Meltzer – Criminal Law Outline (Fall 2011)
I. WHAT IS PUNISHMENT?
a. Hart (“Aims of Criminal Law”)
i. Penal codes should reflect several social purposes (e.g., preventing crimes but also avoiding conviction of innocents and enhancing sense of security).
ii. Aims:
1. Deterrence of offenses
2. Rehabilitation of offenders
3. Disablement of offenders
4. Sharpening of community’s sense of right and wrong
5. Satisfaction of community’s sense of just retribution
6. Socialized vengeance (as alternative to mob violence)
iii. Should not focus on one end to exclusion of others; e.g. deterrence still has to be counterbalanced w/rehabilitation, just retribution, disablement of offenders, etc.
iv. Criminal Law operates as a series of commands telling people what they must or must not do.
1. Mostly “must-not” commands, e.g. “do not murder, rape, or rob.”
2. But also some “musts” or affirmative requirements, e.g. “file your income tax return.”
v. Commands speak to members of community on community’s behalf. Commands are subject to sanctions for disobedience which community is prepared to enforce.
vi. Key: What distinguishes criminal from civil sanctions (and the only thing) is the judgment of community condemnation which accompanies and justifies its imposition. A crime, then, is not simply anything which legislature chooses to call a crime. It is conduct which, if shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.
1. Punishment = community condemnation + added consequences (e.g. imprisonment).
b. Philosophies
i. Utilitarianism: punishment is an evil b/c it inflicts harm (decreases utility); we should punish criminals if some “good” (e.g. primary reduction of future crimes) will result from punishment
ii. Specific deterrence: particular D will not commit future crimes.
iii. General deterrence: other persons, contemplating committing crimes and learning of the threatened punishment, will decide not to commit crimes.
1. For both kinds of deterrence, pain threatened must be greater than the pleasure that D thinks he will attain by committing the crime. (Bentham)
a. But no evidence that criminals actually engage in this kind of “felicific calculus” (Bentham quote), however.
b. Many crimes may not be crimes of calculation. (Though white-collar crimes more likely to be b/c long periods of planning and long periods of implementation.)
2. Certainty of capture likely deters more than severity of punishment.
iv. Incapacitation: offenders must be prevented from reoffending (also utilitarian).
1. Counter: impossible to accurately predict recidivists. Ignores replacement phenomenon in crime.
v. Rehabilitation (utilitarian): dominant between 1800 and 1975. Idea is that offenders can be changed into nonoffenders by proper treatment. Required indeterminate sentence for each criminal b/c “symptoms” and fault would vary w/each. Presentence reports used by judges to inform them of social background, etc. of D. Was adopted in virtually every state.
1. Counter: no evidence that “treatment” during punishment worked.
vi. Retribution (Kant, etc.): persons who choose to do wrong acts deserve punishment and it should be imposed on them even if it serves no utilitarian purpose. Punishment must be imposed b/c offender deserves to be treated as moral agent who earned punishment by his crime. Retrospective as opposed to utilitarianism.
1. Counter: often explained by referring to need to reaffirm society’s mores, which smacks of utilitarianism. Also difficult to explain how punishing criminal “makes up” for injury D inflicted on society; e.g. “unfair advantage” argument.
a. Proportionality also has weaknesses: e.g., what is “proportionate” for rape or torture? What is proportionate imprisonment for e.g. assault?
i. Significant b/c S.Ct. has stated Eight Am. includes proportionality requirement (see Ewing v. California, 2003).
II. THE ELEMENTS OF JUST PUNISHMENT
a. The Act Requirement
i. Model Penal Code
1. MPC 1.13(2): “act” or “action” means a bodily movement whether voluntary or involuntary.
2. MPC 1.13(5): “conduct” = action or omission and its accompanying state of mind, or, where relevant, a series of acts or omissions.
3. MPC 2.01(1): person is not guilty of offense unless his liability is based on conduct which includes a voluntary act / omission to perform an act of which he is physically capable.
a. Not all conduct must be voluntary: just needs to include single voluntary act.
4. MPC 2.01(2): following are not voluntary acts:
a. (a) reflex or convulsion;
b. (b) bodily movement during unconsciousness or sleep;
c. (c) conduct during hypnosis of resulting from hypnotic suggestion;
d. (d) bodily movement that is otherwise not a product of the effort or determination of the actor, either conscious or habitual.
ii. General
1. When analyzing statute, break it down in elements of the crime and determine the culpability requirements for each element.
2. Require an act b/c (1) evidentiary issue (otherwise just one person’s word against another’s); (2) allow person to change mind before following through; (3) making words criminal would open “web of criminality.”
3. Requires act to be voluntary b/c unfair to attach criminal stigma otherwise; goals of criminal punishment do not result from convicting for involuntary actions.
iii. Voluntariness
1. Voluntary appearance in public cannot be established when D involuntarily and forcibly carried to that place by arresting officer; statute presupposes voluntary appearance. Martin v. State, p. 182.
a. Different result under MPC 2.01(1), since conduct included voluntary acts (drinking and loud / profane language)?
2. Distinguish conduct from status: see Jones v. City of LA (9th Cir. overturned city ordinance making it illegal for persons to sit, sleep, etc. on city street b/c “state may not criminalize ‘being’; that is, the state may not punish a person for who he is, independent of anything he has done.”
iv. Unconscious actions
1. See People v. Newton (CA App. 1970, p. 184) (reversing criminal homicide conviction b/c of failure to instruct jury that involuntary unconsciousness is a complete defense to criminal homicide).
2. But consider People v. Decina (p. 189) (epileptic driver who lost consciousness and killed pedestrian was culpably negligent under statute b/c knew he was subject to epileptic attacks but still drove the car). Culpable negligence: Awareness of a condition which he knows may produce such consequences, as here, and his disregard of the consequences renders him liable for culpable negligence.
a. Suggests that prosecution can defeat voluntary act requirement by expanding time frame. But how far back can we go? (E.g., Newton voluntarily got in his car and drove on the day when he later shot officer.)
b. Michael Moore: no time-framing issues if court can find (1) voluntary act by D, (2) accompanied at that time by whatever culpable mens rea is required, (3) which act in fact and proximately causes some legally prohibited state of affairs. Were earlier acts by Martin (e.g. voluntary drinking) the proximate cause of his being drunk in public or was police offers’ placing him in public place an intervening cause?
b. The Requirement of Culpability
i. Mental States
1. Model Penal Code
a. To determine the mens rea required for conviction, (1) determine the material elements of an offense (see 1.13(9) and 1.13(10)), then determine which type of means rea (2.02) is required w/respect to each material element.
b. MPC 2.02(1): except as provided in 2.05, person is not guilty of offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, w/respect to each material element of the offense.
i. MPC 2.02(4): “Material elements of offenses are those characteristics of the actor’s behavior that, when combined with the appropriate level of culpability, will constitute the offense.”
ii. MPC 1.13(10): Material Elements do NOT relate exclusively to:
1. SOL...jurisdiction...venue...or to any other matter unconnected with:
2. Harm or evil, incident to conduct, sought to be prevented by law defining the offense, or
3. Existence of justification or excuse for such conduct.
c. MPC 2.02(5): when recklessness suffices, element also established if person acts purposely or knowingly.
d. MPC 2.02(3): when level of culpability is not prescribed by law, it is established by acting purposely, knowingly, or recklessly w/respect thereto.
i. Default culpability standard: Recklessness, unless the statute specifies otherwise!
2. Commentary on MPC §2.02
a. Purpose: conscious objective to perform an action of that nature or to cause such a result; actor would be disappointed if result or circumstances did not come about.
b. Knowledge: practically certain that conduct will cause such a result or that such external circumstances exist; different from purpose because actor would not be disappointed if result or circumstances did not come about (rarely need to differentiate).
c. Recklessness: consciously disregards a substantial and unjustifiable risk that material element exists or will result from conduct (subjective standard) – default culpability level.
d. Negligence: inadvertent creation of a substantial and unjustifiable risk that person should have been aware of (objective standard) – liable if failure to perceive it is a gross deviation from care that would be exercised by a reasonable person in situation
e. Required culpability level must be proved with respect to each “material element” of offense. Provides legislature with a vocabulary to specific culpability required for given offense.
3. Mens rea
a. Broadly, mens rea refers to blameworthiness entailed in choosing to commit a criminal wrong.
i. Defenses: involuntary act, duress, legal insanity, accident, mistake, etc.
b. Formal mens rea = the kind of awareness or intention that must accompany the prohibited act under the terms of the statute defining the offense.
c. See Regina v. Cunningham (UK 1957, p. 214) (gas meter case; overturning conviction b/c judge instructed jury that acting maliciously [req by statute] = acting “wickedly”; maliciously means “intending injury or acting while foreseeing that injury might result”; to convict, prosecution will have to ask jury to make inference that given situation, D was actually aware of risk).
i. Lesser Crime Theory: imputes intent to commit the greater offense on the basis of intent to commit the lesser offense (impute culpability from the lesser crime to the more serious crime). If defendant makes a showing that he mistakenly believed facts that would have made his crime a lesser crime, the MPC says that the grade and offense of the crime shall be reduced to those of the crime which the defendant would have committed if the facts been as he supposed.
d. See Regina v. Faulkner (UK 1877) (overturning and remanding conviction of sailor who went in ship’s hold to steal rum, lit a match, and ship caught on fire b/c he did not “maliciously” set fire to the ship: jury needs to find that act is intentional and willful, or that he knew this would be likely and acted anyway).
e. See U.S. v. Jewell (9th Cir. 1976, p. 229) (affirming conviction for knowingly transporting marijuana where D deliberately avoided positive knowledge to avoid responsibility; “knowingly” can be awareness of high probability of existence of fact in question).
i. See also MPC 2.0.2(7): “when knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.”
4. Intent
a. General intent: intent in the normal sense; i.e. D knew the nature of the acts performed w/out proof that he desired any particular further consequence.
b. Specific intent: crimes defined in terms of doing an act with some further intention (e.g., burglary, assault w/intent to kill) or crimes that require D’s actual knowledge of particular fact or circumstance (e.g. bigamy).
ii. Strict Liability
1. A strict liability crime is one which does not require culpability for each individual material element of the offense (e.g., not even negligence). In many cases, commission of the act is proof of culpability.
2. Model Penal Code
a. MPC 2.02(1): at least negligence should be required for every material element of the offense.
i. MPC 2.05(1): unless (1) legislature specifically articulates it or such purpose “plainly appears,” or (2) violation carries only civil fines.
b. Under MPC, strict liability offense must constitute a “violation” (§2.05(1)) and result in no sentence other than a fine, or a fine and forfeiture or other authorized civil penalty (§1.04(5))
3. Interpreting when a statute is silent
a. Intent is required: traditional and favored interpretation, particularly applying to offenses regarded as common law crimes (like theft or murder). Mens rea was such an inherent part of the definition of crime itself that we will not lightly assume that Congress meant to dispense with it.
i. For retributive reasons, we only want to punish bad acts and wrongful choices, and if there was no intent, this purpose is not served.
ii. For utilitarian reasons:
1. We want to incapacitate only dangerous people, and the unintentional criminal probably isn’t dangerous in that sense.
2. We want to deter certain conduct, and you can’t deter people from doing things they never intended to do.
3. There’s a calculating reason behind this, which is the idea that people who are actually thinking about stealing a car will choose not to because of the risk.
4. There’s a normative reason also, which is the idea that by stigmatizing bad conduct, we embed the idea that certain conduct is wrong in people over time.
5. We want to rehabilitate offenders, and the unintentional criminal doesn’t need to be rehabilitated.
iii. If the statute has a harsh penalty, we usually don’t want to subject people to it if they acted unintentionally.
b. Intent is Not Required
i. The legislature passes certain pieces of regulatory legislation with the intent of benefiting the social welfare at large (“public welfare offenses”), and therefore wants to make prosecution of such offenses easier.
1. Such offenses generally carry less of a stigma and have smaller penalties, like fines, which we don’t feel bad about imposing on unintentional conduct.
2. These kinds of crimes often involve the creation of risks that haven’t yet materialized into harm to particular individual (such as in Balint, where a man was convicted of selling opium without knowing what it was that he was selling).
ii. Potential backfire effect – if we impose strict liability in an effort to encourage better precautionary measures, we might prevent people from going into certain businesses altogether.
4. See Morissette v. U.S. (S.Ct. 1952, p. 250) (Jackson majority; reversing strict liability conviction for “knowingly converting” U.S. govt property [D thought shell casings were abandoned]; in absence of express Congressional directive, strict liability should not extend to common law crimes [here larceny] because larceny requires intent).
a. Compare with U.S. v. Dotterweich (S.Ct. 1943, p. 249) (affirming strict liability conviction after corporation mislabeled drugs b/c legislation seeks to protect health of people who are beyond self-protection and puts burden of acting on person standing in “responsible relation to a public danger”).