Justifications for Punishment

Retributi vism: punishment based on crime’s severity. Takes into account

 Societal values/morals
 Morality and wrongdoing merits punishment
 Deontological – Kant, must punish at all costs & be proporti onate to
moral wrong
o There can be no undeserved punishment
 Retrospecti ve Look – looks at the past wrongs a person committ ed and
punishes person for those wrongs.

Uti litarianism: punishment to deter future crimes.

 Teleological – create a bett er future
 Types of Deterrence:
o Specifi c
Inti midati on: infl ict pain so next ti me ∆ will think about
the pain suff ered when committi ng a crime.
 Incapacitati on: take away ∆’s ability to commit a crime.
Put ∆ in jail, or to death, etc.
 Rehabilitati on: teach ∆ why their conduct was wrong and
let them learn why it is wrong.
o General: bystanders see punishment and are deterred from
committi ng crime
 Educati on: people learn of conduct is a crime
 Inti midati on: people don’t want to receive that
punishment
 Norm Reinforcement: conduct is wrong and not the norm
o Preventi ng Private Retaliati on: must punish so families don’t go
aft er each other, etc.
 No useless punishment, no needless punishment. It must be proper
and proporti onate

Principle of Least Eligibility: the person best off in prison should be worse off
than the worst off person in society.

Broken window Eff ect: Disorder cause more disorder. Cleaning up NYC street
makes people less likely to commit more crimes.
Actus Reus
Requirement of an Act: Any (1) past (2) voluntary (3) wrongful or
potenti ally harmful (4) conduct (5) specifi ed (6) in advance (7) by statute.
  At Common Law: must be either a voluntary physical act or an
omission when there is a legal duty to act.
Voluntary act: is a movement of the human body that is, in some minimal
sense, willed or directed by the actor.
 Intent alone is NOT criminal, must be coupled w/some overt act.
Unlawful intent which goes unexecuted amounts to merely a thought
and therefore is not punishable. [MARTIN]
o Keeping a place is innocent, though you planned to do
something illegal w/it you cannot be punished unless you
execute your plan.
 Involuntary acts occur while sleepwalking, seizures, refl exes,
convulsions. These are NOT suffi cient to warrant criminal punishment.
The act must be voluntary.
o Seizures can be punished under certain circumstances. Ex. Guy
gets into car knowing he has a seizure problem, while driving he
has a seizure and causes accident killing another. He can be
tried and found guilty b/c the act of getti ng into the car will
suffi ce as a voluntary act.
 Cannot punish status, (i.e. homeless drug addict etc.) b/c it goes
against the 14 t h Amendment’s due process.
Omission: can be charged w/a crime when person has a duty to act
 Duty may be imposed based on:
o Relati onship (parent/child – parent has duty to act and failure
to prevent abuse to child can result in criminal liability)
o Statute
o Assumed contractual duty (lifeguard, babysitt er)
o Voluntary assumpti on of care that isolates an individual and
preventi ng others from rendering aid.
 Only owe a duty when you voluntarily take person into
your care otherwise no duty to act.
 Must be physically capable to perform the duty imposed (father who
cannot swim can’t be responsible if his son drowns.)
 Must also know the fact to owe a duty (father who doesn’t know it’s
his son who’s drowning cannot be liable.)
Possession: the failure to terminate possession once a person learns of
an illegal item’s presence is suffi cient to sati sfy the actus reus.
 Enforced through Statutes, knowingly taking or keeping a forbidden
item is a voluntary act.
 Constructi ve Possession: power & intenti on to exercise control, or
dominion & control, over an object not in one’s actual possession.
o Specifi c accessibility to contraband can establish constructi ve
possession. If ∆ had right or authority to exercise control over
an illegal object.
Mens Rea
Requirement of a Guilty Mind – mental state of actor when committi ng
actus reus
 Generally must have a mens rea to be guilty.

 Culpability: general morally blameworthy state of mind,

o Requisite mens rea if ∆ committ ed actus reus if did so w/morally
blameworthy state of mind
 Any morally blameworthy state of mind will suffi ce
 Elemental: Parti cular wrongful state of mind, specifi c state of mind
found in crime’s defi niti on required.
o Must show ∆ committ ed actus reus w/a specifi c mens rea
defi ned by crime’s defi niti on

Strict Liability: don’t care about mens rea, even if done innocently its sti ll a
crime. Certain conduct is not morally wrong but sti ll dangerous. (Mislabeling a
prescripti on). Public welfare off ense. Presumpti on against strict liability, but if
it’s a public welfare off ense then it will be strict liability.
 Generally courts will infer a mens rea element even if there is not one
on the face of the statute. But if it’s clear the legislature intended a
crime to have a strict liability then the court will enforce them.
 Malum Prohibitum: bad only b/c its prohibited.
o Driving 45mph on a street, not wrong to drive 45mph but wrong
b/c law says it is.
o Usually don’t involve imprisonment and if so its not too long.
 Malum in se: wrong in itself
o Rape, murder, etc.

MPC Levels of Culpability

 Purposefully – conscious objecti ve to cause result
o Conduct: conscious objecti ve
o Att endant Circumstance: aware/hope/believe
 o Result: conscious objecti ve
 Knowingly – aware result is virtually certain to occur
o Conduct: Aware
o Att . Circ.: Aware
o Result: Aware result is virtually certain.
 Recklessly – [DEFAULT ] consciously taking a substanti al and
unjusti fi able risk of causing the harm that occurred
o Conduct: Conscious disregard of a substanti al and unjusti fi able
risk
o Att . Circ.: conscious disregard of a substanti al and unjusti fi able
risk
o Result: conscious disregard of a substanti al and unjusti fi able
risk.
 Unjusti fi able risk taking: Reasonable person would not
take risk
 B < P * L test balance gravity and probability of the
harm against the reason for taking the risk.
 Substanti al: of real importance
 Conscious Awareness by actor that he was taking the
substanti al and unjusti fi able risk.
 Negligently – gross deviati on from the standard of care a RPP would
observe in ∆’s situati on
o Conduct: gross deviati on from standard of a reasonable person
o Att . Circ.: gross deviati on from standard of a reasonable person
o Result: gross deviati on from standard of a reasonable person.

MPC: [GREATER SATISFIES THE LESSER]

 If negligence is required:
o Purpose, knowledge, reckless and negligence will suffi ce
  If recklessness is required:
o Purpose, knowledge, or recklessness will suffi ce
 If knowledge is required:
o Purpose or knowledge will suffi ce
MPC: [DISTRIBUTE MENS REA TERMS]
 Apply the mens rea to all other elements (result, att . Circ., and
conduct) that follow a mens rea term in a statute.

Common Law Levels of Culpability

 Intent (= knowingly + purposefully)
 Recklessly:
 Negligently

Mens Rea Excuse : Mistake of Law

 Prosecuti on must prove ∆ had required mental state for each conduct,
att endant circumstance, and result element of a crime, but
prosecuti on does not need to prove ∆  knew it was an off ense/unlawful
(unless statute requires ∆ to know it is unlawful).
 ∆ can negate liability when there is a mistake of fact b/c that will
negate the mens rea required for the commission of a crime.
o But b/c knowledge of the law is (typically) not required mistake
of law will not negate such liability. .
 Retributi vism: mistake of law not being an excuse is proper b/c you’re
punishing the moral wrong that is committ ed and the law simply says
it is morally wrong to do (X).
 Uti litarianism: proper b/c people will be on noti ce that mistake of the
law is not an excuse and therefore go out and fi nd out what the law
says.
 Good faith advice from an att orney or other legal counsel is not an
excuse for violati on of the law, and cannot be relied on as a defense.
o Policy: If a person accused could be exempted from a crime and
its punishment b/c he received advice from counsel, such advice
would become paramount to the law.
 Willfulness: Government must prove (1) a law imposed a duty, (2) the
∆ knew of the duty, and (3) ∆ voluntarily and intenti onally violated
that duty.
 o EX: Guy not paying taxes b/c he was told his paychecks were not
really income and therefore he didn’t need to pay taxes on
them.
 Majority Rule: Reliance is a defense. Twitchell – ∆’s reliance on a
quote in religious publicati on from district att orney is a permitt ed
excuse for them to not be charged. (But reliance on a regular att orney
is not a defense.)

Mens Rea Excuse: Diminished Mental Capacity

 ∆’s presumed sane, and ∆ has burden of proving diminished mental
capacity to negate the required mens rea.
 Minority Rule/MPC: Evidence of ∆ suff ering from a mental disease or
defect is admissible if it is relevant to proving ∆ does not have
required mens rea.
o Must be a clinically recognized mental disease or defect to be
permitt ed
 Childlike mental conditi on of being too naïve and having
to believe anything a man says is not a recognized
diminished capacity defense.
 A person who is clinically insane is excused from criminally
responsibility for his acti on b/c he lack the capacity to disti nguish
right from wrong w/respect to the act or to adhere to the right
conduct or refrain from wrongful conduct.
 MPC/Majority Rule: Diminished capacity b/c of voluntary intoxicati on:
o When the requisite mens rea of a crime is that a person act
“purposefully” or “knowingly” evidence of voluntary
intoxicati on is admissible to disprove the requisite mental state.
But it is required that ∆ show a great protrusion of the faculti es
that the requisite mens rea was totally lacking. To successfully
invoke this defense, the ∆ must show that he was so intoxicated
that he didn’t have the intent to commit an off ense (only likely
to exist in very few cases.)
Homicide Offenses
I. Murder
Common Law Murder – killing a human being with malice aforethought…
killer
 Intent to kill – (CL Intent = MPC knowingly + purposefully)
 Intent to cause serious bodily injury
 Depraved Heart – did not intend to kill person but person acted w/an
extreme indiff erence toward human life.
 Felony murder – killing a person while committi ng a felony.
Year-and-a-Day Rule: ∆ may not be prosecuted from criminal homicide
unless the victi m dies w/in one year and a day of the act infl icti ng the fatal
injury.

Common Law Manslaughter – killing a human being

 Voluntary – intenti onal killing w/o malice aforethought
 Involuntary – unintenti onal killing w/o malice aforethought (i.e. MPC
reckless or criminally negligent killing).

Sentencing – Murder: an unjusti fi ed killing manifesti ng:

 (1) intent to cause death, or
 (2) intent to infl ict serious bodily harm, or
 (3) extreme recklessness w/respect to a serious risk of harm to the life
of another
o Risky acti on manifests so unworthy or immoral purpose as to
suggest callous indiff erence to human life
 (4) under the felony murder rule, a willingness to undertake even a
very small risk of death where the risky conduct is so unworthy as to
establish guilt of a serious felony.
nd
2 Degree Murder [Default] – intenti onal killing of a human being, or
unintenti onal but reckless killing of another w/manifestati on of an extreme
indiff erence to the value of human life (i.e. Depraved Heart Murder).
 It is reasonable to infer that a person who fi res a gun at another
person intends to kill that person.
1 s t Degree Murder – intenti onal and premeditated murder; or the killing
during the course of committi ng a major felony (i.e. robbery, burglary, rape,
arson, or mayhem).
 Punishment: 15 to life, w/ or w/o parole, can be subject to death
penalty if sought by government (Capital punishment exists in 37
states.)