M2: Punishment

Question 1

Identify the major purposes/goals/objectives of punishment.

Answer 1

Overall, there are 5 basic goals of punishment:

1) Deterrence (general and specific)
2) Incapacitation and protection of the public
3) Denunciation and condemnation
4) Retribution
5) Rehabilitation

Question 2

Identify the 2 major schools of punishment theory

Answer 2

The two primary schools of punishment theory are utilitarian and retributivist.

Question 3

Articulate the primary philosophy of each of the 2 major schools.

Answer 3

Utilitarians look to the utility of the punishment and desire to punish only as much is necessary to achieve the desired effect (deterrence for instance). Retributivists punish because it is the right thing to do, because the criminal deserves to be punished, even if it would not lead to some sort of public benefit.

Question 4

Articulate pros and cons of each theory of punishment

Answer 4

Utilitarianism:
Pros- forward looking, seeks to better society, stresses rehabilitation and reform

Cons – could justify punishing the innocent, removes criminal from the sphere of justice altogether

Retributivism:
Pros – focuses on the crime itself, emphasizes responsibility, punishment is necessary because it is morally right. This prevents private vengeance, acknowledges the emotional and moral elements, restores societal balance, demonstrates respect for personhood of criminal

Cons – senseless, glorifies anger and hatred, based in emotion rather than reason

Question 5

Articulate how “proportionality” differs under each theory of punishment

Answer 5

For utilitarians, the punishment must be proportional to the amount required to achieve the societal result.

For retributivists, the punishment must be proportional to the crime (eye for an eye kind of thing).

Ex: retributivists might argue that a murderer be put to death even if the world was about to end and the person was contrite and reformed. Utilitarians would say executing such a person serves no purpose and therefore should be avoided.

Question 6

Identify how proportionality relates to the constitution.

Answer 6

Under the U.S. Constitution, jurisprudence reflects that proportionality is embodied in the 8th Amendment, the prohibition against cruel and unusual punishment. Some jurists (famously Justice Antonin Scalia) say there is no proportionality principle present in the constitution.
For those that agree that a proportionality principle exists in the Constitution, there remains a debate between the utilitarian and retributivist notions of proportionality.

Question 7

Articulate the major differences between the majority and dissent in Ewing.

Answer 7

1. The majority is cobbled together from those who believe no proportionality principle exists, and those who believe that it does exist and can apply to either theory of punishment.
2. The minority decision is unified and holds that the proportionality principle does exist and based on precedent applies the traditional understanding of proportionality between the punishment and the crime.

Question 8

Identify the three corollaries of the principle of legality.

Answer 8

(i) The law must be clear and comprehensible to the reasonable person (vagueness, statutory interpretation)
(ii) Criminal statutes should not be crafted so as to “delegate basic policy matters to police, judges and juries on ad hoc or subjective basis.” (ie. Statute cannot be so broad or vague that it lacks meaning and ultimately it is the police, judges and juries giving it content instead of the legislature)
(iii) Strict construction: any uncertainty should be biased in favor of the accused (lenity)

Question 9

Articulate why a vague statute would violate the principle of legality

Answer 9

A vague statute would violate the principle of legality because

1) it would not provide sufficient clarity to actors by which they could conform their conduct; and
2) because the vagueness means that its meaning would be interpreted and applied, perhaps wrongly, by those in charge of enforcement – the police.

Question 10

Identify the debate between the role of judges (in a common law system) and the legislature.

Answer 10

In law, common law is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. The defining characteristic of “common law” is that it arises as precedent.
Judges are in charge of interpreting and applying the law. They are also empowered to draw from principles, to extrapolate, to “create” law.

This is different from statutory law. Statutory law is created by the legislature. Under our system of government, we elect our legislators, and the legislators make the laws, not judges. Each time a judge extrapolates and creates new law, it violates this separation of powers.

Question 11

Articulate the usefulness of common law doctrine today.

Answer 11

Common law remains useful to interpret statutes by giving context to their inception, and filling in gaps in meaning, especially for words and phrases that have changed in meaning over time.

Question 12

Identify the parameters of “ex post facto.”

Answer 12

The prohibition against ex post facto means that the legislature may not make something illegal after the fact. In practical terms this means that the legislature may not:
+ make something criminal that was innocent at the time the person committed the act;
+ increase the penalty for a crime after the act was committed;
+ increase the severity of the crime after the act was committed (make it into a felony from a misdemeanor for instance; or
+ eliminate or reduce the scope of defenses or evidence available (eliminate the availability of self defense for the crime of murder for instance).

Question 13

Identify five sources to which a court might turn in interpreting a statute.

Answer 13

1) Dictionary; 2) old holdings; 3) other statutes; 4) legislative hearings or discourse and discussion on the matter; 5) common understanding; common law definitions

Question 14

Articulate what can lead to the “undue discretion in law enforcement.”

Answer 14

A vague statute can lead to undue discretion in law enforcement because it fails to provide sufficiently precise guidelines on which police can act. The loitering laws are a good example because they prohibit people loitering “with no apparent purpose”. Such vague definitions often result in biased policing patterns.

Question 15

Articulate why the Actus Reus is an essential ingredient of a crime.

Answer 15

Actus reus is an essential ingredient of the crime because:

1) our principles of punishment demand that we give deterrence a chance to work – deterrence is working for those who never move from thought to deed
2) we don’t want to punish people for bad thoughts (everyone has bad thoughts)
3) action is the most reliable way to tell what people intended

Question 16

Define “voluntary act” in the context of actus reus.

Answer 16

In the context of actus reus, “voluntary act” is a willed muscular contraction. An act done under duress is still a “voluntary act” for the purposes of the actus reus component.

Question 17

Distinguish conduct crimes from result crimes, and discern the portion of the statute that is the attendant circumstances.

Answer 17

Conduct crimes = where the conduct itself is criminal even if no harmful result occurs, like “driving while intoxicated” or “practicing medicine without a license.”

Results crime = crime where the harmful result is the criminal result we seek to avoid. Causing someone’s death would be an example.

Some crimes include both conduct and result, like “recklessly operating a motor vehicle resulting in death.” Killing someone, or murder, can also be understood as both a conduct and a result crime, because killing is the conduct that results in someone’s death.

Attendant circumstances are neither the actus reus nor the mens rea, but conditions that still must be proven in order to establish an offense. For instance, in the above noted crime, “motor vehicle” is an attendant circumstance. In the crime of burglary – “breaking and entering the dwelling house of another at night with the intent to commit a felony therein”- the attendant circumstances are “dwelling house of another at night” and must be proven to establish culpability for the crime.

Question 18

Articulate how the burden shifts in a criminal case – for raising a reasonable doubt and for an affirmative defense.

Answer 18

There are two burdens in a criminal case: the burden of production and the burden of persuasion.

The prosecution always has the burden of production (raising sufficient evidence to go forward with a matter) and the burden of persuasion (proving beyond a reasonable doubt) for each and every element of the offense.

The defense has the burden of production to raise a reasonable doubt, or the burden of persuasion (on a balance of probabilities) for any affirmative offense.

Question 19

Define the defense of automatism and distinguish it from the defense of insanity

Answer 19

The defense of automatism argues that there is no voluntary act, and instead that the person was an automaton at the time of the event. It can be argued in cases of somnambulism or or a dissociated state.
If no voluntary act exists, then the prosecution could never prove the offense, because an element of the offense would be missing.

In contrast, when the same state is argued under insanity, it is argued as an affirmative offense. An affirmative offense argues that the offense did occur and the elements are satisfied, but that the defendant should be excused because he either could not control himself or did not know the nature and quality of his act.

From a defense perspective, the automatism defense as the lack of a voluntary act is preferable.

Question 20

Articulate why we don’t generally punish for omissions.

Answer 20

We generally don’t punish for omissions primarily because it is very difficult to discern intentions associated with a failure to act. There may be many reasons why someone fails to act aside from a desire to effectuate the result from that failure.

In addition, we don’t want to encourage people to act in situations where acting might actually cause harm, like when someone without skills might try to administer medical assistance and cause further injury.

Question 21

Identify and give an example in each of the five exceptions when we do punish omissions.

Answer 21

We punish omissions only when there is a duty to act. There are 5 areas where we do punish omissions because there is a duty:

1) When there is a statutory obligation, like an obligation to have insurance or file our taxes
2) Status relationships, such as a spouse to a spouse, or a parent to a child
3) Contractual obligations, where the duty to act is part of the contract
4) After the omitter has voluntarily assumed the care of another, and places that person in a worse position, such as when you are nursing a sick friend or bringing them home from a party and you leave them drunk or sick outside in the cold
5) After the omitter has created the risk, including those cases where the risk was non-negligent. For instance when I start a fire by accident, I still have an obligation to act to try and extinguish the fire or save people and property from the fire, even though I started the fire by accident.

Question 22

Articulate how policy affects the decisions at this level, considering Decina and Barber.

Answer 22

Policy affects our determinations of the lines between actions and omissions and when people should be held culpable for omissions.

+ In Decina, we timeframe back to time that includes a voluntary act to determine whether Decina should be held culpable.
+ In Barber, we hold that the physicians removing life support were not acting but omitting, because we want to protect physicians and their work, even though it appears that “pulling the plug” is clearly a voluntary act.

Question 23

Identify and define the two types of possession.

Answer 23

actual and constructive. Actual possession is when one knowingly is in possession or has the item on their person. Constructive possession is when one is knowingly in a position to control the object and guide its destiny.

Question 24

Give an example of each type of possession.

Answer 24

For instance, actual possession would be possessing the illicit drugs in your pocket or in your backpack on your person. Constructive possession would be having the illicit drugs in your apartment, or your footlocker, or under your pillow.

Question 25

What is Lex talionis and which theory of punishment is it associated?

Answer 25

“eye for an eye” –> retributivist

Question 26

Does assaultive retribution suggest that the theory is nothing more than an effort to satisfy a desire for vengeance? Or is this a consequential theory of punishment?

Answer 26

Moore: “Morally culpable persons should be punished, irrespective of what other persons feel/desire/prefer”

Question 27

Is there something wrong with punishing persons for their thoughts? What will happen when we have the technology to read each other’s thoughts?

Answer 27

At this point, it’s not practical. It’s hard enough to know what’s going on in our own minds, let alone with others. Even if we had Minority Report “precog” ability, you can’t punish someone for thoughts alone. That violates the principle of a free society.

Question 28

Which of the theories of punishment aligns with actus reus requirement (refusal to punish for thoughts alone)?

Answer 28

Retributivist, because the theory punishes those who commit a crime out of their own free will. Voluntary conduct serves as a minimum precondition for the infliction of punishment.

Question 29

What about criminalizing and punishing someone for being left-handed or possessing blue eyes? Is that allowed?

Answer 29

The US Constitution forbids punishment on status alone. Criminal law only punishes conduct, voluntarily.

Question 30

How does the MPC define “voluntary act”

Answer 30

MPC §1.13: “voluntary” has the meaning specified in Section 2.01
MPC §2.01:(1) “A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act act of which he is physically capable” (2) Not voluntary acts within the section: (a) reflex or convulsion; (b) bodily movement during unconsciousness or sleep

Question 31

Why would a defendant prefer to seek acquittal based on a no-voluntary act “defense” rather than on an insanity defense?

Answer 31

More of a stigma to insanity, suggests that a person would need to be institutionalized if they were so out-of-their-mind as to murder someone. Non-voluntary act means that you were triggered and it wasn’t your fault. You would be less likely to be stripped of your liberty.

Question 32

Explain the difference between specific intent crimes and strict liability crimes

Answer 32

Crimes can be divided into a variety of categories, based on the mental state required of the offender. More specifically, crimes can be divided into three categories:

General intent: these crimes require that a defendant intended to perform a particular act, as opposed to intending a certain result. A DUI, for example, is a general intent crime because a driver doesn’t have to intend to drive drunk, they just have to be under the influence while driving – but they had the intent to drink alcohol before doing so.

Specific intent: these crimes require that a defendant had the specific intent of committing the particular criminal acts that constitute a crime. A prime example of a specific intent crime is first-degree murder.

Strict liability: these crimes don’t require any intent, or often knowledge, on the part of the offender.

The category that a crime falls into is important because it affects the elements that must be established to convict a person of committing a particular crime. In other words, the prosecutor must prove that the defendant fulfilled all elements of the crime, including the required mental state.