Pages 1-16 Flashcards
4 types of Criminal punishment
i) Death
ii) Imprisonment
iii) Fine
iv) Creative alternative punishments
General deterrence
basis for the justification of criminal punishment, general deterrence is the belief that by punishing people criminally for a particular activity, other people will be deterred from engaging in that activity in the future
Specific deterrence
specific deterrence is the belief that by punishing a particular person criminally, he or she will be deterred from committing that crime in the future.
What are the types of specific deterrence?
(1) Retribution: Punishment imposed on the basis of what is justly deserved; it is imposed to restore the equilibrium of the common good that was disturbed by the offender’s unjust exercise of liberty; the belief that we should punish a convicted criminal severely in order to give him just what he deserves for his conduct and/or simply as a matter of righteous vengeance.
(2) Rehabilitation: The process of seeking to improve a criminal’s character and outlook so that he can function in society without committing other crimes; it concerns expiation, restoration, and reformation; the belief that a person convicted of a crime can be “cured” while incarcerated.
(3) Incapacitation: Punishment that physically prevents a criminal from acting upon his destructive tendencies and committing other crimes; the simple recognition that putting someone in prison will keep that person from doing any further harm.
(4) Denunciation: Those who disobey criminal laws should be held up to the rest of society and denounced as violators of the rules that define what society represents; those who disobey criminal laws should be held up to the rest of society and denounced as violators of the rules that define what the society represents.
UTILITARIAN
Essentially a cost/benefit calculation; theory of punishment justifies inflicting punishment because a greater good will be served in the long run
Utilitarian Rationales
(a) People react to actual and anticipated pleasure and pain
(b) Punishment, because it inflicts pain, is an evil
(c) Therefore, punishment is justified only if it avoids or excludes some greater evil
Retributive
focuses on the moral culpability of the actor. Punishment is inflicted because it is deserved – focuses on the value of the person and the person’s place in society
Retributive rationales
(a) systematic moral response to wrongdoing – if the criminal deserves punishment, it should be inflicted
(b) Guilt is a necessary and a sufficient reason to punish
(c) requires guilt as a prerequisite for punishment (punishment of the innocent cannot be justified on the basis of a “greater good”)
(d) requires that punishment be proportional
What is disproportionate punishment
disproportionate punishment can constitute cruel and unusual punishment in violation of the Eighth Amendment
Positive law
A system of law promulgated and implemented within a particular political community by political superiors
Common law
body of law derived from judicial decisions, rather than from statutes or constitutions
Natural law
first and essential precepts which govern moral life; belongs properly to human nature because reason decrees it so; placed in us by God – written on the heart
6 principles
i) Principle of legality: A person may not be prosecuted under a criminal law that has not been previously published; courts should not create crimes
ii) Doctrine of void-for- vagueness: Forbids wholesale legislative delegation of lawmaking authority to the courts
(1) A criminal statute is void-for- vagueness if it fails to define criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited (i.e., provides fair notice), or it fails to establish guidelines to prevent arbitrary and discriminatory enforcement
iii) Doctrine of overbreadth: If a statute is so broadly written that it deters free expression, then it can be struck down on its face because of its chilling effect, even if it also prohibits acts that may legitimately be forbidden
iv) Rule of constructive notice: Notice is presumed by law to have been acquired by a person and thus imputed to that person
v) Doctrine of strict construction: Judges should interpret a criminal statute according to its literal terms, without looking to other sources to ascertain the meaning
vi) Rule of lenity: Directs that judicial resolution of residual uncertainty or ambiguity in the meaning of a criminal statute be resolved in favor of the defendant (tie goes to ∆)
Actus Reus
1) The wrongful deed (the act or omission) that comprises the physical components of a crime
i) It generally must be coupled with mens rea to establish criminal liability
ii) Harmful conduct, a harmful result, or both
Attendant circumstance
A condition that must be present, in conjunction with the prohibited conduct or result, in order to constitute the crime
Social harm
harm that justifies punishment imposed under the criminal law
Result crime
Conduct that is proscribed because of the socially harmful outcome
Conduct crime
Conduct that is proscribed because of the socially harmful behavior
Voluntary Act under Common Law and Under MPC
Common law: It is something that is done or performed; a deed
MPC: “[A] bodily movement whether voluntary or involuntary”
Why is an act required – versus just punishing thoughts?
i) Thoughts difficult to ascertain
ii) Thoughts can’t be socially stigmatizing
iii) Sanctions can deter acts – not thoughts
iv) To punish thoughts – intrusion on privacy and personal autonomy
VOLUNTARY ACT – Common Law - conditions
i) It is any act that is done by design or intention; implies:
(1) willed or volitional behavior by the actor;
(2) is more than just self-generated physical movement;
(3) involves the use of the actor’s mind, and not just the actor’s brain (i.e. elec impulses)
VOLUNTARY ACT – MPC: voluntary-act rule - conditions
i) Similar to C/L – no express definition given
(1) Excludes punishment for mere thoughts and bars liability for purely involuntary conduct
(2) a person is not guilty of an offense unless his conduct “includes a voluntary act or the omission to perform an act of which he is physically capable”
(3) consistent with retributive justification – punishment based on free will, no blame for absence of choice
INVOLUNTARY ACT – is still an act!!!!
i) Lack of culpability for the movement
ii) Lack of volition for the movement (i.e. ∆ did not volitionally appear in public)
iii) Suggests a lack of consciousness of the act (movement)
(i.e. lips moving while snoring – the actor’s brain is causing the movement, but no engaging of the mind to volitionally choice to move them due to being asleep)
iv) “Involuntary” is sometimes used in a broad sense, to mean that the actor is not blameworthy
Ex. a person who commits an act under duress is still willed or volitional in the narrow sense but may not be blameworthy
v) Automatism – lack of voluntary act (think drunk Vietnam vet who kills son)
vi) Time-framing – can be used to show liability even for involuntary acts
Ex. epileptic who knows of disorder and still drives a car; “act” is decision to drive
Omissions / “Negative” Act
1) Generally crim law does not prosecute omissions b/c:
i) Ambiguous – hard to determine motive
ii) Avoids line drawing problems
iii) Intervention can often make matters worse
iv) Failing to act merely withholds a benefit, it does not affirmatively harm
There is criminal liability for failing to act when
i) a statutory duty to another – tort duty
ii) a status relationship to another – e.g. family
iii) a contractual duty to care for another
iv) a voluntarily assumption of care of another that so secluded the helpless person as to prevent others from rendering aid
v) creating a risk of harm to another
Omission crimes – in the US, typically recognize:
i) ‘Misprision’ of felony: knowledge of a crime by another; active concealment from law
ii) Aiding and abetting: knowledge; affirmative assistance, encouragement or advice
Social Harm (again). Two types of offenses
i) Result crimes: law punishes an unwanted outcome (e.g., death in a criminal homicide)
ii) Conduct crimes: law punishes specific dangerous behavior (e.g., DUI)
Remember, both the conduct and the result may be punished by a single crime (e.g., homicide by using an automatic weapon)
Social harm and RESULT CRIMES
i) Punishes the harm caused by the act or omission
ii) Immediate victim is harmed
iii) Society is also harmed by result crimes (e.g., loss of a sense of security)
iv) Recall that the criminal law is not intended simply to redress private harm
Social harm and CONDUCT CRIMES
i) In a narrow sense, conduct crimes may not cause social harm
E.g., DUI where no one is killed or injured (arguably there’s no immediate victim or tangible harm)
ii) Conduct crimes are punished to deter and avoid the harmful result crimes that might otherwise occur
iii) In a broader sense, they always cause social harm
E.g., DUI where no one is killed or injured (arguably the tangible harm includes increased insurance rates and discretionary spending on traffic enforcement)
Common good (quality of life) also harmed
Mens Rea
The state of mind that the prosecution must prove a defendant had when doing the wrongful deed in order to secure a conviction
i) Broad (culpable) sense: means “guilty mind” or a “morally culpable state of mind,” without specifying a specific type of mental culpability. Thus, an actor is guilty if he performs the actus reus of an offense with any morally blameworthy state of mind.
ii) Narrow (elemental) sense: Mens rea is the specific mental state required by the definition of the offense
