THEORETICAL DIMENSIONS

Why punish?

Deterrence (Bentham)

  1. Bentham was a utilitarian
  2. Main concern was maximizing utility in human welfare
  3. Deterrence argument
  4. If the consequence for committing an act is greater than the pleasure of good that come from it, people won’t commit the act
  5. Gain < Penalty x Probability of penalty
  6. Doctrine of “wasted punishment”
  7. Sometimes, the costs of punishing people are not worth it
  8. “When it is unprofitable, or too expensive: where the mischief it would produce would be greater than what it prevented,” the crime is “unmeet for punishment”

Individual Desert (Kant)

  1. Humans have moral obligations to each other; when they invade someone else’s rights they deserve punishment
  2. People may not use other people as means to an end
  3. Punishment must be proportional to the crime

Expressive Value (Jean Hampton)

  1. Laws reflect the ideals and morals of society
  2. By committing a crime, a person expresses that their own worth is greater than the worth of their victim
  3. Punishment restores equality between persons
  4. Level of punishment reflects how society thinks of a given crime

Individual conceptions of punishment:

  1. Specific deterrence
  2. Individual desert

Societal conceptions of punishment:

  1. General deterrence
  2. Expressive value

How to punish?

People v. Chaney

  1. Facts of the case
  2. Chaney raped woman four times and stole from her
  3. Chaney was a member of the military, generally a good person
  4. Outcome
  5. Prosecution asked for 5 years for rape, 2 years for robbery
  6. Judge only sentenced Chaney to one year, with recommendation for quick parole
  7. Why was this sentence too light?
  8. Deterrence
  9. Possibly only ten days in jail… Other soldiers might think they can get away with crimes too
  10. Proportionality (Kant)
  11. Punishment must be proportional to the crime, otherwise it seems like the society condones rape/violence
  12. Expressive value (Hampton)
  13. Chaney devalued the woman severely, so the punishment should also be severe

People v. Du

  1. Facts
  2. Du shot a girl in the back of the head after a fight in her liquor store
  3. Defense said that the shooting was in self defense, and the gun was faulty and Du didn’t mean to fire
  4. Outcome
  5. Du ended up with a suspended sentence (probation), community service and a fine
  6. Theoretical analysis
  7. Deterrence (Bentham)
  8. No need for strong punishment as a deterrence because this was an extraordinary incident, probably won’t happen again
  9. Or does it set a precedent for similar violence in the future?
  10. Fairness/proportionality (Kant)
  11. Du was under great duress, her victim was very aggressive
  12. However, robbery is not proportional to murder
  13. Expressive value (Hampton)
  14. This was not an intentional devaluation of the victim; Du was merely protecting herself
  15. However, does the light sentence show that society puts little value on the lives of young black people?

Bernard Bergman

  1. Facts
  2. Old, well-respected philanthropist pled guilty to two separate felonies (submitting false claims and filing false partnership information)
  3. Outcome
  4. Maximum penalty would have been $15,000 fine and 8 years in prison
  5. Defense proposed no prison time

Arguments for shaming sentences

  1. Less costly for society as a whole
  2. Less debilitating for criminals
  3. Still expresses condemnation
  4. Imprisonment is costly for taxpayers, families, etc.

Argument against shaming sentences

  1. It makes sense objectively, but it is still offensive
  2. Re-integration and therapeutic justice would make more sense

What to punish?

Wisconsin v. Mitchell

  1. Facts
  2. Mitchell and a group (all black men) decided to beat up a white boy
  3. Outcome
  4. Mitchell was charged with aggravated battery; received enhanced sentence
  5. Wisconsin Statute (found to be constitutional) allows criminal conduct to be more heavily punished if the victim is selected because of race or other protected status
  6. Reasoning
  7. Bias-inspired confuct inflicts greater individual and societal harms
  8. Bias crimes are more likely to provoke retaliatory crimes and cause unrest

Lawrence v. Texas

  1. Facts
  2. Two men were charged with sodomy after having sex inside their home
  3. Outcome
  4. The statute prohibiting individuals of the same gender from engaging in private, consensual sex acts violated privacy rights secured by the Due Process Clause
  5. Overturns Bowers v. Hardwick

Do we legislate morality?

  1. Sometimes
  2. Public interpretation of an act can be the basis for criminality
  3. NO example (Lawrence v. Texas)
  4. Moral disapproval is not a legally cognizable reason for criminalization
  5. The crime must actually be harmful
  6. YES example (Wisconsin v. Mitchell)
  7. The hateful nature of hate crimes is additionally harmful
  8. Legislation works… disapproval of racially motivated crimes has increased dramatically

INSITUTIONAL DIMENSIONS

Courts v. Legislatures

Doctrine of Desuetude

  1. Long and continued non-use of a law renders it invalid
  2. Doctrine applies in some, but not all, jurisdictions

Commonwealth v. Stowell

  1. Facts
  2. Two police officers in MA observed a woman having a conversation with a man in a van; she then entered the van
  3. The police followed the van and observed the pair having sex
  4. They were both arrested on charges of adultery
  5. Outcome
  6. Defense argue that the statute is rarely enforced and thus should be rendered invalid; people may not realize the act is criminal
  7. Court holds that only the legislature can invalidate the law
  8. This could be problematic since the legislature has no incentive to act and it may be politically difficult to repeal

Doctrine of Legality

  1. The law must be clear, ascertainable and non-retrospective. Criminal sanctions may not be imposed for acts that were not criminal at the time of their commission.

Rationale for legality

  1. Fairness – we should be able to rely on the law to tell us what is wrong
  2. Liberty – we can’t curtail liberty just because we have an intuition that something was wrong
  3. Legislative supremacy – The court can’t make new criminal law by broadly interpreting a statute

Under/Over Punishment

  1. Courts should err on the side of under-punishment (Bentham)
  2. Under-punishment is easier to correct by the legislature than over-punishment
  3. “Senator Self-Interested” wants to seem tough on crime

Keeler v. Superior Court

  1. Facts of the case
  2. Keeler was in the process of divorcing her husband; she was pregnant with another man’s child
  3. Keeler’s soon-to-be-ex husband kicked her in the stomach with the intention of killing the fetus
  4. Outcome
  5. The man was not charged with the murder of the fetus, because there was no law against killing a fetus at this time
  6. Reasoning
  7. Due process extends to all people, good and bad
  8. Legislature must be the ones to change the law
  9. Legislature can expand/change the law more precisely
  10. If the court rules that feticide is murder, no legislator would ever go against it
  11. Strictly interpreting statutes allows for error-correction

Doctrine of Lenity

  1. In construing an ambiguous criminal statute, the court should resolve the ambiguity in favor of the defendant… they should always choose the narrow reading of the law

United States v. Zavrell

  1. Facts of the case
  2. Rosemary Zavrell decided to “get back at” two boys for getting her son in trouble by framing them
  3. She sent cornstarch in the mail under the boy’s names to prominent officials, making them think it was anthrax
  4. Outcome
  5. Court defines this act as a threat to injure
  6. Reasoning
  7. The court overreaches… there was ambiguity in the statute, but they chose to go against the doctrine of lenity and punish anyway
  8. The harm was immediate, not prospective… she didn’t threaten to expose them to the powder, she DID expose them
  9. Court found that recipients could be threatened by possible future harm from this hostile sender
  10. Court overreached due to public hysteria over anthrax at the time

The community

Gang congregation ordinance:

  1. Suspects must be loitering with “no apparent purpose”
  2. An officer must reasonably believe that two or more are gang members
  3. An officer must order them to disperse
  4. They must refuse to disperse

Pro/Con Arguments

  1. Pro-ordinance
  2. Increases liberty for non-gang members
  3. Increases gang members liberty by offering an alternative to “tough on crime” policies and long prison sentences
  4. Many minority members of the community approve
  5. Anti-ordinance
  6. Allows police to arbitrarily target gang members
  7. Members could be congregating for innocent purposes
  8. How can a person know if they are “loitering”?
  9. Expressively offensive because it targets minority citizens

The jury

Duncan v. Louisiana

  1. Facts of the case
  2. A dispute broke out between a group of boys, seemingly race-based
  3. Duncan, a black man, attempted to break up the dispute and slapped one of the white boys… Duncan claimed he merely touched him
  4. Trial Outcome
  5. Duncan was denied a jury trial and charged with battery; Louisiana Constitution grants jury trials only in cases in which capital punishment or imprisonment at hard labor can be imposed
  6. Appeal Outcome
  7. If the potential sentence is 6 months or more, criminal defendants have a right to a jury trial
  8. Benefits of jury trial
  9. Judge could be racially biased
  10. A jury might be more likely to see the ridiculousness of the case
  11. Less likely to get 12 racist people than one definitely racist judge

US v. Moon

  1. Facts of the case
  2. Moon was an Asian religious leader charged with tax fraud
  3. Moon got bad press for taking out an ad in the NY Times claiming he was the victim of racial/religious discrimination
  4. Prosecution asked for jury trial, defense wanted bench trial
  5. Defense claimed that because of the bad press he would be unable to find an unbiased jury
  6. Prosecutors said that because the defendant raised concerns about the fairness and propriety of the trial, a jury trial was necessary to prove to the community that this was a fair and transparent process
  7. Outcome/Holding
  8. The defense had to go forward with a jury trial
  9. There is no right NOT to have a jury trial

Right to a jury trial: If you can’t find a fair jury, the trial cannot go forward

  1. A normal defense would never ask for a bench trial to avoid an unfair jury… they would just skip the trial altogether

Jury nullification: Should jurors disregard the law? Can/should we deny them instructions regarding that power?

ACTUS REUS

Voluntary Acts

MPC Section 2.01: Requirement of a Voluntary Act

  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 of which he is physically capable”
  2. The following are NOT voluntary acts:
  3. Reflex or convulsion
  4. Bodily movement during unconsciousness or sleep
  5. Conduct during hypnosis
  6. A bodily movement that otherwise is not a product of the effort or determination of the actor

When there are multiple acts, courts can read the voluntariness requirement as applying to any or all of them

People v. Newton (unconsciousness)

  1. Facts
  2. Huey Newton got into a fight with several police officers
  3. Newton was shot and also shot an officer, he claimed that he was unconscious from his own bullet wound when he fired the fatal shot
  1. Outcome
  2. Newton was initially convicted of voluntary manslaughter; courts finds that he was entitled to an instruction that involuntary unconsciousness is a defense
  3. Unconsciousness defeats liability, jurors should be instructed as such

Sleepwalking may result in acquittal

  1. Kenneth Parks – acquitted for attempted murder of his parents-in-law
  2. Alan Ball – acquitted for sexual assault after kissing a child on the lips

Jacobs v. Commonwealth (conscious but involuntary)

  1. Facts
  2. Jacobs killed a man after an argument
  3. His defense tried to claim that his temper rendered his acts involuntary
  4. Outcome
  5. Jacobs’ acts were NOT involuntary
  6. Courts sometimes view people to be the moral authors of their own impulses, even when their actions are involuntary
  7. The law is unforgiving when it comes people like Jacobs who have no control over their actions due to a bad temper

Martin v. State (conscious but involuntary?)

  1. Facts
  2. Martin was convicted of being drunk in public
  3. He had been arrested in his home and then taken onto the highway by the police, where he “manifested a drunken condition”
  4. Outcome
  5. Martin was not guilty because he was involuntarily taken into public
  6. Where there are multiple acts, courts can read the voluntariness requirement as applying to any or all of them
  7. Circumstances help courts make these determinations (such as placing oneself in a position where future acts will be compelled, like being drunk at a bar at closing time… was the act getting drunk? Was it appearing in public?)
  8. Courts can thus “roll back” the act to which they apply to voluntariness requirement where it seems appropriate

Virginia bar raids (arresting people for public drunkenness)

Causation

A defendant’s actions are usually said to be the “cause” of a forbidden result only when they are both the “but-for” and “proximate” cause of that result

“But-for” Cause

  1. The act is necessary to the result, “but for” the act the crime would not have happened (doesn’t have to be the only cause of the result)

Proximate cause

  1. The crime was a reasonably foreseeable consequence of the act

People v. Acosta (proximate cause/foreseeability)

  1. Facts of the case
  2. Acosta led the police in a car chase for 48 miles, engaging in egregious driving tactics
  3. There were helicopters tracking the cars in the chase, two of these helicopters collided, killing three people
  4. Holding: Acosta is charged with manslaughter
  5. “But-for” cause
  6. If Acosta hadn’t have started the chase, the helicopters wouldn’t have collided
  7. Proximate cause
  8. A reasonable person could have foreseen helicopters getting involved
  9. Any high speed chase situation has inherent risks for crashes
  10. Dissent: No proximate cause
  11. Acosta’s egregious driving tactics had no effect on the helicopters in the air; he may not have even known that helicopters would be involved; an FAA expert testified that the crash was a result of pilot error… how could Acosta have predicted this chain of events?

People v. Arzon (proximate cause/foreseeability)

  1. Facts of the case
  2. Arzon set fire to a couch on the 5th floor of an apartment building
  3. The fire got out of control, firemen got involved
  4. One of the firemen died after being exposed to dense smoke
  5. It was found that the smoke that killed the fireman came from a DIFFERENT fire on the second floor
  6. Holding: Arzon was found guilty (of….??)
  7. Arzon had put the firefighter in such an obviously dangerous situation… it was reasonably foreseeable that he could’ve been injured
  8. But for Arzon’s arson, the fireman wouldn’t have died

People v. Warner-Lambert Co. (proximate cause/foreseeability)

  1. Facts of the case
  2. There was an explosion at a gum factory… Management had been told by inspectors that the chemicals they were using were dangerous and at risk of exploding
  3. Holding: Defendants were NOT criminally liable
  4. The explosion was not reasonably foreseeable
  5. It is unknown what ignited the explosion… The fact that the explosion happened at that moment wasn’t foreseeable

MPC Section 2.03: Causal relationship between conduct and result

  1. Conduct is the cause of a result when:
  2. It is an antecedent but for which the result in question would not have occurred, AND
  3. The relationship between the conduct and result satisfies any additional causal requirements imposed by the Code
  4. When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor UNLESS:
  5. A different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused
  6. The actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a just bearing on the actor’s liability or on the gravity of his offense
  7. When recklessly or negligently causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware, or in the case of negligence, of which he should be aware UNLESS:
  8. A different person or different property is injured or affected or that the probably injury would have been more serious or more extensive than that caused
  9. The actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a just bearing on the actor’s liability or on the gravity of his offense
  10. When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probably consequence of the actor’s conduct

Different between common law and MPC causation:

  1. Proximate cause = Reasonably foreseeable
  2. MPC = “Actual result is not too remote or accidental to have a just bearing on the actor’s liability or on the gravity of the offense”

Intervening Acts

  1. The act of another person may “break the chain” of causation between the defendant’s wrongful act and some forbidden result

Stephenson v. State

  1. Facts of the case
  2. Defendants kidnapped and repeatedly assaulted and raped Oberholtzer over several hours/days
  3. At one point she was escorted out to make some purchases… she bought and ingested poison
  4. She later asked for medical care or an antidote to the poison, but the defendants refused and she died
  5. Holding: The defendant was liable for murder
  6. The assaults drove her to suicide
  7. She became unreasonable/insane as a result of the assaults
  8. She is no longer “the author of her own acts”
  9. She also asked for help and wasn’t given it
  10. The intervening act (the suicide) was reasonably foreseeable
  11. Shame and despair capable of prompting suicide was a logical consequence… Related cases show precedent for women committing suicide after similar experiences

Hendrickson v. Commonwealth