Theories/Purposes of Punishment
Tremayne Bunaugh
Fall 1998 - Cottrol (CRIM. LAW)
Theories/Purposes of Punishment
A. Purposes of Punishment
1. General Deterrence - prevent others from committing the same crime
2. Specific Deterrence - stop recidivism
3. Rehabilitation - get the criminal to conform to society’s rules
4. Incapacitation/Incarceration - remove the criminal from the public for the safety of the public
5. Retribution - views crime as a moral matter that calls for punishment
Punishment should be commensurate with the crime—esp. the Death Penalty
Utilitarian concerns are secondary
6. Defines society’s boundaries - for utilitarian reasons
some activities harm others
use law to make a moral statement even when there is no victim:
Prostitution, sodomy, alcohol use
perhaps gun control (b/c doesn’t really keep guns from criminals)
· Different players assert different view based on their interest—prosecutor, defense attorney, victim’s rights advocate. ***on exam: give cogent arguments for the different policies and why one should prevail
· These views often conflict
à deterrence and retirbution conflict with rehabilitation
· if no early release, why would prisioner try to rehab. himself?
· if early release, does the prisioner get his just desserts?
à Retribution and Utilarian Deterrence
· Few shoplifters are caught so in order to dissuade others, make the punishment harsh—execution….but this isn’t just.
· What about mental capacity? Those not morally culpable.
Should the insane avoid prison? If so, do they get their just desserts.
· Should we consider the D as an individual?
Take into account his background or just be concerned with the gravity of the crime he committed?
B. Theories/Justifications of Punishment
1. Kant – Retributivist
a. doesn’t view deterrence or rehabilitation as primary consideration. Those utilitarian benefits are fine if they occur, but the focus is on punishment b/c justice demands it. Societal debts must be paid.
b. Proportionality: the punishment should fit the crime
c. His writings come at a time when deterrence is a focus in society—late 18th century
2. Murphy
a. In an imperfect world we cannot obtain the Kantian model of “pure justice”.
3. Differences in Crime
a. malum in se
· acts considered evil in an of themselves, don’t need statute to make them wrong
· danger to life and limb—robbery, battery, DWI, homicide
b. malum prohimitum
· acts made criminal by the legislature for public policy reasons. Act may be legal in some jurisdictions and not in others.
4. Question of Rehabilitation
a. prison essays
5. Severity of Punishment
a. essays on sentencing
b. essays on discretion
c. alternative sentencing
C. Sentencing
1. White collar crime v. street crime
a. rich v. poor - what about egalitarian notions of = punishment w/o regard to social status
non violent econ crime v. violent street crime
b. quantity of jail time as a deterrent: won’t a severe penalty (jail) deter others?
· Econ crime not easily deterred. The crime occurs over longer period of time. Much goes unreported or undetected. Smart people don’t think they will be caught. Actor usually has no criminal history.
· But, econ crimes often affect several people at once. What about those whose life savings are wiped out
· How severe a sentence can we give at a time when violent crime is rampant? Murderer serves average of 7 years, can we give an embezzler 10?
c. White collar advantages
· judge may empathize w/ background of white collar D. Education, civil, professional
· D can afford expensive psychological counseling à lapse in judgment b/c of divorce, tough childhood, pressures of wealth
· D can afford the best legal defense à Humanize you to the jury to create sympathy. Robber’s attorney doesn’t usually have time and resources to do this. Plus hard to sympathize with violent criminal.
d. Theories
· Posner - Econ efficiency. Impose severe fines.
Essential Elements For All Crimes
ACT ISSUES (ACTUS REUS) - the wrongful deed “guilty act” which renders the actor criminally liable if mens rea requirement is met. Generally, liability is based on an affirmative act. However, actors can be liable some acts of omissions.
A. Voluntariness - must be a voluntary act. This requires a mind-body connection.
à the act must be volitional—duress, drinking, habitual behavior
à not epileptic seizure, sleep walking, reflex, involuntary intoxication
B. Incomplete (Inchoate) Crimes - Solicitation, Conspiracy, Attempt, and even burglary
· Exam Tip: The primary issue with inchoate crimes is whether there is enough conduct to accompany the required specific intent.
C. Omissions - No crime occurs unless a legal duty to act exists - S.C.R.A.P.
a. Statute (i.e., must stop and identify self after auto crash)
b. Contract (i.e., lifeguard)
c. special Relationship (i.e., husband/wife)
d. Assuming care & secluding (i.e., caring for a sick relative in isolation)
e. wrongfully creating Peril to another (i.e., wrongfully harming another)
D. Prerequisites to Legal Duty:
1. Capacity to aid
2. No significant danger to rescuer
· Exam Tip: A legal duty is only an act substitute; the D also must be shown to have a culpable mental state to be convicted of a crime.
E. Policy/Rationale:
· law punishes the criminal acts not criminal minds
RESULT ISSUES - AKA CAUSATION
A. Results are required only for some crimes (i.e., homicide)
B. If required, need:
1. Cause-in-Fact (Actual):
a. Also called “but-for” or “actual cause”
b. Substantial factor test - if 2 or more simultaneous causes, both actors are held responsible (i.e., 2 people shoot a 3rd person in the heart & head, respectively à both responsible)
2. Proximate Cause (Legal):
a. requires a reasonably foreseeable result (i.e., D who leaves an intoxicated person on a highway in freezing cold weather w/o glasses and only some clothes is guilty of homicide when that person gets hit by a passing car - P. v. Kibbe)
b. If unforeseeable intervening cause exists, chain of proximate causation is broken.
MENTAL STATE ISSUES (Mens Rea) - addresses the D’s thoughts at the time of commission of the act (guilty mind).
A. A Mental State Is Required For Most Crimes
1. Exception: Public Welfare Offenses (selling liquor to minors, sale of adulterated food)
2. Exception - strict liability elements of crime (i.e., statutory rape)
B. Types of Criminal Mental States - modern trend has shifted from common law intent. Now defined by MPC.
The Mens Rea Pyramid: “PKRN”
1. Purpose - desired result (i.e., shoot a gun desiring to kill the victim)
2. Knowing - conscious awareness that results practically certain to occur (i.e., blow up a bus to disable it knowing that passengers will die)
3. Reckless - conscious disregard of a substantial and unjustified risk (i.e., drag racing friend around a blind curve)
4. Negligence - disregard of a substantial and unjustifiable risk (i.e., empty headed Mr. Magoo)
C. Important Mens Rea Distinctions:
1. Intent is a type of mental state.
2. Intentional/Willful = purpose or knowing mental states
3. Malice = purpose, knowing or reckless mental states
D. Specific Intent/General Intent: - criminal intent at common law
1. Some crimes require specific intent while other require only general intent.
2. Specific intent - specific mental element is required to commit a particular crime. Any crime that contained a particular state of mind requirement is classified as a specific intent crime. Crimes include: Murder in the 1st degree (premeditated), inchoate crimes, including attempt, solicitation, conspiracy, Assault, Larceny, False Pretenses, Embezzlement, Robbery and Burglary
3. General Intent - intent to commit the act which constituted the crime. Crimes include: Battery, Rape, Negligence, Involuntary Manslaughter
4. Transferred Intent - transfer from victim to victim must be the same crime. Will not transfer from crime to crime – throw rock at window, hit person = no intent to batter, intent to damage property. However could be charged with recklessness.
· The D can be liable under the doctrine or transferred intent where she intends the harm that is actually caused, but to a different victim or object. Defenses and mitigating circumstances may also usually be transferred. The doctrine of transferred intent applies to homicide, battery, and arson. It does not apply to attempt.
Exam Tip: Use the mens rea pyramid to distinguish mental states.
Exam Tips:
1. Many criminal law questions depend on a person’s Mens Rea.
2. While “purpose” is the most culpable mental state and “negligence” is the least culpable, some of the most serious crimes only require low culpability mental state (i.e., rape requires a negligent mental state), and vice versa.
3. Mental state is often inferred by a person’s conduct or surrounding circumstances.
E. Levels of Culpability
a. Subjective fault - criminal liability is imposed on actor for intentional and willful conduct
b. Objective fault - criminal liability is imposed on actor for negligent or reckless conduct
c. Strict liability - criminal liability is imposed on actor regardless of fault (generally limited to regulatory crimes – Statutory Rape is big exception)
d. Vicarious liability - criminal liability is imposed w/o mens rea requirement (i.e., holding store owner liable for selling alcohol to minor)
F. Standards of Culpability
a. Subjective standard - reviews conduct of actor from his point of view.
b. Objective standard - reviews conduct from the “reasonable” actor point of view. (This is reviewed from the same circumstances as the D.)
G. Policy/Rationale for Mens Rea
· Demonstrates Moral Culpability - convictions impose stigma of moral condemnation. Therefore, only morally reprehensible behavior should be punished. Conduct deemed morally wrong must be intentional. This assures that only convicted are morally wrong.
· Filters out those Dangerous to Society - in addition, the requirement of mens rea tends to identify those most dangerous to society. Arguably, one who “unintentionally” engages in conduct or causes a result in less inclined to engage in future dangerous conduct than one who “intentionally” does the same thing. Accordingly, a requirement of mens rea narrows the focus to those who pose a serious threat to others and helps to assure that society will be protected from those most likely to do harm.
H. Defenses to Mens Rea
1. Mistake of Fact - an honest and reasonable ignorance or forgetfulness as to matter of fact, past or present can negate the requisite mens rea of crime. The ignorance cannot be the result of a person’s negligence.
2. Mistake of Law - a mistake or ignorance as to a matter of law is generally not allowed as a defense. This position is taken to help ensure that there is integrity and efficiency in our judicial process. However, this defense may be allowed if the mistake or ignorance is a result of (a) a law not being published, (b) a law being determined invalid, (c) the reliance on a court decision, and (d) advice from a public official. The court scrutinizes the situations surrounding these cases very closely.
I. Other Topics Related to Mens Rea
1. Malum en se - crimes that are inherently dangerous, bad, or immoral in themselves (i.e., murder and manslaughter)
2. Malum prohibitum - acts that are made criminal not b/c they are inherently wrong but because their prohibition is necessary to regulate the general welfare. (Note: some argue that malum prohibitum crimes should be more flexible with regard to the mistake of law defense b/c the crimes are not inherently wrong.
COMMON LAW/STATUTORY CRIMES
HOMICIDE
the unlawful killing of another human being
Exam Tip: The type of homicide committed usually depends on the actor’s mens rea.
Doctrine of Lesser Included Offenses - enables jury to convict D of lesser included offenses (2nd degree murder instead of 1st degree)
· within jury’s discretion to conviction on any of the lesser included offenses
· prosecutors favor this b/c allows for conviction in cases of sympathetic D or unsympathetic victim
· in DP cases, jury may convict of lesser offense to avoid sentencing D to death
A. Non-Criminal Homicide
Some homicide is lawful, i.e.,
1. justification (i.e., self-defense & necessity)
2. excuse (i.e., insanity)
3. death penalty
4. accidents (i.e., auto crashes)
5. war
B. Criminal Homicide:
1. Murder - the unlawful killing another human being with malice aforethought, either express or implied.
“Murder is the unlawful killing of another human being with malice aforethought.”
2. Elements:
· unlawful (not authorized by law) - without justification or excuse
· killing (causing death of another)
· human being (man, woman, or child) - human being does not include a fetus
· malice (intentionally doing a wrongful act w/o just cause or excuse) - malice means purpose, knowledge or gross recklessness, not ill will or spite
· aforethought (predetermination to commit act)
3. 1st degree - the premeditated unlawful killing of a human being with malice aforethought (deliberate and premeditated)
· majority opinion - premeditation and malice can be formed in an instance
“______can be (convicted/charged) (of/with) first degree murder. First degree murder is the unlawful killing of another human being with malice aforethought. Here, malice occurred when…[facts]. Malice is the state of mind which is reckless of law, a condition of the mind that prompts one to take the life of another w/o just cause, legal justification, or provocation.”
4. 2nd degree - reckless activity with a high risk of injury or death of which the D should have been subjectively aware
· depraved heart murder - actions so reckless they carry implied malice - Russian roulette
“______can be (convicted/charged) (of/with) second degree murder. Second degree murder is the killing of another human being accomplished by (a) extreme indifference for life; (2) gross recklessness that implies a “subjective appreciation” of the unjustifiable and a very high degree of risk of death or serious bodily injury to another or to others; and (3) though unaccompanied by any intent to kill or do serious bodily injury and which actually causes the death of another. Malice aforethought is implied if a person’s conduct manifests an extreme indifference to the value of human life. Here,…[facts].”