LEARNING OUTCOMES: PUNISHMENT

1. Students will be able to identify the five principal justifications for punishment
2. Students will be able to critically apply those five justifications to diverse sets of factual circumstances

Purposes of punishment - different methods of social control through the medium of punishment. People who
violate the norms established by the criminal law can be subjected to fines, imprisonment, and possibly capital
punishment. It carries a moral stigma that can carry a variety of damaging effects upon a convicted person.

Theories of Punishment
1. Necessity Defense – criminal law must enforce the moral duty to refrain from killing another, even when
necessary to save lives.
2. Deterrence – punishment will achieve “specific deterrence” of individual wrongdoers, with regard to their
criminal conduct in the future.
3. Restraint – punishment is a form of restraint, through the incapacitation of wrongdoers achieved through
confinement, may be viewed as a necessity for serious offenses.
4. Rehabilitation - people who behave badly should simply be treated as sick people to be cured, and
whether it is good for society to return individuals to society (following punishment).
5. Retribution – perspective on punishment may be viewed as a source of modern concerns as the avoidance
of disproportionate or arbitrary sentences, and the effort to make distinctions among offenders with regard
to the “grading” of their crimes and punishments.

Justifications for punishment

1. General Deterrence – Society trying to deter others from committing similar crimes.
2. Special Deterrence – Deter the particular defendant from committing future similar crimes.
3. Restraint (incapacitation) – Restrain in order to separate from society.
4. Rehabilitation – Rehabilitate people from crimes so they will not do it again. Education, betterment.
5. Retribution – Society is morally justified in taking retribution against those who violate societal norms,
especially when they commit heinous crimes. “Eye for an eye.”

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 LEARNING OUTCOMES: ACTUS REUS
1. Students will be able to analyze diverse sets of facts and determine whether a person’s acts are sufficiently
voluntary to warrant criminal sanction
2. Students will be able to identify whether a person’s condition or status is subject to prosecution, and be able to
explain why criminal sanction is or is not appropriate
3. Students will be able to evaluate whether a person’s omission of an act could give rise to criminal sanction due
to the existence of a legal duty to act

Actus Reus – act of the accused, “guilty act.”

 No crime for simply “being” (a mere status or condition)

The Requirement of a “Voluntary Act”

 An essential element of just punishment is the requirement of a “voluntary act” or “omission” where an
appropriate duty to act exist. If the alleged act was involuntary, there may be NO justification for the
imposing punishment.

MPC § 2.01 (p.18): Requirement of Voluntary Act; Omission as Basis of Liability; Possession as Act.
1. A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or
the omission to perform an act of which he is physically capable.
2. The following are NOT voluntary acts within the meaning of this section:
a. A reflex or convulsion;
b. A bodily movement during unconsciousness or sleep;
c. Conduct during hypnosis or resulting from hypnotic suggestion;
d. A bodily movement that otherwise is not a product of the effort or determination of the actor; either
conscious or habitual

A voluntary act can include “possession” of an item.

 MPC 2.01(4) provides: “Possession is an act, within the meaning of this Section, 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.”

Voluntariness
 Voluntary acts are required for crimes, no one can be punished for an act that is truly involuntary

Omissions
 Something you fail to do (or commit)
 Guilty of failure to act if physically capable
 The criminal law only finds liability where a legal, rather than moral duty exists.

Common Law: 4 duties

1. Statutory MPC § 2.01(3): 2 duties
2. Status relationship 1. When the law defining the offense provides for it
3. Contractual 2. When the duty to act is otherwise imposed by law
4. Voluntary + seclusion

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 LEARNING OUTCOMES: MENS REA
1. Students will be able to distinguish between the two common law mens rea states (specific and general intent),
as well as the four most common modern mens rea states: purposely, knowingly, recklessly, and negligently.
2. Students will be able to discuss the reasons that legislatures create “strict liability” crimes, and be able to apply
any judicial limits on such offenses.
3. Students will be able to analyze diverse sets of facts and determine whether a person’s mens rea is sufficient to
warrant criminal sanction.

Mens Rea – ‘the mind of the guilty’

 Concurrence – Actus Reus and Mens Rea must occur at the same time
 Transferred intent – will only transfer intent from one crime to another if they are the same type of harm
(e.g. try to punch me, but miss and hit mom)

Conduct element
1. The nature of the conduct (the prohibited conduct itself)
2. The attendant circumstances of the conduct (a situation that must exist for a crime to occur)
 Ex: receiving stolen property = must be actually stolen
3. The result of the conduct (where offense hinges on an outcome)

C/L View: Mens Rea

 General Intent
o The defendant intended to perform the physical act proscribed by the statute (e.g., punch
someone), though not necessarily to intend the result or to violate the law (e.g., intent to commit
the offense of battery).
 A general intentional action, without proof of desire of any particular further consequence .
 Specific Intent
o The defendant has an additional state of mind in relation to the offense, such as a purpose to
engage in illegal conduct (e.g., intent to permanently deprive owner of property).
o Actions that must be done with some specified further purpose in mind; “purpose as to some
objective”
o actual knowledge of the attendant circumstances/particular facts
1. e.g., awareness of elements of burglary

Specific Intent Crimes: General Intent Crimes:

-All other (e.g., rape, battery)
 Solicitation
 Conspiracy
 Attempt
 Embezzlement
 False Pretenses Special Category Crimes:
 Larceny -Murder (malice aforethought)
 Robbery -Arson (malice)
 Burglary
 Forgery

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MPC 4 Mental States:
1. Purposely (“consciously engage”)
 you consciously want to engage in the conduct, OR know of the circumstances
 Narrow distinction between Purpose and Knowledge. The commentaries to the MPC distinguish
the two by stating “it is meaningful to think of the actor’s attitude as different if he is simply aware
that his conduct is of the required nature or that the prohibited result is practically certain to follow
from his conduct.
2. Knowingly (“aware”)
 you’re aware of the consequences of your acts, or that the circumstances exist
3. Recklessness (“consciously DISREGARD” )
 You consciously disregard a substantial and unjustifiable risk. “I know about the risk, I don't care,
and I'm going to do it anyway.”
4. Negligence (“should be aware”)
 you should be aware of a substantial and unjustifiable risk

3 Potential ‘Conduct Elements’ in Every Offense for MENS REA

1. The Nature of the conduct
2. The Attendant Circumstances of the conduct
3. The Result of the conduct
 It is those essential conduct elements to which a culpable mental state must apply.

The “Nature” of the Conduct

 “Conduct involves the nature of the proscribed act or the manner in which the defendant acts, e.g., the
physical act of committing an assault
 Example: Punching someone is a battery—the “Nature” of the proscribed conduct is that you
purposely, knowingly, recklessly, or negligently touched another person

The “Attendant Circumstances”

 “Refers to a situation which relates to the actor’s culpability, e.g., lack of victim’s consent or stolen
status of property.” (p. 76)
 Example: If prosecuted for accepting stolen property, the “Nature” of the conduct is accepting the
property, but the “Attendant Circumstance” is that you knew the property was actually stolen

The “Result” of the Conduct

 “The accused conduct must at least be a physical cause of the harmful result, e.g., causing the death of
another.” (p. 76)
 Example: Model Penal Code § 210.5 – Causing Suicide - “A person may be convicted of criminal
homicide for causing another to commit suicide only if he purposely causes such suicide by force,
duress, or deception.”

Strict Liability
 No MENS REA requirement – it doesn’t matter what your “purpose” was, you did it, so you’re liable

Under the C/L tradition, criminality requires intent.

 MPC § 2.05(2)(a): “when absolute liability is imposed with respect to any material element of an
offense defined by a statute other than the Code and the conviction is based upon such liability, the
offense constitutes a violation.”
 May be punished only by fine
 Despite the C/L tradition of an intent requirement, strict liability statutory crimes are permissible under
some conditions. It depends on whether the crime is traditionally bad in itself with a common-law
history (malum in se) or a new creation (malum prohibitum).

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If intent is read into a statute, into what element(s) should it be read?
 Should it apply strictly to the verb, to the phrase as a whole, or to some elements and not others? What
principles should guide?
 General principle: a mens rea requirement should attach to elements that could make criminals
out of ordinary people for innocent behavior.
 Ordinary verb usage: in Staples, he had to knowingly possess a gun known to be a machine gun,
because it could not be knowingly possessed if its status was not known.

Why Allow Strict Liability?

 No MENS REA requirement – it doesn’t matter what your “purpose” was, you did it, so you’re liable

“Public Welfare” or “Regulatory” Offenses

 Limited circumstances dealing with public safety

TEST (ask yourself)

1. Is the penalty a means to regulate “dangerous devices of a character that places” the defendants “in
responsible relation to a public danger”?
2. Is there an indication of legislative intent?
3. Is there a potentially harsh penalty, or is this a mere “violation”?
4. Would this criminalize a broad range of apparently innocent conduct?

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 LEARNING OUTCOMES: COMPLICITY (ACCOMPLICE)
1. Students will be able to discuss the four common-law categories and two modern categories of complicity, and
identify them in a given set of facts
2. Students will be able to identify the actus reus and mens rea components of complicity in a given set of facts
3. Students will be able to explain why the law permits “vicarious liability” and, given a statute, be able to
determine whether a corporation or its agents may be found vicariously liable

C/L Felony Complicity Categories

1. Principal in the First Degree - actual perpetrator who committed the crime
2. Principal in the Second Degree – “aider and abettor” present at the scene
3. Accessory Before the Fact – “aider and abettor” not present at the scene
4. Accessory After the Fact – knowingly renders assistance after crime finished

C/L Misdemeanor Complicity

 No distinction – everyone is a Principal
 By contrast, (C/L) misdemeanor cases “did not admit of accessories either before or after the
fact”; instead, all parties to a misdemeanor, whatever their roles, were principals (no distinction
– everyone is a principal)

Modern View Categories

1. Principals (Merge 1, 2, 3 from C/L)
2. Accessory After the Fact
 The merger of principals and accessories has occurred in all American jurisdictions.
 Exception: is for “accessories after the fact.”

The Actus Reus of Complicity: “Aiding or Encouraging” the Principal to commit the crime

 Lane v. Texas (1999)

 Rule: A person who is merely present at the scene of the offense is not an accomplice; an
affirmative act or omission is required.

The Mens Rea of Complicity:

 Two Components (both must be met):

1. Intent to assist Principal in committing crime
2. Intent that Principal actually commit the crime

Mens Rea Issues for Complicity

Vicarious Liability
 One person is made criminally liable, though without personal fault, for the bad conduct of someone else!
 This disfavored doctrine usually reserved for corporations and their agents
 May or may not place a mens rea requirement on the corporation or agent

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 LEARNING OUTCOMES: SOLICITATION & ATTEMPT
1. Students will be able to explain the policy reasons in favor of criminalizing inchoate offenses
2. Students will be able to identify the elements of attempt and solicitation and analyze them in a given set of
facts
3. Students will be able to evaluate whether the defenses of abandonment and impossibility apply to a given set of
facts involving attempt

Solicitation
 Crime of asking another person to join in a course of criminal conduct, with the intent that the other person
commit the target crime or participate in its commission. Other person must be aware it’s a crime!
 In most jurisdictions, “Solicitation” (an inchoate or incomplete crime) will merge into the completed
crimes of attempt, conspiracy, and the target crime.

Elements of Solicitation:
1. Actus Reus: Did Defendant communicate a request that another person commit a target crime (e.g.,
command, encourage, advise, invite)
2. Mens Rea: Did Defendant intend to have the other person commit the target crime (e.g., this is no
joke)

Attempt
 An inchoate (i.e., incomplete) offense
 Actus Reus: Element (the act):
 Some “Overt Act” that goes beyond mere preparation (C/L)
 A “Substantial Step” (MPC & Majority of States)
 Mens Rea: Element (the intent):
 Specific Intent to commit the crime (C/L)
 “Purposely” intends to commit the crime (MPC)

Actus Reus Tests

C/L & Minority of States: a variety of tests designed to find out if an “overt act” went “beyond mere preparation”
 “Dangerous Proximity” – defendant’s acts have come dangerously close to committing the crime, going
beyond mere preparation
 “Last Proximate Act” – defendant believes he has done all that is necessary to commit the crime
 “Indispensable Element” – NO attempt if an element outside defendant’s control remains to be done

Majority of States & MPC: “Substantial Step” (p. 253)

 Acts which are “strongly corroborative of the actor’s criminal purpose.” (MPC’s Substantial Test is
easier to use to prove Attempt)
 Did the defendant take a “substantial step” towards committing the target crime?

Mens Rea: Three Parts for MPC (Test to ask yourself)

1. Did the defendant (specifically or purposely) intend to commit the target crime?
2. Did the defendant (generally) intend to do the acts that constitute the overt act or substantial step?
3. Did the defendant (at least) have the intent that would be required to actually commit the target crime
itself? (e.g., First Degree Murder = premeditated) (ATTENDANT CIRCUMSTANCES)
 1 and 3 should always coincide with each other
 Attempt will never be a target crime because a target crime is one that is carried out, where
attempt is something “attempted to commit”

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Reminder… Merger of Mens Rea
(-------------------------------------------Purposely--------------------------------------------)
(--------------------------------------Knowingly--------------------------------------)
(--------------------------------Recklessly---------------------------------)
(-----------------------Negligently------------------------)

When faced with Attempt – ask these questions

 What was the target crime?
 What was the Actus Reus?
 Substantial Step? (MPC)
 Physical Proximity? (C/L)
 Dangerous Proximity? (C/L)
 Indispensable Element? (C/L)
 How can you prove the three mens rea elements?

Abandonment (of Attempt)

 C/ L Rule: Does NOT let you get out of an Attempt crime
 “once . . . the crime of attempt is accomplished, the crime cannot be abandoned”

 MPC: Abandonment is an affirmative defense that he abandoned his effort to commit the or otherwise
prevented its commission, under circumstances manifesting a complete and voluntary renunciation of
his criminal purpose. However, this defense does not affect the liability of an accomplice who did not
join in such abandonment or prevention.
 Burden of proof is put on the defendant to prove 2 things:
1. Defendant completely abandoned the effort and prevented the crimes commission; AND
2. Abandonment was fully voluntary (it was not motivated by outside circumstances that
increased the risk of failure)

Impossibility (of Attempt)

 Legal Impossibility – A COMPLETE defense
 Occurs when one attempts to commit a target crime that is NOT, in fact, illegal
 Ex: You attempt to scalp a football game ticket when scalping is not actually illegal (but
you thought it was  can’t convict someone for committing a legal act)
 Factual Impossibility – NOT a defense
 Occurs when one attempts to commit an ACTUAL target crime, however, it impossible to
complete due to some mistaken fact.
 Ex: You attempt to murder someone with a gun but it turns out that you are using a
water pistol. (If the gun was real you would have killed them because you had the intent
to kill).

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 LEARNING OUTCOMES: CONSPIRACY
1. Students will be able to identify the elements of conspiracy and analyze them in a given set of facts.
2. Students will be able to distinguish between the unilateral and bilateral approaches to conspiracy, as well as the
difference between “chain” and “wheel” conspiracies.
3. Students will be able to evaluate whether the defense of renunciation applies to a given set of facts involving
conspiracy, and determine whether a conspirator should be deemed culpable for the criminal acts of co-
conspirators.

Conspiracy (Rationale)
 Used to respond to the special danger to society posed by group criminal activity. It is more than likely, in
theory at least, that a group will succeed in its criminal endeavors than will an individual, acting alone.
 A “general” conspiracy offense statute is to prohibit individuals from agreeing with someone else to
commit another offense.

Conspiracy Elements
 Actus Reus
1. Agreement to achieve a common criminal crime
2. A [minimal] “overt act” (not even a substantial step, just a minor step. Just need evidence that the
conspiracy is moving forward) on the part of one of the co-conspirators toward the object of the
conspiracy (modern jurisdiction, NOT common law)
 Mens Rea
1. Specific intent to agree with another person to achieve a common criminal objective
2. Knowledge of the unlawful act that is the product of an agreement

Unilateral v. Bilateral Conspiracy Offenses

Modern/MPC Approach: Unilateral

 Focuses on the act of a single individual who is or believes that he is agreeing with another person to
commit a criminal act
 Only requires an assessment of the subjective individual behavior of the defendant
 Includes police informants and undercover cops

C/L Approach: Bilateral

 Requires an agreement between 2 or more persons to commit, by concerted action, an unlawful act or a
lawful act by unlawful means
 Wharton Rule: Agreement between two or more persons to commit an offense does not constitute
conspiracy when the target offense is defined that it can only be committed only by two persons.

“Chain” Conspiracy
 A “chain” conspiracy is a single conspiracy where individual members (the “links”) interact only with the
next link in the chain and may or may NOT know any of the other links farther up or down the chain.
 Narcotics importation and distribution schemes (drug trafficking ring) are common examples of
chain conspiracy  they all know the criminal objective to result

“Wheel” Conspiracy (Hub and Spoke)

 A “wheel” conspiracy, in contrast, involves separate chain conspiracy’s (the “spokes”) linked to each other
through a common individual (the “hub”). Spokes must be connected somewhere on the wheel  through
knowledge by the separate conspirators of the existence of other conspirators or conspiracies. They all have
or share a common goal.
 It all depends on the knowledge level and agreement of the people under the hub (Do they know
about the other people in the wheel?)

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The Overt Act

Crockett case
 An overt act between co-conspirators is NOT just the agreement (taking place) itself; you need an
“overt act” towards committing the crime based on the conspiracy to commit it.

Withdrawal (Renunciation)
 Similar to Abandonment of Attempt

Modern/MPC view – 3 Elements:

 The conspirator who withdrawals has an affirmative defense where he must shoe that (burden
is on the co-conspirator to prove this)
1. He Thwarted the success of the conspiracy
2. He made “complete” renunciation of the criminal purpose
3. His renunciation was voluntary

Merger
 General Rule: A conviction for conspiracy to commit a target crime DOES NOT merge with a
conviction for a target crime itself

Culpability of Co-Conspirators

Pinkerton Rule (Supreme Court Case) – A conspirator is criminally (vicariously) liable for all reasonably
foreseeable acts (i.e. substantive offenses) committed by their co-conspirators in furtherance of, and within the
scope of, the conspiracy conspirator withdrawals.
 An “overt act” of one partner may be the act of all without any new agreement specifically directed
towards the act.
 Unless the conspirator withdrawals himself and stopped the foreseeable actions of the co-conspirator,
they will be charged with the conspiracy.
 Criminal intent to do the act (i.e. commit the substantive offense) is established by the formation of the
conspiracy.
 Transferred intent [from the conspiracy to the actual act] and vicarious liability [of “agent” (co-
conspirator) to the other party] play a major role here.

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