Criminal Law

Question 1

what’s up with the criminal law system now?

Answer 1

• David Garland: Imprisonment becomes mass incarceration when it systematically imprisons entire segments of the population instead of individual offenders
• National Research Council: Increased rates of imprisonment is due to increased enforcement via imprisonment rather than rates of criminality
• Systematic flaws within Criminal Justice System:
o Decentralization of authority to various actors with various agendas
o Punishment outcomes result from a highly discretionary process
o High volume of cases, insufficient resources, ½ cases are dropped
o Decision makers are largely politically elected (judges, sheriffs, DAs, Congress)
• 2.3 mil. incarcerated – 90% in state facilities – mostly violent crimes – mostly men– ⅓ B; ⅓ W; ¼ H
• “We have the criminal justice system we want”
o Laws are made and enforced by the democratically elected

Question 2

what are the four main theories of punishment?

Answer 2

Theories of Punishment:
1) Retributivist (e.g., California Penal Law)
2) Utilitarian (e.g., New York Penal Law, original MPC)
3) Hart’s “Classic Mixed”: Retributivism answers “what give the state the right to punish” (justice), and utilitarianism provides “why the state should punishment” (social benefits)
4) Limiting Retributivism: Retributivism sets range – utilitarian considerations pick point
(New MPC)

Question 3

What’s Morris’ fair play theory?

Answer 3

Morris: Fair Play Theory
Social contract to abide by certain rules
Punishment is just when rules are broken because:
1. Assures all will follow the rules
2. Reestablishes equilibrium after offender gained and unfair advantage by law-breaking
3. Mechanism to preclude unequal burdens

Question 4

How does Murphy respond to fair play theory?

Answer 4

Murphy: Not everyone benefits from the rules equally. Poor owe no debt for punishment to erase. Punishment illegit until everyone benefits from SQ

Question 5

How does Hampton respond to fair play theory?

Answer 5

Hampton: Crime is not perpetrated b/c lack of restraint. Rape/murder is not a benefit people covet.

Question 6

How does Mackie respond to fair play theory?

Answer 6

Mackie: Punishment should depend on moral wrongness, not advantage that was gained by the act. Criminal suffering doesn’t repay or erase anything

Question 7

Bentham’s utilitarianism

Answer 7

Bentham
Law exists to augment total happiness
Law excludes behaviors that diminish happiness
Cost-benefit analysis: Punishment is an evil, so it can only be justified to exclude some greater evil

Question 8

The effect of sanctions on detterence?

Answer 8

Note on Deterrence
Presence of sanctions has a deterrent effect
Less clear that variations in sanctions do so
National Academy: Certainty > Harm of sanctions
Moore: Rehab’s goal = make criminals safe NOT successes (paternalistic, diverts funds, moral decay)
Dilulio, NYT: Prisons prevents 12 crimes/inmate/yr
Donogue&Sligman: “12” based on stock of inmates not marginal inmate that would be released
DOJ (1983): Unjust to selectively incarcerated those with high likelihood of recidivism

Question 9

Regina v. Dudley and Stephens (England, 1884)

Answer 9

Δs cast away at sea; decided to kill young cabin boy for food; thought there was no rescue in sight; Δs argued necessity; Δs lose
• Holding: No common law defense of necessity for murder. Temptation =/ necessity.
• Example of case where retributivist and utilitarian arrive at different conclusion
o Retrib.: Not very blameworthy—boy would die anyway, adults had families
o Util.: We want to deter killings of “necessity” and protect weak from the strong

Question 10

United States v. Madoff (USDC, 2009)

Answer 10

 Ponzi scheme that robbed hundreds of life savings
• Holding: Sentenced to consecutive NOT concurrent sentences for symbolic effect
o Retributivist: Stole life savings and pensions, deserves full punishment (but less blameworthy because he turned himself in)
o Utilitarian: Symbolic effect aids general deterrence by restoring trust in institutions and victim compensation (but no specific deterrence because old)

Question 11

Realities of Enforcement:

2 approaches

Answer 11

Realities of Enforcement:

1) Broken Windows Policing  Policing quality of life crimes (litter) to deter major crime
2) Hot Spot Policing  Stationing more police officers in high crime area to stop and frisk

Question 12

elements of criminality

Answer 12

Elements of Criminality:

1. Legality – need law that makes action illegal
   a. Can’t be too vague or provide too much discretion
2. Actus reus – a bad act
3. Mens rea – bad intent
   a. If none: determine strict liability or read in recklessness
   b. Would person be guilty of diff crime if world was as they believed
   i. Apply lesser crime principle
4. Causation – need causal relationship between act and outcome

Question 13

Elements of Criminality: (Exceptions)

Answer 13

Elements of Criminality: (Exceptions)

1. Legality – need law that makes action illegal
   a. Can’t be too vague or provide too much discretion
2. Actus reus – a bad act (no thought crimes) (Omission & Duty)
3. Mens rea – bad intent (or negligence/recklessness) (Felony Murder)
   a. If none: determine strict liability or read in recklessness
   b. Would person be guilty of diff crime if world was as they believed (mistake of fact)?
   i. Apply lesser crime principle
4. Causation – need causal relationship between act and outcome (Attempt)

Question 14

City of Chicago v. Morales (SCOTUS, 1999)

Answer 14

 Δ raised constitutional objection to Gang Congregation Ordinance that prohibits “staying in one place for no apparent purpose” with a suspected gang member and failing to follow a dispersal order. Police have full discretion as to which purposes are apparent and thus when to issue order.
• Holding: Law is unconstitutionally vague – “apparent purpose,” “order,” and expected “dispersal” all unclear
• Majority’s Rule: Statutes can be invalidated for vagueness under due process clause if they
o (1) Fail to provide notice to ordinary people as to what conduct is covered
o (2) Authorize and encourage arbitrary and discriminatory enforcement
• Dissent’s (Thomas) Rule: If there is an unmistakable core that a reasonable person would know if forbidden by law, the enactment is constitutional
• Note: State Supreme Court = final arbiter of state statute interpretation – SCOTUS rules on constitutionality of that interpretation

Question 15

Johnson v. United States (SCOTUS, 2015)

Answer 15

Δ had three previous “violent felon” convictions and was convicted of being a felon in possession of a firearm under Armed Career Criminal Act. Trial court found that offense constituted “conduct that presents a serious risk of physical injury”
• Holding: Law is unconstitutionally vague: ACCA requires a categorical approach, forcing court to abstract what an ordinary “felony possession” crime looks like and how much risk it creates such that it constitutes a “violent felony”
• Majority’s Rule: Law can be invalidated under due process clause when it is “so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Kolender.
• Dissent’s (Alito) Rule: Law invalid only if impermissibly vague in all of its applications. Hoffman Estates. Acts of Congress are presumptively valid.

Question 16

What does the Model Penal Code require for actus reus?

Answer 16

• MPC §2.01(1): Not guilty unless liability is based on conduct which includes a voluntary act or omission to perform an act the actor is physically capable of
• MPC §2.01(2): Acts that are not voluntary: (a) reflex / convulsions; (b) movement during sleep / unconsciousness; (c) hypnosis; (d) not from effort or determination of actor (either conscious or habitual)
o Masur: overinclusive ex: hypnosis, underinclusive ex: trauma

Question 17

Martin v. State (AL, 1944)

Answer 17

Δ was arrested by police officers and taken onto highway; while on highway, “manifested a drunken condition” by using loud and profane words; Δ was convicted of being drunk on a public highway
• Holding: The statute in question presupposes voluntary appearance on the public highway; Δ cannot be convicted of a crime under the statute if Δ was involuntarily taken to the highway. May have included a voluntary act if Δ started chain of events that would foreseeably lead to him appearing in public in a drunken place
• Would have been guilty under MPC §2.01(1) because he did at least one voluntary act

Contemporary Circuit Split on Martin’s application when an individual is arrested for another reason and brought to jail with a controlled substance on their person

Question 18

when is possession voluntary?

Answer 18

• Possession Voluntary:
o Example: In California, Low: Δ had opportunity to avoid the prohibited act by relinquishing the controlled substance prior to arriving at jail, so guilty
o Example: In North Caroline, Barnes: necessary voluntary act occurred “when the Δ knowingly possess[ed] the controlled substance”
o Rationale: Do not want to enable the drug trade in jails or prisons
• Possession Involuntary:
o Example: In Washington, Easton: Δ’s only option to relinquish the controlled substance would result in a different prosecution, so no volitional choice
o Rationale: Do not want to force people to incriminate themselves in America

Question 19

when do they punish being?

Answer 19

• Jones v. City of LA homeless people of LA bring a suit arguing that their sleeping in public is not voluntary and thus should not be criminal - the U.S. Court of Appeals agreed, holding that the state may not criminalize ‘being’ - Rymer J dissented, arguing that sitting, lying or sleeping on city sidewalks is conduct, not state of being
• Deportation: two cases where Δ evicted from Canada and charged with being “voluntarily present and found in the United States”
o Marcias: Second Circuit reversed conviction and held that they had been returned involuntarily
o Ambriz-Ambriz: Ninth Circuit upheld conviction because they never been in Canada illegally and thus they never left the United States