Criminal Law I, Nussbaumer
Winter 2013
Theories of Punishment
v Utilitarianism
1. Seeks to accomplish the greatest good for the greatest number. More specifically, this theory looks forward to the expected consequences of punishment, and argues that punishment is justifiable to the extent that it will reduce future crime.
2. This theory views the individual defendant more as a means to an end, and it focuses heavily on deterrence — punishment is justifiable to the extent that it can be expected to deter the defendant and others from committing future crimes. Or, conversely, withholding punishment is justifiable if this incentive/reward will encourage the defendant and others to avoid future criminal behavior. This prong of utilitarian theory assumes that individuals think about the potential consequences of their actions before they act. This is an assumption that some people question, at least in certain contexts.
3. Utilitarian theory also emphasizes rehabilitation as a means of reducing future crime. This rehabilitation prong is premised on the assumption that individuals who break the law can be reformed through treatment, education, job training and other means. Some people question this assumption, at least with regard to certain kinds of offenders. Utilitarian theory may also incorporate a retributive aspect, by emphasizing the need to channel the human instinct for revenge through the criminal justice process in order to reduce future vigilantism.
4. This theory focuses on Deterrence. Punishment is justifiable to the extent that it can be expected to deter the others from committing future crimes. “Seeks to accomplish the greatest good for the greatest number.”
v Retributive (“just desserts”) (looks at individual- subjective)
1. This theory looks backward to the offender’s conduct, and argues that punishment is justifiable because the individual has broken the law, regardless of whether punishment or withholding punishment will reduce future crime. Punishment is viewed as the offender’s “just desserts,” and as morally justifiable on that basis alone. This theory focuses on the particular defendant’s moral culpability, not on whether punishment will deter the defendant or others from engaging in similar behavior in the future.
2. Incapacitation can be justified on either utilitarian or retributive grounds. From a utilitarian perspective, incapacitation by imprisonment or otherwise can prevent the incapacitated individual from committing future crimes, can specifically deter that individual from committing future crimes, and can generally deter others from engaging in similar behavior. From a retributive perspective, the punitive aspects of incapacitation are a part of the offender’s just desserts.
3. This theory focuses on D’s moral culpability. It looks to the offender’s conduct, and argues that punishment is justifiable because the individual has broken the law, regardless of whether punishment or withholding punishment will reduce future crime.
*In the real world, these two theories often overlap in the development of the criminal law. Punishment can serve both utilitarian and retributive ends. Whether one theory predominates often depends on the context and on the tenor of the times.
Corpus Delicti Rule
v 2 Elements
· Death of a living human being
· Criminal agency- not as the result of an accident, natural causes, or suicide.
v Cannot use an out of court confession in court, until you first prove Corpus Delicti by other means.
– The rationale behind this rule is that we are not totally comfortable with the trustworthiness and reliability of out-of-court statements which the defendant could have been coerced or tricked by the police into making.
– This rationale can be extended to other contexts in which we have concerns about the trustworthiness and reliability of the defendant’s out-of-court statements.
· Ex. Hicks v. Sheriff. (case in which the prosecution used a cellmate’s affidavit to try and prove the corpus delicti) The court concluded that this statement could not be considered in determining whether the corpus delicti had been established because cellmate’s have much to gain by making statements to the police, which raises concerns about the trustworthiness and reliability of the statement.
· Generally speaking, even if the facts of two cases are different, the rule will be applied so long as the principle or rationale behind the rule still applies. But if the facts are different and the principle or rationale behind the rule does not apply, generally speaking courts will create an exception to the rule.
– The defendant’s in-court statements are admissible to prove the corpus delicti because protections are in place (such as the right to counsel, the presence of the public, and the presence of a judge) that make us feel comfortable that voluntary statements made by the defendant against the defendant’s own interests (like the mom who admitted in open court that she dropped the baby off the bridge) are trustworthy and reliable.
– Generally speaking, if the conditions or concerns that led a court to adopt a rule change over time, t
, etc)
o Throwing stones from roof of tall building onto busy street
o Piloting a speedboat through a swimming area during busy summer
o Swooping airplane very low over car on the highway
o Driving car at very high speed along a main street
b.Without Justification, provocation, or excuse
o If can prove provocation- voluntary manslaughter
Examples of Depraved heart Murder
· Ex. Banks v. State (shot gun at front and back of crowded train) Banks fired what he knew to be a working and loaded firearm into parts into parts of the train that he knew were occupied, the court held that he was still guilty of murder even though he had no intent to kill anyone on the train. He consciously disregarded a very high risk and a death resulted, and the court said that was sufficient to convict him of common law murder.
· Ex. Edwards v. State- Edwards went to bar and continued to drink, with knowledge that he was going to drive home on a heavily traveled high way. He knew that this conduct would be directly dangerous to human life. He drove down highway and hit a cop. à Intoxication is not a defense when claiming depraved heart murder, because it would open the floodgates.
· Non Ex- Commonwealth v. McLaughlin- D drove car at night down highway (there was dispute about whether headlights were on, use of horn, and intoxication) and hit 2 people and baby, who were walking on high way, because of poor conditions of sidewalk. After accident he went back and dove them to hospital, therefore it cannot be found the he either purposely, recklessly, or wantonly drove his car upon them and was not convicted of murder. He was convicted of involuntary manslaughter
· Non Ex- State v. Hardie- D aimed what he thought was an inoperable firearm at his neighbor and pulled the trigger, the prosecution did not even attempt to charge him with murder because it could not be proved that he consciously disregarded a very high risk. Involuntary Manslaughter.
· Non Ex- shooting into a box car or abandoned cabin with no signs of life. (no lights, no people, etc)
