CRIM LAW OUTLINE – PROFESSOR BERES – FALL 2005

PHILOSOPHICAL APPROACHES TO PUNISHMENT

Utilitarianism:

  • Basic principle: Maximize social welfare (i.e., the well-being of society)
  • Cost vs. benefit approach to punishment:
  • Punish if the social benefits outweigh the costs to society.
  • Basic problem: Is it right to punish someone who does not deserve to be punished if doing so would be beneficial to society?
  • Early proponents: Bentham, Mills

Bentham:

  • Four cases where punishment is wrong.

(1)Where the criminal act itself causes no harm to society, or the social benefit

gained outweighs the social harm of the act (e.g., killing in self-defense).

(2)Where the punishment would not deter.

(3)Where harm can be prevented by means other than punishment (e.g., after school

programs).

(4)Where punishment does more harm than good (e.g., disproportionately harsh

punishment).

  • Cost to society of wrongful convictions is high.

Retribution:

  • Basic principle: Society should punish if, and only if, the person deserves it.
  • Impact on society and whether punishment would promote social welfare are irrelevant.
  • Basic problem: How does one assess or determine blameworthiness?

Levitt:

  • Econometric study on the decline in the crime rate (43% decline).
  • Crime rate has gone down as a result of more P & S, more police, and legalized abortions (If abortion was illegal, poor people would not carry out abortions (they couldn’t go somewhere where it was legal), so they would have babies who would grow up and commit more crimes).
  • Stronger economy, better police strategy, gun control laws have not been factors in the decline.

Murphy:

  • Vast majority of inmates are members of the lowest 15% income level.

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PURPOSES OF PUNISHMENT

  • Courts use the purposes of punishment to:
  • Interpret statutes; and
  • Determine appropriate punishments.

Deterrence:

Specific deterrence: Deters the individual who is punished from committing crimes in the future.

General deterrence: Deters other individuals from committing crimes.

  • Deterrence is premised on the assumption that individual actors do a cost/benefit analysis before committing crimes.If the potential benefits of committing a crime outweigh the potential costs, the actor will likely commit the crime.
  • Expected punishment = S x P
  • S = severity of sanction
  • P = probability of apprehension
  • What matters more is not the actual probability, but the perceived probability of apprehension.
  • Ways to increase deterrence:
  • Longer/harsher sentences (e.g., Three Strikes laws)
  • Increase the probability of apprehension (e.g., hire more police officers)
  • Change offender’s perception of S & P

Marginal Deterrence: More serious crimes are punished more severely to encourage people to commit lesser crimes.

Wilson:

  • People respond to rewards/incentives and punishment.
  • Criminals are more likely to commit a crime that yields a lower probability of getting caught.
  • Changes in the economy (e.g., unemployment rate) do not affect the crime rate.

Kahan:

  • Visible social disorder leads to more crime and more serious crimes.
  • “Broken Windows” analogy: An empty house in the neighborhood sits untouched for months. Once one person breaks a window, all of the other windows get broken as well.
  • Once one window is broken, others come to assume that no one cares and that there is a lack of law enforcement.
  • Therefore, if you cut down on public disorder crimes, you will also decrease more serious crimes.
  • Public disorder crimes include such things as vandalism, graffiti, etc.
  • Some practical support for this theory found in NY.

Criticisms/Drawbacks of Deterrence:

  • Are negligent conduct or inadvertent acts deterrable?

Rehabilitation:

Reduce crime through rehabilitation, on the presumption that once reformed, a convict is less likely to commit a crime he otherwise would have.

  • Under the theory of rehabilitation, the purpose of incapacitation is to rehabilitate. Therefore, prisons are needed in order to be able to carry out rehabilitation programs.

Incapacitation:

  • Basic principle: Lock people up so they can’t commit any more crimes.
  • But disregards the fact that people can still commit crimes in prison.

Wilson:

  • Three assumptions underlying theory of incapacitation:
  • If not in prison, criminals would be committing more crimes.
  • Offenders are not immediately “replaced” by other offenders.
  • Replacement may occur in organized crime and drug rings (but not in gangs).
  • Prisons are not “schools” of crime.

Selective Incapacitation: long prison terms to those people who would be high-rate criminal offenders if they weren’t in prison.

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ELEMENTS OF A CRIMINAL DEFENSE

  • Actus Reus – An overt criminal act or omission; presumes voluntariness of conduct; always required.
  • Mens Rea – The actor’s state of mind at the time of commission of the act; usually required.
  • Causation – The link between the actus reus and result.
  • Result– The result of the actus reus; usually not required.
  • Attendant Circumstances – Other elements that must be present for criminal liability.

Actus Reus + {Mens Rea} + [Causation] + [Result] + [Attendant Circumstances] =

Criminal Liability (unless justified or excused)

Sample Statutes:

(1)A person shall be guilty of murder if he purposely cause the death of another person.

  1. Actus reus = Causing the death of another person.
  2. Mens rea = Purposely
  3. Causation = The actus reus is the cause of death.
  4. Result = (Someone must die.)
  5. Attendant Circumstances = n/a

(2)A person shall be guilty of burglary if he intentionally enters a dwelling without permission with the intent to commit a felony therein.

  1. Actus reus = Entering a dwelling without permission with the intent to commit a felony therein.
  2. Mens rea = Intentionally
  3. Attendant Circumstances = Must be a dwelling.

Defenses:

Justifications

Excuses

Actus Reus:

Voluntary Acts:

MPC §2.01 –

(1)Person commits a criminal offense only when his liability is based on a voluntary act or omission to perform an act of which he is capable (Note: this is a paraphrase).

(2)The following are not voluntary acts:

  1. a reflex or convulsion;
  2. bodily movement during unconsciousness or sleep, such as an epileptic seizure, sleepwalking, or muscle spasm;
  3. conduct during hypnosis while under hypnotic suggestion b/c no different than sleep or seizure; and (Note: this is rejected by most jurisdictions.)
  4. Any other bodily movement that is not the product of the effort or determination of the actor, either conscious or habitual, such as forced movement.
  • Proctor: (During Prohibition, D was charged with “keeping a place” with the intent to furnish alcohol.)
  • Court reversed conviction on the ground that intent to commit a crime is not an overt criminal act, and therefore, cannot be the actus reus in any crime. There can only be a crime when one’s intent has been executed (where action coincides with intent). Bad thoughts alone cannot be punished.

Omissions:

A person can be held criminally liable for failing to act when she has a legal duty to do so.

A legal duty can be imposed in the following ways:

(1)Statute;

(2)Status Relationship: Pre-existing dependency creates a legal duty (e.g., spouse/spouse; parent/child) – dependency must be substantial (e.g., spouse/mistress not enough – Beardsley).

(3)Contractual Relationship (e.g., babysitter, nurse)

(4)Voluntary assumption of care of another where the assumption of care isolates the person so that others cannot help; and

(5)Where a person caused the victim’s plight and can rescue her without risk of harm to himself.

  • Jones:(D did not take her baby to the doctor. Baby died after being sick but not being taken to hospital.)
  • The omission of a legal duty which results in the death of the person to whom the duty is owed can be a ground for involuntary manslaughter, but only when that duty is legally recognized and not merely imposed by moral obligation.

Mens Rea:

Material elements: Elements relating to the harm that the statute is trying to prevent (i.e., conduct, result, and attendant circumstances). Everything else is jurisdictional.

4 Levels of Culpability Under the MPC:

Purpose:

  • Conduct: D’s conscious object is to engage in conduct of that nature.
  • Result: D’s conscious object is to cause such a result.
  • Attendant circumstances: D is aware of the existence of the circumstances, or he believes or hopes they exist.

Knowledge:

  • Conduct: D is aware that it his conduct is of that nature.
  • Result: D is aware that his conduct is practically certain to cause such a result.
  • Attendant circumstances: D is aware that such circumstances exist.
  • Willful blindness/ignorance: Knowledge is established because the actor is aware of a high probability of the criminal activity’s existence and purposefully takes steps to avoid learning the truth.
  • Jewell: D had marijuana in car; knew of its existence but purposefully ignored it.
  • Giovanetti: D rented house to someone who used it for gambling. D acquitted (of complicity) because not enough evidence that he purposefully ignored the truth.

Recklessness: (Conscious risk creation)

  • Result: D consciously disregards a substantial and unjustifiable risk of the material element will result from his conduct.
  • Attendant circumstances: D consciously disregards a substantial and unjustifiable risk that the material element exists.
  • Recklessness default rule: When a material element is missing a mens rea, the default mens rea is recklessness, because purpose and knowledge are usually explicitly mentioned in statutes, and because negligence is an exceptional basis of liability.

Negligence:

  • D inadvertentlycreates a substantial and unjustifiable risk of which he should be aware.
  • Result: D should be aware (i.e., a RPP would be aware) that his conduct creates a substantial and unjustifiable risk of the material element resulting.
  • Attendant circumstances: D should be aware (i.e., a RPP would be aware) of a substantial and unjustifiable risk that the material element exists.

The MPC requires that every material element have a level of culpability attached to it.

The MPC only allows legislatures to condition crimes on negligence. The minimum mens rea that courts can ascribe upon a material element is that of recklessness.

Common Law:

A variety of words were used to describe criminal intent.

Maliciously: Acting in disregard to the risk of another.

Intentionally: Acting with the purpose to cause a specific harmful result.

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STRICT LIABILITY

  • D is guilty of a crime even if he honestly and reasonably believed his conduct was proper.
  • Strict liability is a chief source of difference between MPC & the common law.

Common Law:

  • Strict liability crimes are usually regulatory or statutory offenses for which no mens rea is expressly given in the statute. Most statutes for non-regulatory offenses that do not specify a mens rea requirement are presumed not to be strict liability crimes (Morissette).
  • Public Welfare Offenses:
  • Affect health, safety, and public welfare.
  • Often strict liability offenses, because usually, no mens rea in statute.
  • Things to take into consideration when determining the mens rea for a crime that does not explicitly state one:
  • Severity of the punishment
  • Damage to D’s reputation
  • Actual harm vs. mere risk
  • Action vs. omission
  • Legislative intent (e.g., regulatory law?)
  • Dillard: Strict liability crimes are acts that are so destructive of the social order, or for which it is extremely difficult if not impossible to establish the element of criminal intent, that in the interests of justice, the legislature has provided that the doing of the act constitutes a crime regardless of knowledge, criminal intent, or culpability on the part of the defendant.

MPC: (limited scope)

  • Strict liability for “violations” only (i.e., offenses punishable only by a fine, or fine and forfeiture, or other civil penalty that does not give rise to disability or legal disadvantage).

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HOMICIDE

Transferred Intent:

MSS: An intent to kill one person may be “transferred” to another who is the unintended victim.

  • If A intends to shoot B, but misses and kills C, the intent to shoot B “transfers” to C.

MPC: If a person acts with purpose or knowledge, and the act results in the same type of harm intended, mens rea and causation are satisfied even when a different person or property is actually harmed.

Murder:

MSS:

  • 1DM
  • Intent (P or K) to kill[1] with Premeditation & Deliberation.
  • Premeditation = A definite decision to kill (calculated and planned).
  • Deliberation = “Cool” reflection that occurs after purpose to kill has been formed; some appreciable time must elapse b/w design and act of killing.
  • Broad approach: Mere seconds are enough for P & D. (Watson)
  • Narrow approach: D has to have a specific design to kill (facts must show a pre-design plan).
  • For Pre & D, look for:
  • Prior threats or hostility b/w D & victim;
  • Strong motive for killing (e.g., money, revenge);
  • Manner and circumstances of killing (e.g., reloading gun);
  • Stalking of the victim or other evidence of plan to kill (not just to hurt or frighten);
  • Murder weapon brought to site of killing.
  • 1D felony murder.
  • 2DM
  • Intent (P or K) to kill (unplanned or impulsive).
  • Intent to do GBH + use of a deadly weapon.
  • E.g., Dorazio (boxer)
  • No intent to cause permanent injury is not a defense.
  • Recklessly with Depraved Heart (R&DH); i.e., “gross recklessness.”
  • Actor is aware his conduct creates a large and substantial risk of death, but goes through with it anyway.(Reckless conduct that is closer to P/K.)
  • Extreme deviation from the norm. (Pears – drunk driver)
  • Cold and callous (i.e., depraved) heart. (Mayes – beer glass)
  • Unjustified b/c zero social utility. (Malone – one-sided Russian roulette)
  • Other examples: Shooting into unoccupied home; firing over person’s head to scare them; shooting into a moving car.
  • 2D felony murder.

MPC:

  • Murder (no grading)
  • P or K
  • Purpose: Actor’s conscious objective is to cause death.
  • Knowledge: Actor is aware that his actions are practically certain to cause death.
  • Recklessly with Extreme Indifference to Human Life (EIHL).
  • Equivalent to MSS R&DH.
  • May include vehicular homicide (like MSS) if EIHL can be established.

NOTES:

  • No brightline test between R&DH/EIHL & ordinary recklessness.
  • Both MSS & MPC allow murder convictions for vehicular homicide (MSS = 2DM).
  • Drinking and driving alone not enough – must be driving in extremely erratic, dangerous, and fast manner.

Manslaughter:

MSS:

  • Voluntary Manslaughter
  • Any murder except felony murder can be reduced to VM.
  • A murder is reduced to VM when:
  • Provocation defense (HoP + LAP + Inadequate time to cool);
  • Imperfect self-defense; or
  • Necessity.
  • Involuntary Manslaughter
  • (Ordinary) Recklessness
  • Gross negligence (gross deviation from RP) – NotOrdinary Negligence
  • No brightline test b/w gross and ordinary negligence.
  • Failure to appreciate a risk of death of which the actor should be aware.
  • Unjustified b/c zero social utility.
  • Punishing these people for murder would be arguably pointless.
  • No specific deterrence.
  • Retribution won’t be met since one can’t be morally culpable for causing an accident.
  • Vehicular Homicide (minority jxds)
  • Most IM convictions for gross negligence arise out of automobile accidents.
  • Driving under the influence is likely to be grossly negligent per se b/c it is a banned behavior.
  • Any social benefit possibly achieved by driving under the influence is outweighed by the risks such conduct creates.

MPC:

  • Manslaughter (no grading)
  • Murder may be reduced to manslaughter if:
  • Regular recklessness(w/o EIHL); or
  • Carried out with Extreme Mental or Emotional Disturbance (EED) for which there is reasonable explanation or excuse (subj. standard).
  • Negligent Homicide
  • Gross negligence (gross deviation from RP)

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FELONY MURDER

[Most jurisdictions have felony murder rules. MPC does not have felony murder rules – murder committed in the course of a felony gives rise to presumption of extremely reckless murder.]

Elements:

  • What was the predicate felony?
  • 1DM: BARRK
  • 2DM: Inherently danger./high prob. of death(abs. v. as-c) + independent purpose
  • Did the killing occur during the commission of the predicate felony, or was the felon in immediate flight?
  • Was the killing done in furtherance of the predicate felony? (common purpose, not “separate frolic” or rogue felon)
  • Who caused the death? (agency vs. proximate cause)
  • Who was the victim? (some say no FM if victim was co-felon)

1D Felony Murder (BARRK)

  • Underlying felony must be a BARRK felony (Burglary, Arson, Rape, Robbery, Kidnapping) – “enumerated felonies”

2D Felony Murder (not BARRK)

  • Two elements:

(1) Predicate felony is inherently dangerous (high probability of death).

  • Abstract (Majority) – Felony causes a risk of death in the abstract (does not look at how the felony was actually committed).
  • As committed (minority) – Felony causes a risk of death as committed. (NOTE:Problematic b/c all felonies are inherently dangerous.)

(2) Predicate felony is independent of and does not mergewith the homicide.

  • The felony must have a purpose other than causing physical injury.
  • Lucas (child abuse case)
  • D was not guilty of felony murder because the sole purpose of carrying out predicate felony was to inflict physical harm.

The killing (or attempted killing) must be in furtherance of underlying “predicate” felony.

  • Rogue Felon Doctrine: The killing cannot be the private action (“separate frolic”) of one of the felons (i.e., cannot be outside the common purpose of the felony).
  • E.g., A shoots C in the parking lot in the middle of a robbery at 7-11.

The killing must take place during the commission of the felony.

  • Includes immediate flight from scene of felony.
  • Gladman factors:
  • Police/citizens in hot pursuit.
  • Felon has not yet reached a place of temporary safety.
  • D has not abandoned the loot.
  • Much time has not elapsed from the commission of the felony.
  • Gladman(D killed officer 15 minutes after felony, ½ mile away from scene.)
  • D was convicted of felony murder on the ground that commission of the felony was ongoing at the time of the killing.

Victims:

  • Some jxds hold that no felony murder if the victim is a co-felon – others make no distinction.

Hastening Death:

Felony murder conviction may be obtained even when D’s act only hastens death, so long as death is the causal result of D’s actions. “You take the victim as you find him.”

  • Stamp(Overweight owner w/ poor health had heart attack and died after his office was robbed).

Rationales for felony murder rule (and criticisms thereof):

(1)Committing the felony proves that the M.R. necessary for murder conviction was

present (EIHL).

  • This is not always true (e.g., Stamp).
  • But the rule allows prosecutorsto ignoreintent to kill for murder conviction.

(2)Strict liability, even if (1) is not true.