– Where there is “punishment,” there is a Criminal Law.
– Not what the law is doing… but, why the law is doing it.
– Retribution/Deterrence leads to Punishment. Punishment leads to Criminal Matter. Criminal Matter leads to Criminal Procedures and Constitution Protections.
– Legal Theory: principles and justifications that underlie an area of law.
Crimes distinguished from civil wrongs?
– It is the judgment of community condemnation.
– After condemnation comes the threat of imposition of consequences (punishment)
– Moral Condemnation
THEORIES OF PUNISHMENT
– The right or just act is the one that maximizes net social happiness or welfare. Ex: driver keeps speeding. If it means he needs to be executed in order to save more lives, then he is executed.
– Social benefit – Social Cost = Net Welfare
– Reduces Crime through Punishment:
– Specific Deterrence: “D”s punishment is meant to deter him from committing another crime in the future by intimidation.
– Incapacitation/Isolation: jail
– Rehabilitation: prefer to use the correctional system to reform the wrongdoer rather than to secure compliance through the fear or “bad taste” of punishment.
– General Deterrence: “D” is punished in order to convince the general community to forego criminal conduct in the future… example for future criminals.
– Expressive Theory: educate/establish and re-enfor
CB Pg. 1-19
Legislatures are the primary authors of defining criminal conduct
Legislature is limited by the constitution
Laws are interpreted and applied by various other officials.
Ambiguities of the law are handles by “presumptions”.
Model Penal Code- created by the elite in the law. It fills in the gaps.
Guarantee the right to the trial by jury; 6th Amendment,
Duncan v. Louisiana
– Costs of Punishment:
– Social: costs of confinement; lost potentially productive person
– Individual: loss of welfare.
– Punishment is bad, unless it is likely to prevent a greater amount of pain in the form or crime.
– Based on “just desserts: Punishing an actor because he deserves it (when he freely chooses to violate society’s rules) and also because he is entitled to it.
– In this was he rejoins society afterwards with a clean slate.
– Punishment is inherently valuable.
– Restores moral balance.
– Fair to treat people as they have treated others
– Vindicates the victim, honors the criminal.
– Wrongdoer should be punished even it does not result in a reduction in crime.
Forms of Retributivism
– Assaultive Retribution: because the criminal has harmed society, it is right for society to hurt him back… gratifies the passion for revenge and prevents private vengeance… it is morally acceptable to hate the criminal.
– “Protective Retribution” punishment is inflicted because it is a means of securing moral balance in the society. Criminal owes a debt to society. The wrongdoer has a right to be punished.
2 differences between U and R:
1) R looks backward in time and solely decides punishment based upon the previous, voluntary commission of a crime. In contrast, U looks forward, they care about the past only when it helps predict the future and they do not advocate punishment unless they believe it will provide an overall social benefit.
2) Premise of U is that people are generally hedonistic and rationale calculators… R focus their view that humans generally possess free will or free choice and therefore may justly be blamed when they choose to violate society’s mores.
Denunciation (Expressive Theory):
– Hybrid of U and R.
– Punishment is justified as a means of expressing society’s condemnation and the relative seriousness of a crime.
– Why denunciation?
– Prevents personal vengeance.
– Maintains social cohesion.
Mixed Theories of Punishment:
– Limiting Retributivism
CB Pg. 92-113
Goals of Criminal Law: 1) Protect due process, 2) ensure that there are no retroactive convictions, 3) preserves the right to be informed of what a crime is.
– (1) Punish with the range deserved
– (2) Choose point in range that maximizes social utility.
– “Hybrid” (Other):
– (1) Punish to the extent that maximizes social utility. But,
– (2) Never punish more then deserved.
STRUCTURE OF AN OFFENSE: CL vs MPC
– Common Law:
– Actus reus elements
– Conduct (and/or) results
– Attendant circumstances
– Mens reus elements
– Mental state
– Conduct Elements
– Mental State
– Attendant Circumstances
– Result Elements
– Conduct: an action or omission and its accompanying state of mind, or, a series of acts and omissions.
– Elements of an Offense: such conduct or such attendant circumstance or such a result of conduct as:
– Is included in the description of the forbidden conduct in the definition of the offense, or
– Establishes the required kind of culpability, or
– Negatives an excuse or justification for such conduct, or
– Negatives a defense under the statute of limitations, or
– Establishes jurisdiction or venue
Parts of an offense:
– Actus Reus
– Attendant Circumstances
– Mens Rea
BURDEN OF PROOF
– Prosecutor has burden of production regarding elements of the crime charged (CL & MPC)
– D has burden of producing evidence pertaining to any affirmative defe
– Banks LOOK TO THE HARM THE STATUTE IT TRYING TO PREVENT
– Muscarello v. US LOOK TO THE GENERAL UNDERSTANDING OF THE WORD
Problems in Statutory Interpretations
– Flores-Figueroa v. United States — From this case, we are studying the way in a CL jurisdiction courts interpret a statute in order to determine what the mens rea requirements are.
– Does the statute requires the Government to show that the defendant knew that the means of id they unlawfully transferred, possessed, or used, in fact, belonged to “another person.” Federal criminal statute forbidding “aggravated identity theft” imposes a mandatory consecutive 2 year prison term upon people convicted of certain other crimes, if, during or relation to the commission of those crimes, the offender “knowingly transfers, possesses, or uses unlawfully a means of id of another person.”
– Black Law: Courts ordinarily read a phrase in criminal statute that introduces elements of crime with the word “knowingly” as applying that word to each element.
– All material elements are important; read statute as read in ordinary English
CL 5 Step Process of Interpreting a Statute/Rule:
1) Look at provision at issue.
– Employ ordinary English grammar.
2) Look at related provisions
– Assume language used consistently
3) Look at other laws
4) Look at legislative history and purpose
5) Look at practical issues of proof.
– Physical/external aspects of a crime. External elements that make you accountable for the crime.
– Conduct of perpetrator
– Result of the conduct of perpetrator
– Offenses can be conduct offenses, result offenses, or both conduct and result offenses based upon what you need to do to commit that offense.
Social Harm: Destruction of some socially valuable interest
o Result Crimes: The law prohibits an unwanted outcome. (Murder, arson)
o Conduct Crimes: The law prohibits specific behaviors- whether or not harm ever comes about.
o Attendant circumstance (MPC §1.13(9)): a fact that exist at the time of the conduct which is required for the conduct to be an offense. When it is not conduct, result or state of mind. “it is an offense to drive an automobile in an intoxicated condition”– AC is “an automobile” and “in an intoxicated condition.”