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Criminal Law
Wayne State University Law School
Dillof, Anthony M.

Penal Theories of Punishment

1) Utilitarianism
a) Goal: what is right to do is what is good for society as a whole; act to produce the greatest good for the greatest number of people; purpose of all laws is to maximize the net happiness of society
b) Cost: cost on society to defend himself, the society at large… compared with benefit of crime prevention (Benefit (# of thefts*$ per theft) – C (cost of prevention) = net benefità the higher the better)
c) Punishment: justified only to the extent it increases society’s net utility/welfare
d) Strategies: preventing crime
i) Specific deterrence – Δ has been through punishment and knows that punishment is for wrongdoing
ii) Incapacitation – Δ is in jail and unable to commit crimes against those not in jail
iii) Rehabilitation – Δ’s values are changed so they don’t want to commit crimes anymore
iv) General deterrence – Δ’s punishment works as a deterrence for society as a whole
v) Norm Reinforcement – Δ’s crime shows society that crime is bad (deterred by crimes of others)
2) Retributivism
a) Goal: punishment is justified when deserved; free will and choice make everyone accountable for actions
b) Components:
i) Positive component – punish at lease as much as deserved
ii) Negative component – punish no more than is deserved
c) Punishment has an intrinsic value
d) Moral desert allows for those who commit offenses to be punished
e) Harm based is objective (reasonable person)
f) Intent based is subjective (your actions under the circumstances)
3) Mixed Theory
a) Punishment: combine punishing to the level that maximizes social good (utilitarianism) with the view of punishing no more than is observed (negative retributivism)
b) Overall: punish the lesser of the amounts recommended by both parties

Common Law and the MPC

4) Common Law: judicially developed; received in US; inconsistent, incomplete, and redundant
5) MPC: completed in 1962; completely statutory (compiled by looking at the common law to compile the law into one document that includes the offense, defense, and other necessary material)
a) No state has completely adopted the MPC
b) Most have adopted portions

Dillof’s How to Interpret a Statute

o Read the statute
o Look at the statute’s history, comments, and legislative intent
o Look at surrounding statutes

§ 1.04. Classes of Crimes; Violations

(1) An offense defined by this Code or by any other statute of this State, for which a sentence of [death or of] imprisonment is authorized, constitutes a crime. Crimes are classified as felonies, misdemeanors or petty misdemeanors.
(2) Felony = if designated in Code or if persons convicted thereof may be sentenced [to death or] imprisonment for term that, apart from an extended term, is in excess of one year.
(3) Misdemeanor = if designated in Code or in statute other than this Code enacted subsequent thereto.
(4) Petty misdemeanor = if designated in Code or in statute other than this Code enacted subsequent thereto or if it is defined by a statute other than this Code that now provides that persons convicted thereof may be sentenced to imprisonment for a term of which the maximum is less than one year.
(5) An offense defined by this Code or by any other statute of this State constitutes a violation if it is so designated in this Code or in the law defining the offense or if no other sentence than a fine, or fine and forfeiture or other civil penalty is authorized upon conviction or if it is defined by a statute other than this Code that now provides that the offense shall not constitute a crime. A violation does not constitute a crime and conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.
(6) Any offense declared by law to constitute a crime, w/o specification of grade or of sentence authorized upon conviction, is a misdemeanor.
(7) An offense defined by any statute of this State other than this Code shall be classified as provided in this Section and the sentence that may be imposed upon conviction thereof shall hereafter be governed by this Code.

Parts of an offense

Common Law

Model Penal Code

(1) Mens rea – intent (guilty mind, “intentionally”)
(2) Actus reus – bad action (physical/external part of crime)
[Attendant circumstances – condition that must be present, in conjunction w/ prohibited conduct or result, in order to constitute a crime – part of AR] Crimes of result – killing; Crimes of conduct – speeding

§1.13(9) – Elements of an offense
(i) Conduct (includes mental state of mind/culpability)
(ii) Attendant circumstances
(iii) Result of conduct

Actus Reus

o An act or omission that constitutes an offense or leads to results that are an offense.
o Dillof: An act that is done with a purpose. Mere thoughts are not punishable as crimes.
o Moral obligations do not necessarily create legal duty, if they do not there is not duty to act or omit

Common Law

Model Penal Code

§ Voluntary act is an act done with a purpose that causes social harm. Purpose does not have to relate to the result. [Martin – drunk in cop car on a highway] o Acts are still voluntary if induced by intoxication that has been voluntarily induced [Utter – drunk farther kills son]

§ Omissions – withdrawal or failure to provide benefits; breach of duty to act where physically able in; permits or allows a harm to occur [Barber – removal of life support from dying patient]

When there is a duty to act:
1. Status relationships (husband/wife, parent/child) [Beardsley – not status relationship; no legal duty to care for woman you spent the night with when she ODs] 2. Contractual duty or relationship [ex: lifeguard] 3. Prevented others from aiding – omission after an act
4. Creates risk of harm (even innocent) [ex: motorist hits pedestrian, needs to get help] 5. Non-criminal statute creates duty [ex: teacher not reported child abuse]

General § 2.01(1)
No person may be convicted of a crime in the absence of conduct that “includes a voluntary act or the omission to perform an act of which he is physically capable.”
§ §1.13(2) – “Act” is defined as a bodily movement whether voluntary or involuntary.

Voluntary act §2.01(2)
Doesn’t define voluntary but tells you what is not voluntary
§ Reflex or convulsion [Decina – voluntary if you know you are subject to seizures] § A bodily movement during unconsciousness of sleep
§ Conduct during hypnosis or resulting from hypnotic suggestion.
§ A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.

Omissions §2.01(3)
§1.13(4) “omission” – failure to act
§2.01(3) – Liability when duty to act (imposed by law)[same as CL duties]; omission is made expressly sufficient by the law defining the offense
***Acts and omissions can be the same [ex: continuing to walk past a drowning person à act and omission]

Possession §2.01(4) – possession is an act

Mens Rea

o Definition: culpable state of mind required for liability for an offense
o Common law intent = MPC purposely or knowingly
o You are deemed to have a purpose for doing something even if your purpose in doing so is conditional [I’ll do it if…]

Common Law

Model Penal Code

“Intent” to do or cause X means
§ Conscious objective do or cause X (purposeful), or
§ Virtual certainty of doing or causing X [ex: Δ must be aware X will happen] (knowingly)
o Result Crimes: conscious object + results are virtually certain, even if he doesn’t want them to occur
§ ex: you are substantially certain to kill a pedestrian while street racing, but you have no purpose for doing so
§ You can infer natural and probable consequences from the surroundings

General intent v. Specific intent
General – no particular MR is set out in definition of crime; awareness of all factors constituting crime. Prosecutor need only prove a morally blameworthy state of mind:
· P/K/R engaging in AR of offense charged, or
· Not P/K/P engaging in AR of offense charged, and
o P/K/R engaging in the AR of another crime
o [or, P/K/R engaging in an immoral act] or
o Unreasonable belief no AR of offense

Specific –definition of offense specifically requires proof of particular mental state

Actor guilty if he possessed required MR
Ex: Law: larceny = taking w/ intent to keep à thus, if you intend to give it back = no larceny

§ Has knowledge or
§ Substantial certainty or
§ High probability, or
§ Willful blindness – “deliberate ignorance”: culpability may be based on Δ’s failure to take obvious and simple steps to confirm or dispel possible suspicion

Willingly (= knowingly)
§ Synonym for intentional
§ Act done with a bad purpose or evil motive
Presence of “willful” in def of offense à allows mistake of law to be basis for pardon if Δ did not “intend” to break law

Negligence — Actor takes an unjustified risk of causing harm; Criminal negligence is a gross deviation from norm

Recklessness — Substantial and unjustified risk of which Δ was aware and disregarded

Malice — Intentionally or recklessly causes social harm prohibited by offense

How to determine what the MR if it is not listed:
1) Look at the text, punctuation, etc.
2) Compare to other sections
3) Look at the legislative history (compare to prior versions to see if words were taken out; consider in light of legislative statements of purpose)

· Flores- “knowingly” is naturally read as applying to all subsequently listed elements of crime, not a per se rule, still need to do 1)-3) (above)

§2.02 – elemental approach

It is an offense for a person to
· P/K/R/N engage in specified conduct (C)
· P/K/R/N causing the specified result TRANSFERRED
· Where there is P/K/R/N w/ respect to specified AC

§2.02(1) Not guilty, unless act w/ required culpability for each material element of offense [doesn’t apply to violations]

§2.02(2)(a) Purposely – “intentionally” or “with intent”
§ Conduct or result crimes: a person acts purposely if it is his conscious object to engage in

f item regulated is potentially harmful or injurious then it is likely to be a public welfare offense [Staples – semi-automatic weapon] § Cts say you don’t need absolute strict liability in public offense crimes à Δ must know that he is dealing w/ something dangerous [only then, cts can apply strict liability] Non-Public Welfare: malum is se [inherently wrongful] Some MR required [Garnett – statutory rape by a mentally infirm – no MR necessary]; result in severe punishment
§ Some MR required, but MR not required w/ respect to at least one aspect of AR (like AC) à statutory rape (age is AC)
§ Ex: w/o a permit, knowingly discharging a pollutant

MPC generally rejects strict liability
§ §2.05(1) – Strict liability only attaches to violations or acts punishable by fine or forfeiture.
§ No strict liability for misdemeanors or felonies under MPC.
§ If strict liability is imposed, proving a degree of culpability is sufficient

Strict liability for statutory rape is age 10

Mistake of Fact [failure of proof claim, defense only if mistake negates the required MR of crime]

Common Law

Model Penal Code

Mistake regarding element of offense = defense when, in light of the mistake, Δ lacks required MR for offense

1. General Intent: statute is silent about the MR necessary à morally blameworthy state of mind is the standard
§ Hard to use MOF b/c crime requires any blameworthy state of mind
§ Requires mistake to be based upon reasonable grounds
§ [Criticism about not allowing unreasonable mistakes to acquit à unreasonable mistake is like negligence; don’t usually convict general intent crimes for negligence] § If reasonable mistake, then no liability (if reasonableàno MBSMàno liability)

2. Specific Intent: statute says that you must know something, and you don’t à “Good faith” (actual) mistake of fact regarding existence of an element, whether reasonable or unreasonable, is defense for crimes of specific intent. [Navarro – took wood blocks] *** “good faith” ≠ willfully blind belief

§ Moral wrong doctrine: Intent to commit immoral act gives requisite MR for related, but unintended, outcome
§ I.e. Reasonably mistakenly believe that 14YO is 18YO and take her out of possession of parents, if taking 18YO from parents is immoral, can convict
§ Legal wrong doctrine: Intent to commit illegal act gives requisite MR for related, but unintended, outcome
§ Believe you are committing one offense, but circumstances show you are committing more serious offense, can be convicted of more serious crime
§ Both only apply to general intent crimes

§2.04(1) – Ignorance or mistake
§ Ignorance/mistake as to matter of fact or law = defense if:
o If ignorance or mistake negates some required mental state [P/K/R/N] required to establish a material element of the offense; or
o The law provides that the state of mind established by such ignorance or mistake constitutes a defense
[If Δ doesn’t have required mental state b/c of mistake, Δ not liable] · I.e. under (1)
o P/K required, mistake that is reasonable, reckless, negligent is defense
o R required, reasonable, negligent mistake defense, but reckless mistake is not defense
o N required, only reasonable mistake a defense (not negligent mistake, = the required MR)

§2.04(2) – Exception:
§ Mistakenly believing you are committing another crime is no “defense” – does not affect liability but may eliminate or reduce the term of your conviction (in what you may be convicted of)
§ Punishment is one of the lesser offense
o Ex: think you are transporting coke, but you transport pot à liability for pot, punishment for pot
o Ex: think you are transporting pot, but you transport coke à liability for coke, punishment for pot

§ A belief that conduct is not a legal offense is a defense if Δ acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in a statute or other enactment