CRIMINAL LAW

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CRIMINAL LAW SANCTIONS FOR DISOBEDIENCE

1. FINES

2. IMPRISONMENT

3. DEATH

4. CREATIVE ALTERNATIVE PUNISHMENT

CRIME

CONDUCT WHICH WILL INCUR A FORMAL AND SOLEMN PRONOUNCEMENT OF THE MORAL CONDEMNATION OF THE COMMUNITY.

PUNISHMENT

CONDEMNATION + CONSEQUENCES = PUNISHMENT

Presumption of innocence

state must present evidence to overcome D’s constitutional presumption of innocence

Standard of Proof

Beyond a reasonable doubt with a subjective state of mind of near certitude of guilt.

all elements of the crime must be proven beyond a reasonable doubt.

Sixth Amendment

Right to speedy and public trial by an impartial jury. Applies to non-petty offenses with a max punishment of more than 6 months.

Jury

12 jurors (jury of 6 constitutionally permissible). Must reach a unanimous verdict to acquit.

Jury Nullification

the unquestioned power of the jury to acquit with finality no matter how overwhelming the proof of guilt.

Appellate Review

Appellate court should resolve all factual conflicts in favor of the prosecution and consider if viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

Model Penal Code

Published in 1962 by the American Law Institute and it has influenced the criminal law reform. Many States have adopted into their criminal code.

Justifications of Punishment

Retributive and Utilitarian

Retributive

Punishment is justified because people deserve it; focuses of the moral culpability of the actor.

Punishment is inflicted because it is deserved and focuses on the value of the person and the person’s place in society.

Retributive Rationale

systemic moral response to wrongdoing, guilt is necessary and sufficient reason to punish; Punishment must be proportional.

Utilitarian

Punishment is justified by the useful purpose that it serves. Punishment is justified if it achieves an overall good and the improvement to society outweighs the harm done to the Defendant.

Utilitarian Punishments

1. Deterrence

2. rehabilitation

3. incapacitation

Utilitarian Rationale

People react to actual and anticipated pleasure and pain/punishment is justified only if it avoids a greater evil.

Theories of Punishment

1. Retribution

2. Deterrence

3. Rehabilitation

4. Incapacitation

Retribution

Punishment imposed on the basis of what is justly deserved; imposed to restore the equilibrium of the common good that was disturbed.

Retribution Rationale

Justified because defendant exercised free choice in a way that made punishment necessary; punishment requires guilt and must be proportional.

Deterrence

Act or process of discouraging certain behavior particularly by fear of punishment.

Rehabilitation

Process of seeking to improve a criminal’s character and outlook so he can function in society without committing other crimes.

Forms of Rehabilitation

1. Expiation: atonement and reparation

2. Reformation: changing the offender

3. Restoration: reintegrating into society.

Punishment/Threat of Punishment Deters when

1. it is severe enough

2. it is certain enough

3. actor is rational

Incapacitation

Punishment that physically prevents a criminal from acting.

Methods of incapacitation

1. Confinement

2. Ankle Bracelet/ House Arrest

3. Deportation

4. Death

Denunciation

Those that disobey law should be held up to society and denounced as violators of the rules that define what society represents.

Proportionality in Punishment

measured absolutely and relatively

Absolutely

commensurate with the Crime.

Relative

out of line with how others are punished for similar conduct.

Natural Law on the Proportionality of Punishment

punishment but be commensurate with the degree to which actor has exercised his freedom unlawfully.

Disproportionate punishment can constitute cruel and unusual punishment in violation if the 8th amendment (Separation of Powers).

Modern Roles of Criminal Statutes

1. Positive Law

2. Common Law

3. Natural Law

Positive Law

System of law promulgated and implemented within a political community by legitimate authority.

Typically consists if enacted law, codes, statutes, and regulations.

Common Law

Derived from judicial decisions rather than from statutes or constitutes based on the English Legal System.

Natural Law

first and essential precepts which govern moral life; belongs properly to human nature because reason decrees it - placed by God.

Six Principles of Criminal Law

1. Legality

2. Void for Vagueness

3. Doctrine of Overbreadth

4. Rule of Constructive Notice

5. Doctrine of Strict Construction

6. Rule of Lenity

Principles of Legality

A person may not be prosecuted under a criminal law that has not been previously published; courts cannot create crimes.

Void For Vagueness

fails to define a crime with sufficient definiteness so ordinary people can understand what is prohibited (provides fair notice); or fails to establish guidelines to prevent arbitrary and discriminatory enforcement

Doctrine of Overbreadth

if a statute is so broadly written that it deters free expression, then it can be struck down on its own face because of its chilling effect, even if it also prohibits acts that may legitimately be forbidden.

Doctrine of Strict Construction

Judges should interpret a criminal statute according to its literal terms, without looking at other sources to ascertain the meaning

Rule of Lenity

Directs that judicial resolution of residual uncertainty or ambiguity in the meaning of a criminal statute be resolved in favor of the defendant

Sources of Statutory Language

1. Dictionary definition

2. remainder of the statute

3. other cases that have interpreted the statute

4. legislative history of the statute

5. common law origins and principles

Components of criminal offenses

1. actus reus

2. mens rea

3. causation

4. social harm

Actus reus

the wrongful deed that comprises the physical components of the crime. Generally, coupled with mens rea to establish criminal liability

Attendant circumstances

facts or conditions that must be present in conjunction with the prohibited conduct or result, in order to constitute a crime; part of the actus reus.

Social Harm

harm that justifies punishment imposed under the criminal law and the loss experienced not only by the discrete victim, but also the tangible and intangible harm suffered by society.

Result Crime

conduct that is proscribed because of the socially harmful outcome; punishes an unwanted outcome.

Social harm and Result Crime together

immediate victim and society is harmed by result; punishes the act or omission

Conduct Crime

conduct that is proscribed because the socially harmful behavior; punishes specific dangerous behavior.

Social Harm and Conduct Crime

Conduct crimes do not socially harm in a narrow sense but in a broader sense they always do; punished to deter and avoid harmful result crimes.

Combination crime

punishes both - conduct and result may be published by a single crime. Example: Homicide using automatic weapon

Physical Act C/L

something done or performed; a deed.

Physical act (MPC)

a bodily movement whether voluntary or involuntary

ACT VS. THOUGHT

Act is required, while thought is not punished.

Why Thought not punished?

1. Thoughts are difficult to ascertain

2. thoughts are not socially stigmatizing

3. Sanctions can deter acts and not thoughts

   1. to punish thoughts is an intrusion of privacy and personal autonomy

Voluntary Act (C/L)

1. Any act that is done by design or intention.

2. willed or volitional behavior by the actor

3. more than self generated physical movement'

4. involves the use of the actors mind and not just the actors brain

voluntary act (MPC)

1. Excludes punishment for mere thoughts and bars liability for purely involuntary conduct

2. a person is not guilty of an offense unless his conduct includes a voluntary act or an omission to perform an act of which he is physically capable

3. Consistent with retributive justification - punishment based on free will, no blame for the absence of choice.

Involuntary Act

1. lack of culpability for the movement

2. lack of volition for the movement

3. suggests a lack of consciousness of the act

4. Time framing can be used to show liability even for involuntary acts

Omission

a negative act that is generally not prosecuted because it is:

1. ambiguous: hard to determine motive

2. avoids problems with drawing the line

3. intervention can often make matters worse

4. failing to act merely withholds a benefit, it does not affirmatively harm; law cannot compel

criminal liability Omission applies when:

1. statutory duty to another

2. status of relationship to another

3. contractual duty to care for another

4. Voluntary assumption of care of another that so excluded others from helping the helpless person

5. Creating the risk of harm

Omission crimes

1. misprision of felony: knowledge of a crime by another and active concealment

2. Aiding and Abetting: knowledge, affirmative assistance, and encouragement/advice.

Proportionate Treatment Approach

1. extremely painful

2. minimally painful

extremely painful

or intrusive treatment is proportionate if the prognosis is for a complete cure or a significant improvement in the patients condition.

Minimally Painful

treatment may be disproportionate if the prognosis is virtually hopeless or any significant improvement in the condition.

Mens Rea

State of mind must be proven of the defendant at the time of doing the wrongful deed in order to secure a conviction.

Mens Rea Broad Approach

guilty mind or a morally culpable state of mind without specifying a specific type of mental culpability.

EX: an actor Is guilty if he performs the actus reus of an offense with any morally blameworthy state of mind.

Mens Rea Narrow approach

mens rea is the specific mental state required by the definition of the offense.

Mens Rea Utilitarian View

conduct done without awareness factors making it criminal does not merit need to punish in order to deter.

Mens Rea Retributive View

unjust to punish one who is not morally blameworthy because it would cause unjust social stigmatization.

Mens Rea Natural Law

no justification in punishing unless actor used free will or choice

Mens Rea Common Law

divided into specific intent and general intent

Specific Intent

intent to accomplish the precise act with which one is charged; to act with conscious objection or purpose of accomplishing a result. Intentionally or knowingly

Intentionally

conscious objective or purpose

Knowingly

conscious awareness that a given result is practically certain to be caused by ones conduct.

General Intent

Morally blameworthy state of mind usually taking the form of: Recklessly, Negligently, or Wickedness. Can have an expressly stated mens era (negligently causing the death of another)

Recklessly

actual awareness of risk of mind and culpable taking of that risk

Negligently

Blameworthy inadvertence (unconscious risk taking

Mens Rea Proof

State must prove only the mens rea specified in a given statute - no more, no less.

How is the mens rea proven

1. Inference

2. Permissive inference

3. Presumption

inference

a conclusion reached by considering other facts and deducing a logical consequence from them

Permissive inference

an inference that a trier of fact is free to accept or reject from a given set of facts; person intends the natural and probable consequences of his voluntary and intentional actions and the mens rea is deduced from conduct

Presumption

A legal assumption that a fact exists, based on the known or proven existence of some other fact or group of facts. Normally shifts the burden or persuasion to the opposing party.

Transferred Intent in Mens Rea

does not transfer intent to commit one type of social harm to the actual causing of another social harm

Mens Rea MPC

Applies the narrow and elemental approach. Prosecution must prove the actor possessed a particular state of mind when the actor committed each material element of the crime as expressed in the statute.

4 types of mens rea in the MPC

1. purposely

2. knowingly

3. Recklessly

4. Negligently

Purposely

actor has a conscious object to engage in conduct of that nature or to cause such result and is aware of the existence of attendant circumstances or believes/hopes they exist

Knowingly

aware of the actus reus conduct/ that attendant circumstances exist and is aware that its practically certain that conduct will cause the acts reus result

Recklessly

consciously disregards a substantial and unjustifiable risk - conduct/attendant circumstances involved a gross deviation from the reasonable prudent person.

Negligently

Should be aware of substantial and unjustifiable risk and failure to perceive risk is a gross deviation; unreasonable but inadvertent disregard.

When the Mens Rea is not Specified

there is a presumption of mens rea if the mens rea is not specified

Attendant Circumstances Common Law

A person acts knowingly with regard of the attendant circumstances when they are aware that the A/C exist.

A/C MPC

A person has knowledge of A/C when he commits:

1. Voluntary act of actual knowledge the circumstances exist.

2. Voluntary negative act failing to dispossess oneself promptly

3. Voluntary act based on willful blindness/ deliberate ignorance and knowledge established if person is aware of a high probability of its existence

Willfulness (common Law)

generally requires the actor to intentionally perform the prohibited act in bad faith, with either a wrongful motive or in violation of a known legal duty.

Willfulness (MPC)

satisfied by proving the mens rea of knowingly

Strict Liability

A crime that does not require a mens rea element. Requires legislative intent to prove that strict liability was meant to be applied to the element

Two Kinds of Strict Liability

1. Public Welfare Offenses

2. Strict Liability element offenses.

Exceptions to Strict Liability

1. Apparently Innocent Conduct

2. Potentially harmful/injurious Conduct

Apparently Innocent Conduct

if it legal to do the conduct then courts require of legislature to do away with the mens rea to be shown.

Potentially harmful/injurious Conduct

assumptions is that intent is for the defendant to know whether his conduct falls within the statute.

Public Welfare offenses

the purpose is regulation and not punishment; typically light punishment is imposed.

Example: motor vehicle or traffic regulation

Strict liability Elements Offenses

there is a mens rea for all other elements except the strict liability element; this element is usually the attendant circumstance.