Nature of Law, Crime, and Punishment

[Nature of Law, Crime, and Punishment]

·  Importance of jurisprudential and policy issues

·  Note: Only actors with discretion may use policy concerns in their decisions

Goals of Criminal Law

Deterrence

1.  General (society)

2.  Specific (individual)

Rehabilitation

Incapacitation/incarceration: Take them out of society where they can’t do harm

Retribution justice/desert: The need to give punishment that they merit

Potential Conflicts: Potential conflicts between these various considerations

·  Incapacitation and just punishment may conflict

·  Rehabilitation may conflict with the notion of retribution

o  What incentives to criminals have to be rehabilitated if they are not released

·  Retribution interferes with deterrence because deterrence might be achieved through grossly harsh punishments

Goals of Criminal Law and the Death Penalty

Considerations

·  Does the person have a disability?

·  Is the person a juvenile?

·  Are there aggravating circumstances?

o  Killing for financial gain, killing a police officer/prison guard, killing more than one person, killing in order to escape from custody or arrest, history of violence

·  Are there mitigating circumstances?

o  Doubt about guilt, turbulent family history, severe emotional disturbances, good behavior while awaiting trial, commission of crime under duress or the influence of drugs/alcohol

Arguments FOR capital punishment:

·  Deterrence

·  Retribution

·  Incapacitation

Arguments AGAINST capital punishment:

·  Discrimination in application (race, class)

o  McClesky v. Kemp – statistics show that discrimination based on race of the victim (Ds who kill white victim more likely to get death penalty)

§  Majority opinion: Requires individualized proof of discrimination

·  Costs more than life in prison (appeals, etc.)

[Elements for Criminal Liability]

Actus Reas

A voluntary act

·  CANNOT be an involuntary reflex

o  Examples: Sleepwalking

o  People v. Newton- plane inadvertently landed in NY; D was involuntarily in NY with a gun à cannot be charged with violating NY law

·  Mere thoughts do not count

·  Words can be actions – “shoot em”

o  Some crimes are solely committed by the act of speech

·  Act under duress is still a voluntary act

Omission or failure to act can have criminal liability if

·  Statute

o  Example: good Samaritan laws; tax returns

·  Contract

o  Example: lifeguard, nurse

·  Relationship between the parties

o  Child, spouse

§  Jones v. US – Son in poor health and severe neglect dies à charged caretaker with involuntary manslaughter

·  Voluntary assumption of risk/ beginning to rescue

o  Particularly if it prevents others from rescuing

o  Example: Say “I am going to rescue you” see its somebody you don’t like and then swim away

·  Where your conduct creates peril

o  Example: pushing someone into a pool knowing that they cannot swim

Intoxication

·  Involuntary – no actus reas

·  Voluntary – actus reas present; may not have mens rea defense

o  Trier of fact usually not in the favor of this argument

Mens Rea

·  Culpable state of mind; desire or intent to commit an unlawful act

·  Factual information is key: What did D know and understand?

Statutory language

·  Intentionally or with intent to

·  Knowingly or with knowledge that

·  Frequently or with the intent to defraud

·  Purposefully or for the purpose of

·  Willfully, maliciously, or comply

·  Without intent [use objective standard]

o  Reckless – gross or outsized negligent

o  Negligently

Degree of fault

·  Subjective fault

o  Actual bad mind or intent to cause harm

o  Does not need to be reasonable

·  Objective Fault

o  Recklessly or negligently caused harm

o  Court can say a “reasonably prudent person: would NOT have done that act

·  Strict liability

o  Liability without regard to the state of mind; one CANNOT offer a mens rea defense

§  Example: statutory rape

·  Knowledge of the age is not required, nor is a reasonable belief that the victim was over the age a consent. Even a reasonable mistake is not a defense

o  Malum prohibitum crimes (wrong because they are prohibited) and “public welfare” crimes

o  Example: violating traffic safety regulations

o  The only defense permitted is an actus reas defense

o  How to know when it is a strict liability crime:

o  The crime is administrative, regulatory, or moral

o  No adverbs in the statute

Intent Requirement

Larceny intent to permanently deprive rightful owner of property

·  Be aware that the property belonged to another, intent to deprive forever

·  Even an unreasonable mistake of fact could be a defense in some jurisdictions

Negligent homicide; negligently causes another’s death

·  The extent to which the individual deviated from a reasonable standard of care

Specific Intent and General Intent Crimes

Specific Intent Crime

·  Intent to bring about a specific result/harm

o  Example: attempt, first degree murder, embezzlement, robbery burglary

o  Example: Larceny

§  Intent to permanently deprive rightful owner of property (must know that she is not entitled to it)

o  Example: burglary

§  Actor must have broke and entered with the intention of committing a felony therein

·  Defense can be formed around the notion that the actor didn’t intend the particular result

General Intent Crime (catch all category)

·  Intent to commit an action but not necessarily to bring about result

·  Example: Involuntary manslaughter

Transferred Intent

·  Meant to kill a man but accidentally kill the woman next to her

o  Two crimes – murder for the dead woman; attempted murder for the man

·  NEVER MERGE ANY CRIMES THAT HAVE DIFFERENT VICTIMS

Defenses to Mens Rea and Actus Reas Elements

Intoxication

·  Voluntary – there IS actus reas

o  Self-induced (includes addicts/alcoholics)

o  Defenses only to specific intent crimes

§  MAY negate the mens rea required by the crime

·  Courts VERY reluctant to do this

·  Involuntary—NO actus reas

o  Forced to drink, or something dropped into the drink

o  Defenses to ALL crimes (including strict liability)

Mistake of Fact

·  Can negate liability EXCEPT in strict liability crimes

·  Is a defense against liability if it negates the mens rea required to commit the crime

o  Specific Intent Crime – Even an unreasonable mistake of fact can negate intent

§  Example: Larceny requires a knowledge that the property belongs to another SO if he thinks it is his and takes it that is an honest and unreasonable AND can be a used as a defense

o  General Intent Crime – Only a reasonable mistake of fact can negate the required intent

§  Example: Rape; unreasonable mistake of fact would not serve as a defense BUT a reasonable mistake of fact would serve as a defense

Gordon v. State: Boy did not know that he was not able to vote because he didn’t know his real age

Mistake of Law

·  No excuse; CANNOT be a mens rea defense

·  Rationale: Inherent difficulty of proving whether or not the defendant knew of the law; makes all law abiding citizens responsible for all laws;

·  Exception:

o  Ignorance of the law is a defense IF it negates the mens rea required to commit a crime

§  BUT most crimes do not require proof that the defendant was aware of the law SO it RARELY negates mens rea

o  IRS allows good faith mistake of the law to be a defense

o  People v. Wendt: D charged with willfully failing to file a return of income tax à willfully here means that D did not do something although he was aware it was a legal requirement

o  When the law is not published (no significance today)

o  When the mistake arises from a reasonable reliance on:

o  A statute that is later determined to be invalid

o  A court decision

o  A public official who is in a position to interpret the statute

§  Example: attorney

[Homicide]

·  Intent to kill OR intent to do serious bodily harm

·  Difference between 1st degree murder and voluntary manslaughter

o  Provocation

·  Difference between depraved heart murder and involuntary manslaughter

o  Depraved heart murder: Requires a plan and strong likelihood of death

o  Involuntary manslaughter: A high degree of likelihood of substantial harm

1st Degree Murder

Elements

·  Premeditated unlawful killing of a human being by another human with malice aforethought

·  Malice aforethought = defendant intended to kill

·  Specific Intent Crime (because of malice requirement)

·  Premeditated and deliberate

Defenses

·  Make the case that the defendant did not have premeditated thoughts

Important Considerations

·  What did D do prior to the killing (example: planning)

·  Prior relationship/conduct with the victim from which the jury can determine “motive”

·  Nature of killing from which the jury could infer there was “preconceived notion”

Felony Murder

·  Generally a subset of 1st Degree Murder

·  Allowed when there are predicate felonies

o  Arson, burglary, kidnapping, rape, or robbery

·  Applicable when murder is the inadvertent result of a felony (or attempted felony?)

·  In commission requirement

o  Many jurisdictions define duration of the felony to continue until the felon reaches “a place of temporary safety”

·  Rationale: Intended to deter negligent and accidental killings during commission of felonies

·  People v. Robertson – D shot gun in the direction of people trying to steal his car à found guilty of felony murder because it was a felony to recklessly shoot your gun up into the air

Where one felon is killed by a non-felon (victim or police), courts disagree on whether the other felon is liable for felony-murder

·  Majority Approach: Agency Doctrine

o  Felony murder does NOT apply when “death directly caused by an innocent person”

o  Only way felony murder applies is if the agent or accomplice in the underlying felony commits the murder

o  Defendant is NOT liable for the death of a co-felon as the result of resistance on police

o  Also – police killing felon is lawful – robber cannot be charged with a lawful act

·  Minority Approach: Proximate-Cause Theory

o  Felony murder CAN be applied to death caused by non-felon

o  Causation + felonious state of mind is all that is required

o  Rationale: By committing the underlying felony the defendant has proximately caused the homicidal act

o  State v. Sophophone: Dissent argued that “D had set in motion dangerous events” EVEN THOUGH D was in the back of police car at time of death

Defenses to Felony Murder

·  Defense to underlying felony = defense to felony murder

·  The felony they are committing must be something OTHER THAN killing

·  The deaths must be foreseeable (causation)

·  Once the defendant has reached a point of temporary safety, no longer in the window for felony murder

o  Example: Spends the night at mom’s house

2nd Degree Murder

Elements

·  Reckless activity, subjective appreciation of the risk

·  No premeditation OR

·  Premeditation intending to cause seriously bodily injury to the person

·  If danger is completely obvious and a reasonably prudent person would know the risk and jury can make the inference that the defendant understood/was aware of the risk/danger

Depraved Heart Murder

Elements

·  Reckless activity with appreciation of the risk (subjective standard)

·  Requires subjective appreciation of the risk

o  BUT fact finder may infer appreciation of the risk

o  People v. Knoller: Dog owners warned the dogs are dangerous; dogs attack and kill a woman à D found to have “conscious disregard for life”

o  Commonwealth v. Malone: Russian roulette; D thought bullet was in 5th chamber but it went off at 3rd shot; jury found a callous disregard for life

·  You CANNOT have attempted depraved heart murder

Prosecution’s Role

·  Make the case that the danger is patently obvious

·  Argue elements of awareness

o  Difficult to prove subjective awareness

Voluntary Manslaughter

Elements

·  Deliberate unlawful killing that is the result of provocation (provoking element)

·  Partially mitigated by provocation

o  Rationale: Someone should be convicted of a lesser offense if they are provoked

·  Does NOT require a subjective appreciation of the risk

·  NOT an appropriate charge if there has been a “cooling off” period

o  Ask: Would a reasonable person have cooled off?

o  Children and mentally retarded have a different standard (?)

·  Killing from passion (ALWAYS must be passion)

o  Modern Approach:

§  Look at the context

§  Test: Would a reasonable person be provoked to commit homicide under those circumstances

o  Traditional Approach:

§  Provocative Acts

§  Battery

§  Mutual combat

§  Assault

§  Illegal arrest – modern trend is to discount this

§  Adultery

§  Injuries to close relatives

o  State v. Thronton: Husband shoots man having sex with his wife à adultery is often an provoking event in voluntary manslaughter

Involuntary Manslaughter

§  Hard to draw a line between involuntary manslaughter and depraved heart murder

o  Commonwealth v. Welansky: Emergency exists were locked, nightclub full over capacity; fire kills people à nightclub owner found guilty of involuntary manslaughter b/c he should have known (objective standard)

o  Commonwealth v. Feinberg: Knows the customers are drinking poisonous product à charged with involuntary manslaughter

Elements

§  Unintentional killing involving recklessness or gross negligence

o  Example: Drive 100 miles per hour and kill someone

§  Sometimes involving unlawful acts NOT in felony murder statute

§  Various terms used to describe the mens rea requirement

o  Wantonness, willfulness, recklessness, indifference, disregard, culpable negligence, criminal negligence, gross negligence

§  Does NOT require subjective awareness of the risk

[Rape]

§  Common law: Unlawful sexual intercourse with a woman against her will by force or threat of immediate force

Statutory Changes

§  Allowing wives to charge for rape

o  Though less serious penalties for husbands usually

o  People v. M.D.: Marital rape with egg