Rose_Criminal Law_Fall_2010
Criminal Law Textbook Outline + Class Notes
· Justifications for punishments
o How is criminal law diff. from civil?
1. Civil punishment is monetary or coercion bet’n two private parties; Criminal punishment is imprisonment or death and is bet’n the state and a private party
2. The state is very powerful, so the theory is that it is better to let 10 ppl go free than to put away one innocent person
· This idea is set out in the Constitution; also a higher burden of proof than in Civil
o Roswell Gilbert Case
o General Deterrence
1. Punishment deters crime through intimidation
2. Bentham Model- Humans weigh the possible consequences against the possible gain to determine what action to take
· Used to justify deterrence of people in general
3. Criticism: Won’t work where justice is not swift nor certain; person has nothing to lose so jail is a step up; criminal is acting out of passion, not calculating; corrupting influence of incarceration may encourage more crime
o Special Deterrence
1. Someone who has committed the crime will not do it again b/c she has already experienced the punishment
2. Deters the individual
o Retribution
1. Based on revenge (payback) or expiation (must repay what one took from society)
2. Based on an underlying moral principle arbitrarily assigned by the person doling out punishment.
3. Empirical evidence does not suggest that retribution works as a social outlet for anger or as a deterrent.
o Rehabilitation
1. Desires to fix the person being punished
2. Criticisms:
· Economically- Don’t have the funds to treat
· Psychologically- We don’t know how to treat many ppl
o Immoral to fundamentally change ppl
o The system needs fixing, not ppl
· Whose standards do we use to determine when someone is “fixed”?
o Isolation/Incapacitation
1. Locking someone up to keep them from committing more crimes (or executing)
2. Critics: ppl can be blameworthy but probably won’t commit crime again, so it doesn’t really fulfill its function in their cases.
3. Becomes opposite sometimes: ppl less likely to repeat (murderers) are isolated longer that those more likely to repeat (theifs/fraud)
4. Cannot predict crime- so how long do we lock ppl up for?
o Socialization
1. Social institutions (church, family, school) shape our reality and criminal law is one of these institutions
· Socializes us to know what is right and wrong when others are punished.
o Integrated Theory of Punishment
1. Crime prevention is a necessary but not sufficient justification for punishment
2. Blameworthiness is a necessary but not sufficient justification of punishment
· Because of the moral ambiguity of punishment even when taken in terms of the narrow utilitarian objective of reducing crime; because the utilitarian theories do not yield clear answers
· Punishment of the morally innocent (those without blame) would undermine socialization the line between right and wrong would be challenged when people who were acting rightly were punished.
· It is not a sufficient condition because anything other than an essentially preventive view of the function of the criminal law is “the merest savagery”. Also not everything that is blameworthy is a justification for punishment.
· It rejects the retributive position insofar as that position views the infliction of punishment on a blameworthy offender as a sufficient justifying condition; it also rejects the behavioral branch of the utilitarian theory insofar as that position views the tendency of punishment to prevent crime by reforming or incapacitating the offender as a sufficient justifying condition
· It accepts the classical utilitarian theory as the proper starting point for a justifying theory but views utilitarianism as inadequate to serve all the purposes that ought to be served
· PUNISHMENT IS LAMENTABLE “BECAUSE IT INFLICTS SUFFERING IN THE NAME OF GOALS WHOSE ACHIEVEMENT ARE A MATTER OF CHANCE
o Deterrence is only utilitarian goal of punishment that affords a generalized a priori justification for the infliction of punishment, yet complete acceptance of deterrence is problematic (issues of its effectiveness etc)
o Intimidation, incapacitation, and rehabilitation are all partial and fragmentary goals whose relevance in a case is always at issue
3. Tension bet’n freedom and security
4. There is an on-going tension bet’n blameworthiness and crime prevention
· The limit to crime prevention is blame- helps promote human autonomy and maximize human potential
· Blame is not enough b/c then it would be a retributive system only
· Self defense is a good example of this tension
· Actus Reus (one of the ways that the system operates to punish only blameworthy people, so is mens rea. Defenses and excuses are other ways).
o POSSIBLE ACT SUBCATEGORIES
1. CONDUCT ELEMENTS: like forging a check. Actus reus elements that
2. PROHIBITIVE RESULT ELEMENTS: like someone having died in a homicide, or destruction of property
3. ANTENDANT CIRCUMSTNACE. Example: burglary. Breaking in is the conduct but AT NIGHT is the attendant circumstance.
o Three ideas that must be present
1. There must be an act
· Why not thoughts? there is no harm, impossible to prove, and everyone has bad thoughts
2. It must be voluntary
· Rationale: you cannot deter what is not voluntary, can’t deter a sneeze/reflex. Also no need to isolate in prison the person because theres no blameworthiness, no rehabilitate in prison.
3. It can be of omission or commission
· Where there is a legal duty to act. Typically a duty to act would be one based on CONTRACT (PESTINIKAS). Duty based on statute, like selective service act. Duty based on status(parent child husband wife). Duty based on an assumption of care(I’ll take care of this everyone go away then I don’t). Duty to act because person took on the peril (Cali case, he did not start the fire but once the fire was underway and he thought about it he decided to let it burn. There he did an act, failed to put out the fire with the intent to defraud and he failed to put it out because he had the duty to put it out since he CAUSED it albeit accidently!!! His act of commission in starting the fire was an accident with no mens rea to defraud the insurer, but his act of omission in failing to extinguish the fire he had started was done with an intent to defraud the insurer.
· Few omissions are feared. Also tradition of individualism says that there has to be a liability to act. Don’t want a law to encourage people to act all the time, so there are only a limited amont of situations.
o An act is an exertion of the will manifested in the external world or a failure to act where there is a legal duty to act
1. An act must be voluntary, meaning there must be an element of control
· If an act isn’t
ould appear that the defendant intended to do the very act with which he is charged, or that it was the necessary consequence of some other felonious or criminal act in which he was engaged, or that having a probable result which the defendant foresaw or ought to have foreseen.” HIS IS THE OBJECTIVE STANDARD
6. Fitzgerald is broader and will allow for more convictions than Barry. Under Barry’s definition the government must prove that the defendant wanted the ship to burn(Faulkner) or if he was AWARE that by lighting the match under these circumstances it would burn. Fitzgerald would agree with both of those but he extends it and would allow you to convict defendant even if defendant didn’t realize that he would most likely burn the ship, if the jury can find that even if he did not realize the ship would burn a reasonable person would understand that a ship should burn and thus he should have realized that the ship would burn.
7. Hard question is how you prove what is in someone’s head? You prove what was in his mind with CIRCUMSTANTIAL EVIDENCE.
8. In assessing the circumstantial evidence that we are using to prove the subjective state of mind of the defendant the jury is going to decide whtehr the circumstantial evidence tends to show the facts youre trying to prove. Different then an objective standard. ObStandard says that all the government has to prove is not that the defendant was aware that the ship will burn but that a reasonable person would have been aware
o Yermian – jurisdictional elements of a crime do not require mens rea
1. In general mens rea applies to all elements of a crime
2. There is no extra punishment because of the jurisdiction, so there is no need to prove mens rea; it is a procedural element
3. Principle of lenity- Where a statute doesn’t say, it should be interpreted in favor of the defendant. Because in the end he will be punished, the state should have to prove completely. He should get the benefit of the doubt.
· How do we deal with the situation that has one mens rea terms or all. The assumption is that the mens rea term applies to all the factual elements. Then we get to Yermian with 2 factual elements (lying, to a federal agency). Mens rea isn’t applied to both. He has to know it’s a lie but not that it’s a federal agency. “Where one of the elements is a jurisdictional element, the normal mens rea doesn’t apply there.” The jurisdictional element is there only to show why congress. Not to say that it’s worse to lie to the element, it’s not part of the bad behavior for which the punishment is coming!!!
4.
· Lack of Mens Rea Due to Intoxication
o General intent crime: description of the act and the mens rea accompanying the act. No description of intent to commit a further harm
Crimes that have the actus reus element
