HISTORY
Common law = judge made law. No criminal code back in England. First parliamentary passed crimes were embezzlement, statutory rape, etc
Traditional English common law, judges decided what the law was on a case by case basis, but this is incompatible with US Constitution where charge brought against a D must be for a crime that is defined and knowable.
Purpos Purpose of criminal law is to establish a common set of acceptable behavior for society to live by
In many states w/ common law heritage the statutes that have been adopted may require knowledge of the common law to understand.
MPC (Model Penal Code) very few states adopted: NY, HI. Not going to spend a lot of time on the MPC. MPC has a different emphasis than the common law.
Terms to know (3 sets of two)
1) Malum in se: wrong in itself/inherently bad
a) Something that is wrong across the board—everyone just knows some acts are wrong, rape, murder, burglary
2) Malum prohibita: wrong because society says so
a) Prostitution, gambling
b) Typically strict liability crimes
i) Socially acceptable because the penalty is usually limited to fines
3) Mens Rea: (criminal) mind—wrongful mental state—culpable mental state of mind, how evil was the person in his mind? Mens rea is the only thing that distinguishes between the different types of unlawful killings
a) Not necessarily state of mind: generally the term refers to the person’s mental state, either intent or knowledge
i) Negligence and recklessness: if a person is acting with this frame of mind it is often thought to be acting w/o a conscience
ii) Strict Liability: Not all crimes require a particular mens rea, these are called strict liability crimes. Crimes that fall into this category are generally considered ‘public welfare’ crimes
(1) parking meter violation, speeding tickets etc—generally only punishable by a fine
4) Actus Rea: physical act associated with a crime—wrongful act
(1) crimes need mens rea in addition to an actus reus. Sometimes D is strictly liable for a crime and no mens rea is required (e.g. Statutory rape). Accident is not the same as mens rea. Often easy to prove the actus reus but harder to prove mens rea. Therefore, inferences are important. Intent can be inferred by D’s actions. Intentionally using a deadly weapon, jury can infer the intent to kill.
Bretz: Remember we can always infer the intent to kill from the use of a deadly weapon.
Drunk driving: presumption if you are 0.8 that you intended to commit the act.
Presumptions are MANDATORY inferences are PERMISSIBLE and are based on circumstantial evidence.
5) Felonies: Anything punishable by more than 1 year is a felony. At common law only penalty for felony was death by hanging.
6) misdemeanors: anything punishable by incarceration for 1 year or less.
What Coker teaches us: the sentence must fit the offense AND the offender. 8th Amendment forbids cruel and unusual punishment. Coker v. Georgia, found that execution is not allowed for rape
Goals of criminal law: Punishment, rehabilitation, deterrence, primary purpose today is incapacitation: keep them away from us.
Terms to Know:
1. General Deterrence – punishing an individual who has broken the law as an example to generally deter other members of society from engaging in similar behavior
2. Specific Deterrence – punishing an individual who has broken the law to specifically deter him or her from breaking the law in the future
3. Incapacitation – physically or otherwise preventing individuals from perpetrating future crimes
4. Rehabilitation – changing the behavior of those who have broken the law so that they will not commit more crimes when they are released
5. Retribution – giving an individual who has broken the law his or her “just deserts” in part because morally this is the right thing to do
Theories of Punishment
Utilitarians (maximize utility, look forward) v. Retributivists (look backward at consequences of D’sactions, relies on Kant’s theory of moral obligation)
Bentham: deterrence is the main goal, utilitarianism, looking to the future, wants to know if punishing the criminal benefits society—if there is no benefit or deterrence the person should not be punished
Kant: punishment is the main goal—retributive or “just desserts” saw punishment as retribution—actions have consequences. Kant looked to the past to determine punishment. Kant believed that the person needed and wanted to be punished for his misdeeds and that it didn’t really matter if there was benefit to society. You only looked at the person and the crime they committed. Believed people had to know there were consequences for their acts—punishment must fit the crime
Utilitarianism
• punishment justified if it results in more happiness than harm to society, try to foresee how a punishment will affect society.
• Pain and pleasure are the great springs of human action
• deterrence allowed. “all punishment is evil, it ought only to be admitted in as far as it promises to exclude some greater evil”
• deterring crime as well as correction and reformation are the primary aspirations
• proportionality of deterrence as a goal of sentencing, least amount of punishment possible to deter the crime
• “greatest happiness for the greatest number” = “felicity calculus”
• criminal sanction utilized only when it could help ensure the greater good of society and provide a benefit to the community.
Retributivists
• just punishment based on the criminal’s wrongdoing
• penalty can be harsh
• criminal deserves and desires a just punishment
• if justice and righteousness perish, human life would no longer have any value in the world
• “just deserts” theory focuses almost exclusively on the past to determine the level of punishment that should be met out to right the wrong that has already occurred as a result of the D’s conduct.
Queen v. Dudley and Stephens (boy in a boat case)
Necessity is NEVER a defense to murder, but it does mitigate the offense (turns it into manslaughter)
Accomplice liability – assist before or during you are equally guilty of the crime
Brooks = failure to act can be an actus reus but there was no duty for Brooks to defend the boy
Homicide-any unlawful killing
Elements: 1. Death
2. Defendant caused the death
Three types of homicide 1: common law,
food/water
ii) Shooting into a lighted house, moving train
2) Voluntary Manslaughter-intentional killing with mitigating circumstances(provocation) that mitigate intent but DO NOT excuse the killing—sometimes called a heat of passion killing
a) Need adequate provocation—Words alone are rarely enough (informative words are sometimes an exception: State v. Grugin (V raped D daughter, said he’d do it again. D made sure he wouldn’t)
b) reasonable person would kill—the provocation is so extreme that most people would be moved to violence
c) reasonable person would not cool off in time—the time between the provocation and the killing is too short to expect someone to regain control
d) D did not have time to cool down—D is provoked and acts nearly immediately: D catches wife cheating goes to next room, gets his gun and shoots—ok—compare to D catches wife cheating, leaves, comes back the next day and shoots—probably not ok
3) Involuntary Manslaughter—Doing a lawful act in an unlawful manner resulting in a death
a) Drinking and driving (drinking is ok, driving is ok, together, they could lead to an involuntary manslaughter charge
b) Killing from criminal negligence
i) Falling asleep at the wheel
ii) Conscious disregard for a high probability of death
c) Misdemeanor Manslaughter in common law
i) A malium in se misdemeanor- Killing someone while committing a dangerous misdemeanor or an unenumerated felony accidentally
4) Felony Murder—at common law, any death that occurred during the commission of some other felony (exists in MPC and Statutory murder laws too)
a) Considered 1st degree murder in statutory jurisdictions
i) Michigan has a special Felony Murder rule: the prosecutor must prove malice as well as show the felony, in ALL other states the felony murder rule does not require the prosecutor to show malice or ‘intent to kill’—the intent to commit the enumerated felony replaces the malice issue and automatically bumps the killing up to murder 1
ii) In Michigan, the enumerated felony will substitute or fulfill premeditation but not malice
b) The killing had to be done in furtherance of the Felony, and/or by the felon’s agent
c) Killing had to happen during the commission of some inherently dangerous felony
i) BARRKs—BARRKs offenses are inherently dangerous crimes—there is a MUCH higher probability that someone could get hurt during the commission of one of these crimes so common law courts implemented felony murder laws to try to add another level of deterrence
(a) Burglary
(b) Arson
(c) Robbery
