Criminal Law 2003
Professor Dillof
I. Principles of Punishment – Government acts to disadvantage
A. Theory – protect society at large, discourage criminal conduct
1. Utilitarianism – maximize net happiness; greatest good for greatest number; norm reinforcement;
a. General deterrence – convince the general community to forego criminal conduct
b. Specific (or individual deterrence) – deter future misconduct; incapacitation, intimidation, and rehabilitation
c. costs/benefits to society – economic, loss of a family member, individual suffering, worsening individual
2. Retributivism – theory of desert; punished to the extent of the crime, humans possess free will;
a. hurt him back, retribution
b. Positive – punish as much as deserved
c. Negative – punish no more than deserved
d. punish intrinsic value
e. Desert = Responsibility * Harm
3. Mixed Theory
a. punish to extent of max social utility (Utilitarianism)
b. but no more than deserved (negative Retributivism)
c. alternatively – punish the lesser of the amounts recommended by both theories
B. Applications
1. Dudley & Stevens Queen’s Bench 1884 p.47;
· interested in consequent of punishment, not judge act;
· deter them or others from cannibalism
2. Michigan is a Common Law state; Michigan Penal Code – murder p. 219
3. Most jurisdictions are mixed, leaning in one direction or another
C. The Function of the Prosecutor – seek justice, not merely to convict
Anatomy of an Offense : 1. Actus Reus, 2. Mens Rea, 3. Attendant Circumstances; MPC § 1.13 (9); Conduct (includes mens rea), result and attendant circumstances
II. Actus Reus (Bad Act) – physical or external part of the crime; conduct and harm defined by offense; crimes of result (prevent outcome), conduct (prevent dangerous behavior)
A. Voluntary Act – act of will, what is left over after subtracting fact of act;
1. CL voluntary – act
2. MPC voluntary – act with intent, §§ 2.01, 2.02, 2.05, 1.04(5)
3. Martin p.112 1944 CL; public drunkenness
· Lack of voluntary in statute, construe in light of criminal goals and principles;
· Voluntary is common criminal presumption
· Lack of voluntary b/c conduct against his will (cops)
· Retributivist would object to punishment
· Utilitarian would see the cost outweighing the benefit
4. Utter p.114 1971 CL; court reads voluntary into statute
· Act – exercise of will,
· Act technically means a voluntary act
· MPC § 2.01(2) what voluntary acts are not
· p. 117 N3 coerced voluntary = involunt
v. Creates risk of (further?) harm
5. MPC § 2.01(3)(b) duty to perform imposed law
6. Why should criminal law treat acts and omissions w/ same costs/benefits different? Utilitarian approach – no difference, convenience
i. Omissions ambiguous
ii. Line drawing problems
iii. Intervention makes matters worse
iv. Requiring acts limits individual freedom
v. Coordination – not all law involved with morality, i.e. driving
7. Distinguishing Acts from Omissions
i. Barber Cal. 1983 p.124 doctors removed life support, murder charge CL
· Omission – returning person to the status quo
Act – moving person below the status quo