective ways involve psychological therapy, psychosurgery, educational and training programs. Reforms are costly
2.     Grounds Where Utilitarian Punishment would not be Justifiable
a.     Where it is groundless: where there is no mischief for punishment to prevent
b.     Where it is inadequate: where punishment cannot act so as to prevent the mischief
c.      Where it is unprofitable: where the mischief that punishment would produce would be greater than the measures preventing the criminal act
d.     Where it is needless:where the mischief may be prevented, or cease of itself, without punishment
C. Retributive Justifications
                        1. Retribution
a.     based on the principle that people who commit crimes deserve punishment
1.     the wrongdoer get his just deserts and the victim gets some personal satisfaction from seeing the justice done
b.     justification for punishment is found in the prior wrongdoing (Backward looking)
c.      based on the concept of free will
3.     Persons and Punishment
a.     it is only reasonable that those who voluntarily comply with the rules be provided some assurance that they will not be assuming burdens which others are unprepared to assume
b.     fairness/justice dictates that a system in which benefits are equally distributed there is a mechanism to prevent against maldistribution in the benefits and burdens
c.      therefore, it is just to punish those who violated the rules to restore equilibrium
d.     Justice – the punishing of individuals restores the equilibrium of benefits and burdens by taking from the individual what he owes, that is, exacting debt.
D.  The Penal Theories in Action
1.     Where a criminal demonstrates no desire to change his criminal behavior, a severe sentence is mandated, both as retribution for his crime and to prevent his recidivism
2.     No one knows the deterrent effect of any particular sentence, however, the likelihood that a particular sentence will deter others from committing similar crimes is a well established consideration. (Utilitarian)
3.     When sentencing under a statute forbids parole, a judge may impose either a life sentence or a specific number of years of imprisonment
4.     Incarceration is the punishment of choice of most legislators and trial judges in the US
5.     Note: No one life is worthier than another
E.    Proportionality of Punishment
1.     Constitutional Principles
a.     Utilitarian System
1.     punishment is proportional if it inflicts no more pain than is necessary to fulfill its deterrent goal
b.     Retributive System
1.     punishment should be proportional to the harm caused by the present occasion, taking into consideration the actor’s degree of culpability. In such circumstances, D “pays her debt to society.”
Example: Under so-called “recidivist” or “habitual offender” laws, a person is punished more severely for an offense if she is a repeat offender.
a.     Utilitarian analysis: this punishment may be proportional. Heightened punishment may deter would be repeat defenders from committing further crimes. Alternatively, such laws take recidivists who are presumably more dangerous people off the streets for an extended period of time, thereby protecting the community
b.     Retributive analysis: recidivist laws may not be proportional, because a wrongdoer should receive punishment in proportion to the crime just committed, not for past offenses for which she has already been punished or for predicted future crimes
a.     Eight Amendment – The 8th Amendment to the U.S. Constitution forbids the Federal government from imposing cruel and usual punishment and the Due Process clause of the 14th Amendment applies this to the states
1.     The 8th Amendment contains no proportionality guarantee. The 8th does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that by its excessive length or severity are greatly disproportionate to the offense charged
2.     What constitutes “grossly disproportionate” punishment?
a.     proportionality is inherently a retributive principle
b.     intentional crimes should be punished more severely than unintentional crimes
c.      to determine what is proportional, the social harm incurred plus the moral blameworthiness (state of mind) should be evaluated
d.     the death penalty is not invariably cruel and unusual punishment under the 8th Amendment
4.     A punishment is excessive and unconstitutional if it
a.     makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; OR
b.     is grossly disproportionate to the severity of the crime.
c.      attention must be given to public attitude concerning the particular sentence (history and precedent, legislative attitudes, and the responses of juries reflected in their sentencing decisions)
d.     does the punishment imposed serve any social purpose (measurably contribute to the goals of retribution and deterrence)
5.     The Supreme Court will not declare a sentence of imprisonment unconstitutional unless objective criteria demonstrates its disproportionality. Even if there are such criteria, it seems unlikely that the Supreme Court will invalidate very many non-capital offenses because of their disporportionality
6.     For crime classified as felonies, the length of the sentence actually imposed is purely a matter of legislative perogative. The S. Ct. has been extremely reluctant to second guess State legislatures or judges on the proportionality of their sentences.
a.      Coker v.Georgia – the court disallowed the death penalty for rape notwithstanding extremely aggravating circumstances because the crime was not sufficient to warrant the death penalty
b.     Edmund v. Florida – the court held that the death penalty was disproportionately cruel when applied to a minor participant in a felony murder who D neither personally killed, attempted to kill, intended that there be a killing, nor intended that lethal force be employed
c.      Rummel v. Estelle – the court upheld a life imprisonment for a man who had been convicted of his third nonviolent theft offense
A.  The Requirement of Previously Defined Conduct
1.     Ex Post Facto Clause: The ex post facto clause of the Constitution prohibits the legislature from enacting laws that would punish a person for conduct that was lawful at the time of its commission, or the increases the punishment for an act committed before the law took effect
2.     Due Process Clause: Due process clause prohibits a court from retroactively enlarging the scope of criminal law.
a.     The principle is justified on the basis that it is morally unjust to punish a person whose conduct was lawful at th

ary; involuntary acts may be threatening by they are not of the nature to require correction by the penal system
1.     a reflex or convulsion
Example: D walking down street has epileptic seizure, and as result of seizure D’s arm jerks back hitting the P. The striking of P was not a voluntary act. If the D knew before hand that he was subject to seizures, however, and reasonably put himself in a position where he was likely to harm others, this will subject him to liability (i.e. driving car)
2.     a bodily movement during unconsciousness or sleep
a.      most courts agree that amnesia (black out) itself does not constitute a defense. But if the D can demonstrate that at the time of the crime he was on automatic pilot, and was not conscious of what he was doing, it probably will be held to be involuntary
b.     many courts require the D merely to present some evidence of unconsciousness and the prosecution bears the burden of proving that the D was not acting consciously
3.     conduct during hypnosis or resulting from hypnotic suggestion
a. if hypnosis is self induced then considered a voluntary act
4.     a bodily movement that otherwise is not a product of the effort or determination of the actor
Example: Police took intoxicated D from his home out to the street, D not guilty of appearing in public while intoxicated, as no voluntary act
d.     an act is not involuntary merely because the actor does not remember doing it
e.      an act is not involuntary merely because someone pressured the actor to do it
f.      it is only necessary that the D’s conduct included a voluntary act; it is not necessary that all aspects of his conduct be voluntary
g.     Policy Rationale for voluntary act as a perquisite of criminal responsibility
1.     the requirement of the act assures that persons are not punished for bad thoughts alone, which would be a morally undesirable result in a society that values individual freedom
2.     blame and punishment presuppose free will, therefore a person does not deserve to be punished unless he chooses to put his thoughts into action
2.     Possession – only arises if the person voluntarily took control or knowingly receiving an object (weapons, drugs, stolen property)
a.      D must have dominion and control over the object
1.     may be direct (in hands or on person)
2.     may be constructive (located on the property over which the D has dominion and control)
3.     may be joint (2 or more persons)
4.     may be vicarious (D is responsible for someone else)
b.     D must have conscious possession (prosecution move prove that defendant had conscious possession (i.e. drugs) if not, there can be no conviction)
1.     Common Law: conscious possession requires that the D be in possession of something (D who has a package but does know that it contains drugs is guilty of possession)
2.     MPC: defines possession to mean that if the person 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
Note: It is not necessarily required that the D have been aware of the object’s illegal nature or contraband (i.e. know that you have marijuana, not necessary to know that it was illegal).
A D may never be convicted of merely having a certain status or condition, rather than committing an act.
3.     Omissions (“Negative Acts”)
a.      Definition – Failure to act may be committed either by affirmative action or by failure to act under circumstances giving rise to a legal duty to act