Law School Outlines - Crim_Law_Theories of punishment

Theories of punishment MPC A. Punishment: 1. To forbid and prevent conduct inflicts or threatens substantial harm to individual or public interest, 2. To subject to public control persons who are disposed to commit crimes, 3. To differentiate between serious and minor offenses. B. Sentencing: 1. Prevent commission of crimes, 2. Promote correction & rehabilitation, 3. Safeguard against excessive, disproportionate or arbitrary punishment. II. Common Law: A. Retribution: 1. Moral duty to punish to negate harm to society caused by crime. 2. Must suffer in proportion to crime to conserve social conscience. 3. Only the guilty should be punished. It is wrong for society to punish those who do not deserve it. B. Utilitarianism: 1. Proportionality required to prevent juries from refusing to grant severe consequences 2. Deterrence & social gain the only goals. Actus Reus: Voluntary action/inaction which can be punnished I. Involuntary actions are not culpable A. Common Law 1. Forced movement by third party, e.g. police forcing drunken man into public. Martin (171) 2. Status crimes are unpunishable: a. There must be a positive action or omission: May not make “being a drug addict” illegal. Robinson (1011) b. But habit, foreseeable consequences of voluntary intoxication, possession of narcotics by an addict (consequences of status) are voluntary acts. Powell (1013) 3. Unconsciousness due to shock, sleepwalking are not voluntary actions. Newton (173), Cogdon (177) B. MPC 1. §2.01: (2) Excludes (a) reflex, convulsion, (b) movement during unconsciousness/sleep, (c) action under hypnosis (d) “otherwise not a product of the effort or determination of the actor, either conscious or habitual.” 2. Voluntary acts require knowledge: MPC §2.01(4): Possession is an act … if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession. C. Why: 1. No point in retribution, no deterrence in punishing involuntary acts. II. Omissions A. MPC: 1. §2.01(1) Not guilty unless … the omission to perform an act of which he is physically capable. 2. §2.01(3) No liability for omission unless a. Omission expressly sufficient in law defining offense or b. Duty to perform omitted act otherwise imposed by law. [Any common law status relationship] B. Common law omission: No punishment unless status requires action. Jones v. US (191) 1. Status may be imposed by statutory duty (doctors, social services, teachers, parents.) 2. Statuts may by required by special relationship: Parent, teacher to child, captain to crew, master to apprentice. 3. Contractual duty may impose status. 4. Caretakers are liable for omission. A caretaker is: a. Family member or other party with long history of care. Regina v. Stone & Dobinson (194). b. Third party who voluntarily assumes care: i. Third party caretakers in presence of parent have no liability. Pope (181) ii. Someone who causes danger, does nothing to abate danger and secludes from care by others. Oliver (195), Jones v. State (196) 5. Misprison of Felony (failure to report) is not a crime in any jurisdiction. Mens Rea III. Common Law A. States: 1. Malicious: Defendant is only liable for those acts which foreseeably follow from the act. Cunningham (205), Faulkner (207) 2. Neglignece: Morally culpable, not merely inadvertent. Santillanes (209) 3. Specific Intent: Act with conscious objective to achieve prohibited result for each element: Burglary requires intent to commit larceny inside the building. 4. General Intent: Requires only intent to do some of the requirements of the crime: Battery does not require intent to harm the victim. IV. MPC §2.02 A. States: 1. Purposefully: Conscious object to engage in the conduct or cause the result and is aware of attendant circumstances or believes or hopes they exist. 2. Knowingly: a. Is aware that conduct is of the defined nature or that circumstances exist, or b. Is aware that it is practically certain that conduct will cause specified result. c. Knowledge of a high probability of the element satisfies the requirement. d. “Ostrich” knowledge: subjective knowledge of high probability and deliberate contrivance to avoid actual knowlege US v. Jewell (220) 3. Recklessly: a. Consciously disregards a substantial and unjustifiable risk that the element exists or will result from defendant’s conduct. b. “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 defendant’s situation.” 4. Negligently: a. Should be aware of a substantial and unjustifiable risk that the element exists or will result from defendant’s conduct. b. “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.” B. Construction: Unless otherwise specified, the most generally defined state applies. If no state is specified, recklessness is the minimum standard V. Strict Liability A. Applied to regulatory crimes: 1. To minimize the probability that the crime will occur rather than any retributory goal. Morrissette v. US (237). 2. However, vicarious liability for strict liability crimes is not applied because it is not justified by the public interest in prevention. Guminga (244) B. Applied to some elements like age of a minor in statutory rape, if element is specially protected. See Mistake. Homicide VI. Common Law A. Murder: Killing with Malice Aforethought 1. Malice Aforethought: a. Intent to kill or inflict extreme bodily harm, either to victim or another. b. “Abandoned and Malignant Heart.” 2. Premeditation. 3 categories of evidence: People v Anderson (399) CA. a. Facts about how & what defendant did prior to the killing showing defendant engaged in activity directed toward or intended to result in the killing. i. Loading a weapon, grabbing a weapon from a drawer, getting a new knife after the first one breaks. Ollens (404) ii. Language in testimony like “remembered” where a weapon was or killing a sleeping person. Carroll (394) b. Facts about nature of the killing from which jury can infer that it must have been done intentionally. c. Facts about prior relationship with victim showing motive. Must be accompanied by (a) or (b). d. No premeditation shown by drunken defendant randomly stabbing with no evidence to show deliberate infliction fatal wound. Anderson (399) Thought must be alleged; strangling does not show premeditation by itself merely because it takes 5 minutes. State v. Bingham (403) 3. Felony Murder a. Requires proximate cause & “but for” causation: i. Natural & probable consequence as well as actual consequence. Eggshell theory applies but actual cause must be proven. ii. Agency: Felon is responsible for co-felon’s actions but unless legislatively required, the courts do not extend felony murder to victim killing co-felon in self-defense. iii. Killings not in furtherance of the felony: No liability unless killing done by felon or co-conspirator, unless felon forced deceased into a position of danger in order to commit the felony. Canola (495) b. Formally, no mens rea element for the death if the felony is proved but some jurisdictions require at least negligence. People v. Aaron (479) c. Usually limited to specific felonies which are “inherently dangerous” for example, arson, rape, robbery, burglary, kidnapping… i. Most jurisdictions are working to narrow the situations the rule can be used. ii. Most jurisdictions examine only the elements of the felony to determine if it is inherently dangerous, others examine the situation of the particular acts. Phillips (481), Satchell (484). This narrows the application. iii. Statute may even be devided to determine if the particular elements of the felony the defendant met are always “inherently dangerous.” People v. Henderson (486) d. Merger: i. If the felony is an incidental step but the intent was to kill, there is no felony murder: All murders are also assaults, but this does not allow automatic conviction. People v. Smith (488) ii. Requires merger of purpose: If a parent is “disciplining” a child and accidentally beats them to death, they may be convicted of felony murder incident to child abuse because the intent was to discipline not to kill. People v. Jackson (493) iii. Inconsistent: Burglary with intent to assault may result in felony murder but straight assault will not. e. Some jurisdictions allow misdemeanor/manslaughter. B. Manslaughter: Killing without Malice Aforethought 1. Provocation as mitigation to manslaughter, “upon sudden heat.” 2. Elements: State v. Thornton (405) a. Defendant, at the time of the act, was disturbed to the extent which might render an ordinary man “of fair & average disposition,” liable to act in the same manner. b. Traditional causes: Extreme assault or battery, mutual combat, illegal arrest, injury or abuse to close relative, discovery of spouse’s (but not POSSLQ’s) adultery. c. Cause must be actual viewing of a physical act. Words are not sufficient. Girouard v. State (411) d. If a “cooling off” period has passed, the excuse cannot be used. VII. MPC A. Murder: §210.2 1. Purposefully, knowingly 2. Recklessly, exhibiting extreme indifference to human life. Refutable presumption if defendant engaged in commission of a named felony B. Manslaughter: §210.3 1. Recklessly 2. Murder under the influence of “extreme mental or emotional disturbance for which there is a reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.” a. Under MPC, burden is on the prosecution to refute provocation. Under modification, affirmative defense. b. Reasonableness of disturbance based on objective examination of the subjective viewpoint of the defendant. Casassa (420) c. Does not require triggering event. C. Negligent Homicide §210.4 Attempt: I. Mens Rea A. Requires intent in most jurisdictions. Kraft (585) 1. Harmless act is not culpable without intent to do harm or hope that harm will result. 2. Some allow culpability for knowledge or recklessness, but others do not punish because there is no deterrence value. B. No attempted felony murder allowed –strict liability element not satisfied if it is not complete. However attempted rape of a minor is attempted statutory rape. II. Sufficient Preparation A. Does any act which constitutes a substantial step toward the commission of the crime. 1. Proximity: Final step not required, but events leading to crime must inexorably be set in motion. Peaslee (593) 2. Defendant must have “done his best” to complete the attempted act. Barker (594) B. “Tends to effect” the commission of a crime: much lower standard. C. Intent may be legislatively declared sufficient. D. Reform 1. “Under circumstances manifesting a voluntary and complete renunciation of the criminal purpose. 2. Must not be due to pleas of intended victim. McNeal (600) III. MPC: §5.01 A. Must act with the culpable state required for the crime attempted B. Purposefully does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of a crime. 1. Must engage in conduct which corroborates the firmness of criminal intent. Jackson (610) 2. Repeated attempts or postponement due to disadvantageous circumstances imply culpability. 3. Factors listed in §5.01(2) constitute a completed attempt. 4. Actions implying lack of commitment to criminal purpose deny the attempt. For example, failure to handle or examine offered drugs. Joyce (616) C. Reform: Affirmative defense under §5.01(4): “Circumstances manifesting a complete and voluntary renunciation.” Defenses: I. Mistake: Excuse defense: (“I thought I was doing something that was not illegal.”) A. Common Law: 1. Elements of defense: Morgan (320) a. Mistaken belief must be honestly subjectively held b. Belief must be reasonable in the circumstances defendant was in. 2. Where evidence exists that legislature (or society) views the intended action as wrong or special protection exists regarding true circumstances, mistake regarding a circumstance is not a defense. People v. Olsen (230), Statutory rape. 3. Mistake may negate one of the elements – knowledge, recklessness, etc. 4. No common law mistake in law defense. B. MPC: §2.04 A defense if: 1. Ignorance or mistake negates the mens rea or if statutorily allowed 2. Not available if intended action/situation is also criminal. Shall be guilty of intended action 3. Mistake in Law. Belief that conduct is not illegal is a defense when a. Statute has not been published or otherwise been made available prior to the alleged illegal act. b. Acts in reasonable reliance on an official statement of the law, later determined to be erroneous, if statement made in (1) statute, (2) judicial opinion, decision or judgment, (3) administrative order or grant of permission or (4) official interpretation by a public officer or public body charged with responsibility for administration, interpretation or enforcement of that law. i. Must be a statement made by one of the above, not defendant’s own reading or interpretation of law by defendant’s attorney. Marrero (257), Hopkins v. State (272) ii. Reliance on most recent decision by highest court is reasonable, even if that decision later overturned. Albertini (271) c. Defendant must prove above by a preponderance of the evidence. II. Provocation: See manslaughter. Excuse defense (“I couldn’t help myself.”) A. Incomplete excuse defense. B. Common Law Defense: Provocation that would render an ordinary man liable to perform the acts of the defendant. C. MPC defense: Objectively reasonable extreme emotional disturbance, considering subjective state of defendant. III. Duress: Excuse defense (“I didn’t have a choice, it wasn’t voluntary.”) A. Unlike “voluntary action” this is an affirmative defense which the defendant has the burden of pleading. B. Common Law: (May be more strict for murder.) 1. Immediate and pending (If defendant had the option to seek police protection, the defense may not be used. Toscano (896)) 2. Use or threat of harm, (Requires third party action.) 3. Inducing well-grounded apprehension such that a man of ordinary fortitude might yield. (Objective test) 4. Of death or serious bodily harm 5. To self or family member C. MPC §2.09 1. Affirmative defense if actor was coerced by the use or threat of unlawful force against self or another which a person of reasonable firmness in his situation would be unable to resist. 2. Not available if actor recklessly placed self in position where coercion was likely, or negligently placed self if negligence is a culpable mens rea for the crime charged. IV. Insanity: Excuse defense (“It wasn’t really me that did that.”) A. Why: 1. Failure of mens rea if defendant does not meet knowledge tests. 2. “To protect the dignity of society itself from the barbarity of exacting mindless vengance.” B. Competency to stand trial: Must be able to consult with attorney and have rational and factual understanding of the proceedings. MPC §4.04 1. Some jurisdictions allow medication of the insane so they become competent to stand trial. 2. May not execute the insane, again some jurisdictions allow medication. C. Common Law 1. Presumption of sanity 2. M’Naughten Rule: (932) a. “Laboring under such a defect of reason, from a disease of the mind, b. As to not know the nature and quality of the act he was doing, c. Or if he did know it, that he did not know he was doing what was wrong.” i. Definition is that defendant does not know that society regards the act as wrong, rather than holding an unusual religious (or other) conviction. Crenshaw (937) ii. Delusions of religious command qualify under M’Naughten. Cameron (941) iii. Most jurisdictions apply a knowledge standard requiring comprehension not repetition of the rule. iv. Complete impairment required 3. Durham test: Defendant is not responsible for an unlawful act that is a product of a mental disease or defect. (Problem: no standards.) D. MPC §4.01 1. Not responsible if a. At the time of the conduct b. As a result of mental disease or defect c. Defendant lacks substantial capacity either d. To appreciate the criminality [wrongfulness] of his conduct e. Or to conform his conduct to the requirements of law. i. Presumption is that all criminal impulses are resistible. Lyons (949) ii. Difficult standard to apply, without scientific standards and confusing to juries. 2. Jurisdictions moving toward stricter requirements either by narrow construction of MPC or reinstatement of M’Naughten. E. Court has declared that Juries should not be informed that acquittal due to insanity always leads to commitment. V. Self Defense: Justification defense (“It was OK to do this because otherwise I would have died.”) A. Common Law 1. Physical force permissible to the extent defendant reasonably believes necessary to defend self or a third person a. Proportionality of response is required to the reasonably perceived threat. b. Reasonableness depends on the circumstances facing the defendant in his situation. Goetz (801) c. Retreat may be required. 2. From what he/she reasonably believes is the imminent use of physical force. a. Subjective/objective test – must be honest belief. b. BWS testimony may bolster reasonability of the beliefof imminent physical force. Kelly (814) c. Threat must have materialized, not be merely predicted. Norman (826) 3. B. MPC §3.04(1) 1. When the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion 2. Use of deadly force only allowed to protect against death, serious bodily harm, rape, kidnapping. 3. Requires retreat; a. Except from home or work. b. Actor must know of the ability to avoid har through retreat. C. Defense of third party: 1. Permitted by MPC §3.05 under the same “reasonably believes” tests. 2. Some jurisdictions state that a “rescuer” is justified only if attacked would be: mistake in the facts of the situation are not a defense. VI. Necessity: Justification defense (“It was OK to do this because the alternative was worse.”) A. Common Law 1. Without blame in developing the situation 2. Reasonably believed conduct was necessary to avoid greater public or private harm a. Public interest in law enforcement may balance potential public harm. Leno (865) 3. Than would reasonably result from foreseeable consequences of act. B. Necessary escape factors/elements: Unger (860) 1. Prisoner faced with specific threat of immanent death, sexual attack, substantial injury 2. No time for complaint/history of futile complaints 3. No time or opportunity to resort to court system 4. No evidence of force during escape 5. Prisoner reported to authorities after escape. C. MPC §3.02 1. Conduct which the actor believes to be necessary to avoid a harm or evil to himself or another is justifiable, provided that: a. The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offence charged; and b. Neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and c. A legislative purpose to exclude the justification claimed does not otherwise plainly appear. 2. When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this Section is unavailable in a prosecution for any offense for which reckless or negligence, as the case may be, suffices to establish culpability.