I. Theories of Punishment
- Retributive (backward looking):
- moral culpability alone justifies punishment
- society has a duty to punish
- denunciation of the act
- prevent maldistribution of the burdens and benefits of following the rules: punishment evens things out
- a payment for debt for benefits to society
- payment of debt for harm caused to society
- criticism: socioeconomic position of many offenders prevents them from incurring benefits of society; we can’t truly implement retributive punishment until we have a just society
- Utilitarian (forward looking):
- preventing future offenses – make costs of crime outweigh benefits
- criticism: criminals may or may not rationally calculate the benefit of the crime
- reforming criminal
- 2 ideals of rehabilitation
- Make safe to return to streets
- Help like flourishing, successful lives
- Criticisms:
- allocates scare resources away from more deserving groups who actually want them
- paternalistic justifications are a threat to liberty
- for minor offenders, cost of locking them up might be more than letting them continue
- Ideally: Before we punish, we need someone who both deserves to be punished and whose punishment makes sense and does good for society
- Deterrence:
- 3 prerequisites:
- potential offender must know of the rule
- must perceive potential cost as greater than potential benefits
- must be able and willing to bring such knowledge to bear on his conduct at time of offense
- Increasing deterrence effect of punishment:
- increase risk of conviction
- increase severity of punishment
- only substantial changes will be noted due to general lack of knowledge about penal system
- excessively severe penalties reduce risk of conviction
- discounting effect – adding years doesn’t make that much of a difference when we are already in prison for 10
- Moral Influence
ii. identifying particular act as a crime by arresting a criminal gives society something to focus on, a signal about exactly what is wrong and what is right
- important thing is relative punishment – we want to send signals about what acts are good, what acts are bad, relative to one another. Length of time in prison correlates with badness of act.
II. Elements of the Crime
a. Legality
- Mochan (test of legality): common law crimes are punishable
- nulla poena sine lege – no punishment without law
- need fair warning
3. “plain principle” – legislature, not the court, is to define a crime and ordain a punishment
a. criminal crimes are serious and are accompanied by moral condemnation
- but common law can fill in gaps in statutory law
- McBoyle (better test of legality): people need fair warning of exactly what constitutes a crime.
- Expressio unis – airplanes not included or alluded to in vague statute thus they are not part of the crime
- Morales – vague statutes are unconstitutional: provide insufficient notice and grant too much discretion = arbitrary/discriminatory enforcement
- 2 types of vagueness challenges:
- facial: no matter how harmful a person’s conduct might be, one can never tell whether the statute covers the situation or not
b. as-applied: the statute does not have a clear meaning in the context of a particular case
b. Actus Reas
- MPC 2.01 (1) – “a person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission of performing an act of which he is capable.” (act vs. omission)
- MPC 2.01 (2) – reflexes/convulsion do not constitute voluntary act bc there is no mens rea or culpability
- MPC 2.01 (3) – omission is not actus reas unless there is a duty imposed by law or otherwise sufficient
- Williams – you have a duty as a parent to take care of your child
- Jones – unless penal statute specifically requires a particular action to be performed, criminal liability for omission only arises when the law imposes a duty to act
v. 4 possibilities for imposing criminal liability:
1. If a statute imposes a duty to care
2. Status relationship
a. Spouse to spouse (not girlfriend – Beardsley)
b. Parent to child (stepmother counts – Carroll, families change, children need protection of rltnshp)
c. Innkeeper to inebriated client
d. Master to apprentice
e. Ship’s master to crew and passengers
3. Contractual duty – paid?
4. Voluntarily assumed care of another and so secluded the helpless person so as to prevent others from rendering aid
vi. Martin – affirmative act must be voluntary; but time-framing!
vii. Kleinig – Good Samaritan law imposes (no) legal obligation in some countries, but not in America; we don’t want incapacitation
viii. Barber – Even though unplugging life support was intentional, there was no legal duty to keep performing the life support (this is an omission). No liability for failure to act. Need to determine baseline in order to determine whether something is an act or an omission (baseline for removing life support is no care, so removal is omission rather than act – not guilty)
c. Mens Rea (General Requirements of Culpability)
ii. MPC 2.02 – Except as provided in 2.05, a person is not guilty of an offense unless he acted purposefully, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense
iii. Purpose – (subjective) “A person acts purposefully with respect to a material element of an offense when:
1. if the element involves the nature of his conduct or a result thereof, it is his conscious objective to engage in conduct of that nature or to cause such a result
2. if the element involves attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.”
iv. Knowledge – (subjective) “A person acts knowingly with respect to a material element of an offense when
1. if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exit
2. if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
3. Jewell – D’s awareness of high probability that event will occur is sufficient for knowledge. Although he avoided finding out whether or not there were drugs in the car, guilty bc:
a. deliberate ignorance is the same as actual knowledge, or
b. one knows facts of which one is less than absolutely certain
c. drug traffickers would make a habit of deliberate ignorance
d. Kennedy dissent: willful ignorance is not enough, you need this plus some degree of high probability; risk convicting of a crime that requires knowledge when defendant truly might not know
e. Ostrich instruction- if a defendant has purposely avoided knowing the truth he can still be convicted
v. Recklessness – (subjective and objective): “A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.”
vi. Negligence – (purely objective): “A person acts negligently with respect to a material element of the offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
1. Santillanas – the MPC requires criminal, not civil negligence as the lowest bar for criminal liability (gross deviation from reasonable person).
vii. Default rule (when mens rea not prescribed) - when a statute doesn’t specify mens rea, only purpose, knowledge, or recklessness can constitute a crime. If you have done the thing negligently, you have not committed a crime.
viii. One prescribed Culpability Requirement Applies to all Material Elements
ix. If Negligence suffices to establish a material element, so do purpose, knowledge, recklessness; when recklessness suffices, so do purpose and knowledge, when knowledge suffices, so does purpose
x. Willfulness requirement is satisfied by knowledge
xi. MPC 2.02.9 – ignorance of the law is no excuse
d. Strict Liability –
ii. MPC 2.05:
1. “culpability requirements do not apply to:
a. offenses which constitute violations, unless the requirement involved is included in the definition of the offense or the Court determines that its application is consistent with effective enforcement of the law defining the offense
b. offenses defined by statutes other than the Code insofar as a legislative purpose to impose absolute liability for such offenses or with respect to any material element thereof plainly appears.”
2. “Notwithstanding any other provision of existing law and unless a subsequent statute otherwise provides:
a. when absolute liability is imposed with respect to any material element of an offense defined by a statute other than the Code and a conviction is based upon such liability, the offense constitutes a violation; and
b. culpable commission of the offense may be charged and proved, in which event negligence with respect to such elements constitutes sufficient culpability – classification of the offense and the sentence that may be imposed therefore upon conviction are determined by Section 1.04
iii. MPC 1.04(5): An offense defined by this Code or 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 is not a crime.
iv. Staples – statute is silent about mens rea. some indication of legislative intent is necessary to dispense of mens rea. Absent a clear statement, we should not interpret any statute defining a criminal offense as dispensing of mens rea. Default rule is that if there is criminal punishment, we should assume that mens rea is necessary. Congress couldn’t have meant to lock all owners of unregistered guns away – this is too common and ordinary of an activity – people are not put on notice.
1. Is merely having/doing the thing enough to put you on notice that you could be held criminally liable?
2. Freed – possessing a grenade puts you on notice that you have to register it, it is different from a gun, which is common and ordinary –. Congress thinks grenades and automatic weapons are dangerous in a way that guns are not, so owning these unregistered is criminal
3. X-citement video – Grammar is an indication of Congressional intent. Court held that “knowledge” of both receiving a visual depiction and that the people in the depiction were minors engaged in sexually explicit acts were required for conviction under a child pornography statute, saying “to give the statute its most grammatically correct reading…would be ridiculous.” Scalia dissented, saying that interpreting the statutes so that “knowingly” modified only the surrounding verbs was the only grammatical reading, and that a presumption in favor of a scienter requirement has never been applied when the plain text of the staute says otherwise.
v. Regina v. City of Sault ste. Marie – Canada court held that administrative expediency could not justify imprisonment except under exceptional conditions. They allow for a defense to strict liability offense that allows the defendant to show that he exercised due care (was not negligent)
III. Mistake of Fact/Law
a. Mistake of Fact
ii. May mean defendant did not have mens rea required for a crime
1. if you think x and do y and y requires mens rea, not guilty
2. if y is strict liability then mistake of fact is no defense
iii. MPC 2.04.1 – Ignorance or mistake as to a matter of fact or law is a defense if
1. the ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence required to establish a material offense; or
2. the law provides that the state of mind established by such ignorance or mistake constitutes a defense
iv. MPC 2.94.2 - Defense not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, ignorance or mistake reduces grade/degree of offense to that of offense he thought he was committing.
v. Regina (England)– Majority “moral wrong” approach: even if you are mistaken about the fact that makes a particular act illegal, if the act is morally wrong, this can be a basis for reading mens rea into a statue in which it is otherwise missing – this underlying wrongful act should put you on notice that you are committing a crime and is sufficient for a strict liability commission.
1. Dissent “lesser crime” principle: “A mistake of facts, on reasonable grounds, to the extent that if the facts were as believed the acts of the prisoner would make him guilty of no criminal offense at all, is an excuse and that such an excuse is implied in every criminal charge...in England.”
vi. Mistake as to greater, but not lesser offense: When a defendant knowingly commits a crime, he runs the risk of his crime resulting in the greater crime. But the defendant is guilty of whatever crime he thinks he’s doing.
vii. Mistake of fact does not get you out of a strict liability crime – don’t need mens rea.
b. Mistake of Law
ii. MPC 2.04.3 – Only have a defense for mistake of law when you break it and:
1. you don’t know about the law
2. the law isn’t published and
3. it is not reasonably made available
iii. Marrero – MPC does not let you off the hook if you misunderstand or misinterpret a statute – the exception would swallow the rule
1. MPC 2.04.4(b)- acting in reasonable reliance of an official statement of the law and being wrong about your interpretation is only a defense if the statement is afterward determined to be invalid or erroneous –