Punishment and Proportionality

Unit 1

Introduction
Punishment and Proportionality
Process & Prohibitions
Actus Reus
Mens Rea
Intent
Willful Blindness
Strict Liability
Mistake of Law
Mistake of Fact
Causation

Unit 2

Homicide
Pre-Meditation
Voluntary Manslaughter
Unjustified Risk-Taking
Felony Murder
Rape and Sexual Assault
Social Context
Law Reform
Forcible Rape
Consent and Withdrawal
Rape by Fraud
Statutory Rape
Theft

Unit 3

Defenses
Self-Defense
Necessity
Duress
Insanity
Diminished Capacity
Intoxication
Infancy
Background / Cultural Defenses

Unit 4

Inchoate and Group Crimes
Attempt
Assault
Solicitation
Conspiracy
Accomplice Liability

Unit 1

Introduction
Punishment and Proportionality
Greenawalt
Why and whether social institution of punishment is warranted
Necessary conditions for criminal liability and punishment in particular cases
Form and severity of punishment that is appropriate for particular offenses and offenders
Performed by and directed at agents who are responsible in some sense
Involves “designedly” harmful or unpleasant consequences
Usually preceded by condemnation and “people” blame person for committing a wrong
Imposed by someone w/ authority to punish
As a result of one breaking established rule of behavior
Imposed on the “actual or supposed”
If later proven innocent, public exoneration as a form of restitution
Retributivism
Looks at the past and gives you the punishment you deserve
People who commit crimes deserve to be punished
An evening of the scales of justice
Grounded on notion of moral desert – Moral Blameworthiness
Utilitarianism – Jeremy Bentham
What benefits will we derive down the road for punishing this person today
Forward looking – what society gains from punishment
Punish people if punishment confers benefits to society
Deterrence
General – people won’t want to do it if they will be punished
Specific – that person can’t do it again
Incapacitation
If locked up, can’t hurt society
Reform / Rehabilitation
If reform individual, society will be safer
General Principle: involves the greatest good for the greatest number of people
Proportionality
Sentence must be proportional to the crime committed
8th A.
Gravity of offenses and the harshness of the penalty
Sentences imposed on other criminals in same jurisdiction
… In other jurisdictions
Ewing v. California (2003) – recidivist steals golf clubs,
CA Three Strikes rule
O’Connor: not grossly disproportionate
Considering whether a sentence is grossly disproportionate:
Gravity of offense and harshness of penalty
Sentences imposed on other criminals of the same jurisdiction
Sentences imposed for commission of same crime in other jurisdictions
In weighing gravity of ∆’s offense, must place on the scales his long history of recidivism
Process & Prohibitions
Criminal Process
Discretion
Role of Fact finder (Jury Nullification)
Made possible by double jeopardy clause
Shields someone from criminal liability indefinitely
Criminal Statutes
Principles of legality
Statutory Clarity – Void for Vagueness
In re Banks (N.C. 1978) – peeping tom statute NOT overly broad or vague
Clarity of statute should be judged in light of its common law meaning, its statutory history, and prior judicial interpretation
The statute in question was sufficiently narrowed by judicial interpretation to require that the act condemned be a spying for the wrongful purpose of invading the privacy of the female occupant
Muscarello v. United States – “carrying” a firearm
Lenity applies when after seizing everything from which aid can be derived, we can make “no more than a guess as to what Congress intended”
There must be “grievous ambiguity or uncertainty” in the statute
Lenity Doctrine / Strict Construction
Keeler v. Superior Court (Cal. 1970) – unborn fetus, not viable
When the legislature couches a statute in common law language, its intent was to continue those rules in statutory form
Refused to extend definition of human being in CA’s murder statute  it was later amended to include this
To adopt the People’s argument would be an excess of judicial power
Legality: Against judicial law making
Actus Reus
MPC § 2.01
Negative definition – everything that does NOT fall w/in definition IS a voluntary act
Mere thoughts are never punishable as crimes
Knowledge
With crimes like possession, only conscious possession counts
Act must be Voluntary
Must include both:
The conduct; and
The harmful result
Martin v. State
Involuntarily and forcibly carried to that [public] place by the officer to be in violation of the statute
Involuntary acts:
Reflex / Convulsion
Unconsciousness
Hypnosis
Self-induced state NOT involuntary
State v. Utter (Wash. 1971) – drunk veteran stabs sonVolition is required to establish actus element
When the state of unconsciousness is voluntarily induced through the use and consumption of alcohol or drugs, that state of unconsciousness does not attain the stature of a complete defense
Omissions
Failure to act that can establish Actus Reus
Criminal liability for an omission ONLY attaches when there is a legal duty.
Statute imposes a duty
Special Relationship
Contract
∆ caused danger/risk of harm to another
People v. Beardsley – should have been guilty, but he wasn’t…
Because she chose to take the drugs, she was essentially choosing to kill herself, ∆ would have had a duty to care for her because she was
Hard to see how he was not exclusively in control of her care through that sort of duty, especially when he had her moved to the basement…
Undertaking, especially where ∆ leaves V worse off than before “helped”
Jones v. United States
Situations where Omissions might constitute a breach of duty:
Statutorily imposed duty
Special relationship
Contractual duty to care for the other
Voluntarily assumed care of another and so secluded the helpless person to prevent others from rendering aid
When a person creates a risk of harm of another
Social Harm
Result Crimes
Punishing for harm resulting from acts or omissions – “social” harm because it’s from a crime
Conduct Crimes
E.g. driving under the influence of alcohol
Hypothetical social harm – other drivers are less safe
Mens Rea – that there must be a “culpable state of mind”
Intent
Common Law:
Purpose OR knowledge
Results that the actor wants to occur (purpose); and
Results that the actor knows are virtually certain to occur (knowledge)
Regardless of desire for them to happen
MPC: “MPC is obsessed w/ Mens Rea” – person not guilty unless
Acted in one of the 4 mental states
w/ respect to each material element of the offense §2.02(2)
Purposely
Conscious object to engage in particular conduct or cause particular result
Aware of attendant circumstances or believes or hopes they exist
Knowingly
Aware that conduct is of that nature or that such circumstances exist
Practically certain that his conduct will cause such a result
Recklessly
Consciously disregards a substantial and unjustifiable risk
A gross deviation from the standard of conduct that a law-abiding person would observe in actor’s situations
Negligently
Default Mental States:
MPC: recklessness (and anything more)
Common law: Knowledge (and purpose)
General v. Specific Intent
Distinction determined from context of particular crime
State 1
General Intent:
No particular mental state set out in definition of crime
Only need to prove actus reus occurred and that there was a “guilty mind”
Specific Intent
Mental state expressly set out in the definition of the crime
State 2
Specific Intent
Can also mean the mens rea element of “intent” (Higher Mental State) 
“Purpose” of “Knowledge”
General Intent
Reserved from crimes that permit conviction on the basis of a less culpable mental state
“Negligence” & “Recklessness”
State 3
General Intent
Any mental state associated with only the actus reus
“Baseline Offense” – Prof. Fairfax
Specific Intent
Specific mental element which is required over and above any mental state required w/ respect to the actus reus of the crime
Possession w/ intent to distribute
Assault w/ intent to kill
Sale of obscene literature to someone under 18
Transferred Intent
Applicable for crimes, like in Torts
People v. Conley – guy ducks and other kid gets cracked
For an injury to be deemed disabling, all that must be shown is that the V is no longer whole such that the injured bodily portion no longer serves the body in the same manner as it did before
Here, ∆’s conscious objective was to engage in conduct that constituted an aggravated battery
Intentionally or knowingly casing great bodily harm or permanent disability or disfigurement
Practically certain that the results were to be caused by his conduct
Willful Blindness – the “ostrich” instruction (p 168)
MPC:
“aware of a high probability” – high probability of the existence of a fact
State v. Nations –not adopting willful blindness, as suggested by MPC
Knowledge is established if a person is aware of a high probability of the existence (of the circumstance)
Applies to situations involving a matter of existing fact, NOT when what is involved is the result of ∆’s conduct, necessarily a matter of the future at the time of acting
∆’s disregard of the risk (of endangering a child) was a “gross deviation” from the norm
HOWEVER, this is merely recklessness – not KNOWLEDGE
United States v. Heredia
A jury may not find such knowledge if the ∆ actually believed (wrongly) that there were no drugs in the car; or that ∆ was simply careless
Strict Liability
United States v. Cordoba-Hincapie sets out the common law
Statutory Rape & Public welfare offenses
Presumption that the crime will require proof of mens rea
Need some indication of legislative intent, either express or implied, to say that mens rea is NOT required
The one clue for determining legislative intent is the severity of the penalty
MPC §2.05 – Rejects strict liability
Downgrades crimes to “violations” w/ lesser penalties
Staples v. United States
Statute is silent as to mens rea for violation of National Firearms Act
Court was reluctant to impute the purpose of congress where, as here, it would mean easing the path to convicting persons whose conduct would not even alert them to the probability of strict regulation in the form of a statute
Imposing severe punishments for offenses that require no mens rea would seem incongruous
Mistake – MPC 2.04
Mistake is least likely to assist in crimes of general intent
Mistake of Fact
MPC § 2.04 (1) – “obsessed w/ mens rea”
If mistakenly think guilty of lesser crime, culpable for the lesser crime (not actual crime committed) – MPC 2.04 (2)
If you can show ignorance or mistake negates mens rea, you will not be convicted
Common Law
General Intent
Perkins Rule: Only a reasonable mistake of fact provides legitimate defense
Moral Wrong Doctrine:
Exception to mistake of fact defense:
If underlying conduct was immoral, courts will sometimes deny mistake of fact
Through the eyes of the ∆
When mistake is reasonable, but conduct immoral
Legal Wrong Doctrine:
Reasonable mistake of fact, but underlying conduct is illegal
Specific Intent
Either reasonable or unreasonable mistake negate specific intent
People v. Navarro (Cal. 1979) – didn’t know he was “stealing” stuff from construction site
Burglary, like theft, is specific intent crime
Lacked criminal intent due to mistaken belief
A felonious intent can only proven by what the accused knew
Honest mistake of fact or law is a defense when it negates required mental element of a crime
Strict Liability
No mens rea requirement
Mistake not a defense
Questions to ask when determining mistake of fact:
Is the offense a general intent offense, a specific intent offense or a strict liability offense?
If it is a specific intent offense, does the mistake relate to the specific intent element of the offense?
If YES, determine whether that mistake of fact negates that specific intent element, and if it does, than the person is NOT GUILTY.
If NO, treat the offense as if it were general intent
If general intent, do culpability analysis:
Did the defendant act in a moral blameworthy way—was t here a guilty mind at play here?
If mistake was UNREASONABLE, there is a guilty mind and the person is culpable.
If the mistake was REASONABLE, the defendant is not morally blameworthy and therefore if no culpable – UNLESS
The moral wrong doctrine applies or
The legal wrong doctrine applies
If strict liability offense, mistake is NOT a defense
Mistake of Law
General Rule: NOT an excuse
3 Exceptions
Ignorance mistakes mens rea
“Same law” mistake not a defense
“Didn’t know what this law meant”
“Different law” mistake  CAN be a defense for specific intent
thought you were following different statute
Reasonable reliance
When a public official tells you it’s ‘ok’
Fair notice
Lambert v. California (1975)
Actual knowledge of a duty to register or proof of probability of knowledge and failure to comply are necessary for a conviction of something dealing with “wholly passive” behavior
MPC:
2.02(9), 2.04(1), Reliance - 2.04(3)(b), 2.04(3)(a) – Fair notice

Causation
Cause in Fact – Actual Cause
Velazquez v. State
There can be no criminal liability unless it can be shown that the ∆’s conduct was a cause-in-fact of the prohibited result
If the result would not have occurred “but for” the ∆’s conduct
Substantial factor
When two ∆s, acting independently, commit two separate acts, each of which alone would be sufficient to bring about the prohibited result
Shortening V’s life will likely be a substantial factor
Oxendine v. State
Acceleration is sufficient causation, but aggravation and contribution is not sufficient causation
Proximate Causation – Legal Cause – MPC 2.03(2)(b)
Generally arise when intervening “but for” occurrence takes place after offender commits actus reus but BEFORE result occurs
Act of god
Act of independent 3rd party which accelerates or aggravates the harm caused by ∆
Act of omission of the V that assists in bringing about the outcome
Superseding cause
“mushy”, policy-laden determination of most morally culpable actor

Unit 2

Homicide

COMMON LAW / MPC
First Degree Murder
1. Premeditated and deliberate / Murder – No Degrees
1. Purposefully or knowingly OR recklessly under circumstances manifesting extreme indifference to the value of human life
Second Degree Murder
1. Malice aforethought OR EXTREME recklessness; depraved heart murder
Voluntary Manslaughter (Murder Mitigated)
1. Heat of passion/provocation / Manslaughter
1. Recklessly or murder under extreme mental or emotional distress
Involuntary Manslaughter
1. Criminal negligence, “regular” recklessness / Negligent Homicide
1. Homicide committed negligently

Pre-Meditation
1st degree murder
Premeditation and deliberation
e.g. lying in wait, poison
planning, motive, and manner of killing that is so precise that it suggests a preconceived design
Certain circumstances might mitigate 1st degree into 2nd degree
State v. Schrader:
Premeditation can occur in the twinkling of an eye
Not necessary that intention to kill exist for any set length of time prior to killing
Only that the intent to kill come into existence at the time of such killing
State v. Guthrie (W.Va. 1995)
Premeditation: a sufficient duration for the accused to be fully conscious of what he intended
Must be some period of time of consideration to be premeditation
Any interval of time between forming of intent to kill and the execution of that intent is sufficient for conviction of 1st degree murder
People v. Morrin (Mich. 1971)
To premeditate is to think about beforehand
To deliberate is to measure and evaluate the major facets of a choice or problem
Premeditation and deliberation characterize the thought process undisturbed by hot blood – not in the heat of the moment
No way to determine minimum time necessary, but interval must be long enough to “take a second look” long enough to think twice before committing
Question is often “how long is long enough” to constitute premeditation
Can be convicted of murder based solely on circumstantial evidence as long as jury believes it
State v. Midgett
Those accused of first degree murder must be given the benefit that they be shown substantial evidence to have premeditated and deliberated the killing, no matter how heinous the facts may otherwise be
State v. Forrest
Circumstances to be considered for conviction of murder based on circumstantial evidence:
Want of provocation on part of deceased
Conduct and statements of ∆ before and after the killing
Threats and declarations of ∆ before and during the course of the occurrence giving rise to the death of the deceased
Ill-will or previous difficulty between the parties
Dealing of lethal blows after the deceased has been felled and rendered helpless
Evidence that the killing was done in a brutal manner
Common law – “Plain Old Murder”
Almost always 2nd degree murder
Requires proof of “Malice Aforethought” - 4 types of murder, generally:
Intent to kill
Either purposely or knowingly that the death would almost certainly result from actor’s actions
Express Malice:
Intent to kill, or
Intent to cause grievous bodily injury
Implied Malice
Depraved Hear murder
Abandoned or malignant heart
Act that is conscious disregard of value of or danger to human life
Intent to cause grievous harm
Purposely or knowingly
Depraved heart murder – don’t need to be Scar from the Lion King
Unintentional killing
Extreme Recklessness
Conscious disregard of a risk – MPC: subjective
Extreme indifference to the value of human life
People v. Knoller (Cal. 2007) – dogs
Implied malice requires ∆’s awareness of the risk of death to another and that they act w/ conscious disregard of the danger to human life
Risk of serious bodily injury suffices
Intent to commit a felony
Voluntary Manslaughter
An intentional homicide done in a sudden heat of passion caused by adequate provocation before there has been a reasonable opportunity for the passion to cool
Girouard v. State (Md. 1991)
Rule of Provocation
Must be Adequate Provocation (examples):
Discovery of a cheating spouse – often no longer adequate
Mutual combat, e.g. ∆’s illegal arrest
Assault and battery
Extreme assault and battery on ∆
Injury or serious abuse of a close relative of the ∆
Mere words are never enough
Heat of passion
Before passions cool / right after the provocation
Causal connection between provocation, passion, and the fatal act
MPC – on Manslaughter
Words are enough to mitigate murder to manslaughter (UNLIKE the common law)
Victim does NOT need to be the one who provoked the ∆
∆ could have been mistaken over the fact of whether or not the victim provoked the ∆
Does NOT have to be a sudden provocation
Could be a build-up of several things that led to the action