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What are the 5 theories of punishment?
- 1. retribution
- 2. incapacitation
- 3. denunciation
- 4. deterrence
- 5. rehabilitation
definition of denunciation
condemn openly and publicly to declare an act/thing a crime and prescribe punishment for it
theory of denunciation
society registers its disapproval of act; society won't tolerate this behavior
purpose of denunciation
- 1. reaffirm/maintain social values
- 2. educate public as to social rules
- 3. show that system works
- 4. prevent vengenace
- 5. communicates shamer's disgust for both offender and offense
5 conditions required for denunciation
- 1. members of potentially identifiable group
- 2. sanctions must actually compromise standing in that group
- 3. shaming must be communicated and executed
- 4. fear of shunning
- 5. ability to regain standing UNLESS so bad as to warrant exile or demotion
weakness of denunciation
- 1. worse on social norms of decency and dignity even more so than prison
- 2. private retaliation - "lynch mob justice"
- 3. lack of deterrence when prison would be more effective
- 4. discourages reintegration of offender into society
definition of retribution
society is getting its revenge; punishment is repayment of D debt to society incurred by the harm caused
theory of retribution
crime justifies the punishment
"eye for an eye" or "just desserts"
purpose of retribution
what was done = what the punishment is
equality of punishment/sense of fittingness
application of retribution
- 1. no distinction b/t specific and general intent
- 2. backward looking - retroactive orientation
- 3. severity of punishment determined by: (1)mental state; (2) harm done; (3) past acts
- 4. not concerned with consequences or usefulness of the punishment but instead of how blameworthy D is
- NOT TRYING TO MAKE OFFENDER BETTER!!! - ONLY WORRIED ABOUT GUILT
weaknesses of retribution
no workable way to determine just what punishment a criminal deserves...not always going to fit the crime (too harsh or not harsh enough)
definition of incapacitation
disabling or depriving the offender of the ability/choice to commit crime by taking away tools of the offense (i.e. - liberty, freedom of movement, license, etc)
theory of incapacitation
nothing else short of removal of offender will keep society safe
purpose of incapacitation
prevention of furture crimes by physically restraining D from offending again while confined
application of incapacitation - 2 strategies
- 1. collective - same sentence for same crime regardless of the circumstances/offender
- 2. selective - looks to indvl offender, potential for different sentences for the same crime
weaknesses of incapacitation
- 1. requires prediction of future
- 2. prison is best trade school in America
definition of deterrence
notion of reducing crime thru fear of punishment
2 types of deterrence
- 1. specific/special - use of punishment to frighten the person actually being punished from re-offending
- 2. general - makes an example of offender so that like minded ppl will be discouraged from committing the same act - objective lesson
theory of deterrence
future oriented focusing on the consequences of its imposition...what effect will the punishmet of this person have on both him and society as a whole?
affects choice rather than addressing conduct
application of deterrence
- 1. general and specific intent matter b/c can't prevent what not intended
- 2. does conviction lead to the desired deterrent effect?
- 3. indvl must understand that his conduct is wrong and must fear the consequences
weaknesses of deterrence
vast majority of those incarcerated are repeat offenders therefore deterrence not really effective b/c not concerned with consequences of their actions
definition of rehabilitation
process of seeking to improve criminal's outlook so that he can function in society w/o committing future crimes
purpose of rehabilitation
change the character of the offender rather than focusing on conduct
theory of rehabilitation
people are capable of change/rehab and they will change
incarceration/society is equipped to do rehab
directed at repeat offenders
application of rehabilitation
- 1. seriousness of crime
- 2. blameworthiness of criminal
- 3. characteristics of criminal...likely to be rehabilitated?
- 4. existing treatment methods
weaknesses of rehabilitation
- 1. can't change someone who doesn't want to change
- 2. requires both public support and funding that aren't always adequately provided
- 3. creates potential problems of fairness
Who is involved in making criminal law?
- 1. judicial
- 2. legislative
- 3. executive
- 4. jury
- 5. statutory interpretation (judicial)
definition of utilitarian theory
punishment is justified if and only if some net social gain is achieved
(i.e. - deterrence, incapacitation, rehab)
definition of retributivist theory
punishment is properly inflicted b/c, and only b/c, the person deserves it
(i.e. - retribution, denunication)
definition of mixed theory of punishment
punishment is justified if and only if it achieves a net social gain and is given to offenders who deserve it
Pros of judiciary making law
- 1. adaptable
- 2. clears up ambiguities in statutory language
- 3. retroactive application (case at hand)
- 4. quick
- 5. uninterested party
cons of judiciary making law
- 1. boundy by precedent
- 2. don't konw what goes on in the judge's chambers...accountability?
- 3. difficult to locate
- 4. no notice when applied retroactively
- 5. undemocratic - not elected
- 6. creates doubt when law constantly changing
what is the role of the judge in making criminal law?
either making or interpreting law when reading a statute and applying it to the facts of the case...depends on how the judge views the separation of powers
what role does legislature play in making law?
has the ultimate authority in the definition and creation of crimes subject only to the constitution
what is the Rule of Legality and to whom does it apply?
definition - no statute, no crime, no punishment even if society thinks conduct is wrong
notion of legislative supremacy
case made law v. rule of legality
must be a statute that incorporates CL into the Code; placement of this statute will determine if it applies to all areas or just particular area of law
NC - placement is such that applies to all law
pros of legislature making law
- 1. elected therefore in touch with society needs/wants
- 2. accountable
- 3. process is open to the public
- 4. ability to create broad sweeping laws
- 5. internal checks and balances
- 6. advance notice
- 7. robust debate and ability to thoroughly research
cons of legislature making law
- 1. potential for sloppying drafting b/c not required to be lawyers
- 2. special interest legislation
- 3. slow
- 4. inflexible/nonadaptable therefore must be amended
what role does executive play in making law?
enforcement of criminal laws enacted by legislature
what is executive clemency?
power to pardon offenders exercised by president or governor
nullifies application of criminal law in particular case
what is executive influence over legislature?
- 1. draft/submit proposed legislation
- 2. lobby for or against legislation
what is prosecutorial discretion?
to charge or not to charge nullifying statute or expanding category of offenses included under it
look to the utility of bring charge v. cost of prosecution
what is express/implied delegation?
officials/agency being delegated the power to create and define crimes by legislation (i.e. - FDA)
what are enabling statutes?
legislature enacts a statute and then gives power to executive to decide what it views is necessary and proper under the statute (implied delegation example)
what is jury nullification?
throwing out the law and doing what feel is right/better b/c feel that law got it wrong in this instance
why should jury nullification be allowed?
- 1. allows for flexibility in extreme circumstances such that don't have to do away with the law completely
- 2. society itself tolerates the behavior being condemned by law
pros of executive
- 1. elected
- 2. quick
- 3. accountable
- 4. robust debate and open to public
cons of executive
- 1. appointments
- 2. language so technical that public not really put on notice
- 3. abuse of discretion is possible
- 4. power ultimately in hands of one person
what is the major issue surrounding jury nullification?
should they be made aware of this power in the jury instructions?
what is statutory interpretation?
process of determining the meaning of legislative act
- unambiguous language - look no further than statute
- ambiguous language - look to intent of legislature by examining intrinsic, extrinsic, and policy based sources
what is the rule of lenity?
policy to construe a penal statute as favorably for the D as its language and the circumstances of its application may reasonably permit
what are the intrinsic sources used in statutory interpretation?
the materials are part of the official act - language of the statute, titles, punctuation, grammer, definitions
what are the extrinsic sources used in statutory interpretation?
outside the act but w/i the legislative process that created the act - legislative history
what are the policy based sources used in statutory interpretation?
separate from law and its process; considerations/sources based on societal and legal choices
i.e. - common law, constitution, etc
rule of lenity
what are the 3 approaches to statutory interpretation?
- 1. intentionalism
- 2. textualism
- 3. dynamic statutory interpretation
what is intentionalism?
focus on the text of the statute and extrinsic sources to find specific intent of legislature with regards to ambiguous language language and general intent
purposeism/overreaching goal of legislation
a think may be in the letter of the statute yet not in the statute b/c it isn't in its spirit nor the intentions of the makers
criticisms of intentionalism
- 1. static - unchanging with time
- 2. can't truly know what was intended
what is textualism?
focuses on the intrinsic sources, particularly the text, to discern the meaning of the language actually used
uses least amount of "additional sources" - dictionary ok
text should be construed reasonably to contain all that it fairly means
criticisms of textualism
unwilling to use any sort of legislative history
what is dynamic statutory interpretation?
focuses on what the enacting legislature would have wanted given the current situation
statutes should be interpreted in light of their present societal, political, and legal context
involves textual, historical, and evolutive prespectives - weight given to each depends on the circumstances
criticism of dynamic statutory interpretation
how far to go b/4 get something the legislature never intended?
what are the tools for construction?
- 1. language of statute
- 2. intent of legislature
- 3. common law
- 4. rule of legality
- 5. rule of lenity
- 6. jurisdictional (separation of power)
- 7. DP (notice and fairness)
what are the 2 constitutional issues surrounding specificity and clairty in statutory interpretation?
- 1. overbreadth - law attempts to prevent/prohibit behavior that is granted by the constitution
- 2. vagueness
- a) Notice - don't know what conduct is prohibited
- b) Discretion - doesn't provide standards/guidelines fro police in implementing the statute which could result in arbitrary and discriminatory enforcement
definition of actus reas
conduct element of the crime
crime requires a voluntary act
definition of act
some form of bodily movement
what is included under Actus Reas?
- 1. status
- 2. voluntariness
- 3. time framing
- 4. omission
- 5. possession
- 6. VL
Can person be punished for their status?
NO - can only punish person for his actions
can't be punished for being, must be punished for doing
status is not punishable but a condition resulting from that status is punishable (i.e. - public drunkeness)
definition of voluntariness
product of effort, determination, obligation, or compulsion
done by intention and not by accident
rationale for not punishing based on status alone?
addiction is equated to an illness and punishment violates 8th Amendment prohibiting cruel and unusual punishment
what makes an act voluntary?
actor made a conscious choice to act, even if coercion influenced the choice
can conduct be voluntary but not criminally voluntary?
yes due to circumstances surrounding the act; i.e. - duress
this is a question for the jury to decide - RPP
4 things MPC says are not voluntary
- 1. reflex/convulsion
- 2. sleepwalking or unconscious movement
- 3. conduct under hypnosis
- 4. bodily movement not a product of actor's effort or determination
must all acts be voluntary?
NO but conduct must include a voluntary act...time framing plays a part in determining where the line is drawn
what is time-framing/effect?
can expand the period in which the court can search for a voluntary act when the statute creates wiggle room b/c it doesn't define from when the conduct is to be measured
prosecution view of time-framing
want to make it as broad as possible
defense view on time-framing
what to make as narrow as possible
what is omission?
criminal liability for failure to act
must include a legal duty to act and then failure to do so...non-action alone is not sufficient
2 ways in which omission is utilized
- 1. stipulated omission - made an element of the crime
- 2. denial of legal duty - treat omission with a duty as the equivalent of an act
5 ways omission translates into manslaughter
- 1. duty by statute
- 2. duty by status - parent/child
- 3. duty by K - babysitter
- 4. duty by voluntary assumption - person drowing where told others not to worry b/c you would help and then don't
- 5. duty by creating the risk
is omission automatic or must it be included in the jury instructions?
must be instructed that for culpability must have been a legal duty and not just a moral obligation to act and what that legal duty was under the circumstances
definition of actual possession
something on someone's person, in their clothing, or withing their physical custody (i.e. - blackberry in pocket)
definition of constructive possession
actual possession is lacking but the person nevertheless exercises some sort of control/dominion over the item (i.e. - jacket in locker)
must D be aware of possession?
YES - must know you have it in order to possess it
is possession an act or omission?
neither yet still punishable under law b/c allows police to arrest/convict an indvl b4 he can use the prescribed object
How does VL apply in criminal law?
This is an exception and not the rule, must be clearly expressed in the statute and is not recognized everywhere
What are the issues created with VL in crim law?
balancing test - public interest protected v. intrusion of personal liberties protected by DP
How can punishment tell if VL attaches?
- Yes - fine, loss of license
- No - incarceration
What is required when dealing with mens rea?
concurrence and causation
3 aspects of mental state cuase problems
- 1. mental state is question of degree
- - CL was no variety; either had it or didn't
- - ML recognizes range of mental states that correlate with diff degrees of blameworthiness
- 2. Crimes/D can possess more than one mental state
- 3. Mental state is relational
what is "purpose" under MPC?
- conscious object
- "result" oriented
- specific to D
- motive irrelevant
what is "knowledge" under MPC?
- aware that is practically certain; aware such circumstances exist
- "conduct" oriented
- specific to D
what is "reckless" under MPC?
- conscious disregard
- substantial and unjustifiable risk
- "attendant circumstances"
test - Did D disregard risk and was that disregard a gross deviation from RPP in D situation?
issue - justifiability
what is "negligence" under MPC?
- should be aware
- substantial and unjustifiable risk
Test - should D have been aware and was his failure to perceive that risk a gross deviation from RPP awareness?
how is SL used in mens res?
this is the exception and is attached to things that are bad b/c they are prohibited (i.e. - speeding)
- generally seen with public welfare crimes
- deterrence theory
MPC - must be clearl stated in statute
what are the 7 La Fave Factors for SL?
- 1. leg history and context
- 2. guidance from other statutes
- 3. severity of punishment
- 4. seriousness of harm protected against
- 5. D opportunity to ascertain true facts
- 6. difficulty of proving mental state
- 7. # prosecutions expected under the statute
what does causation involve?
- 1. "But for" Cause - actual cause
- 2. Proximate Cause - legal cause
- - foreseeability
- - fairness
definition of concurrence
both mental state and conduct at the same instant
what is the "year and a day rule"?
death must occur w/i this time frame from the homicidal act to prosecute D for murder
not widely followed; Not in NC
what is the doctrine of transferred intent?
if D intends to bring about a certain sort of harm and then does bring about that general type of harm, the fact that the victim is diff than intended will not make a difference
doesn't apply to crimes of attempt....must actually kill someone
3 non-mental elements required in all homicides
- 1. some form of conduct
- 2. a resulting death
- 3. causative link b/t conduct and death
What is the CL approach to homicide?
- murder = malice aforethought
- manslaughter = no malice aforethought
what are the categories of CL murder?
- 1. intent to kill
- 2. intent to do serious bodily harm
- 3. extreme recklessness
- 4. felony murder
What is the ML approach to homicide?
- first degree - intentional (malice with W, P, & D); enumerated felony murder
- second degree - intentional (malice w/o P&D); extreme recklessness; non-enumerated felony murder
- voluntary manslaughter - intentional + provocation
- involuntary manslaughter - unintentional (criminal negligence); misdemeanor manslaughter
definition of premeditate
think about beforehand; quantity
definition of deliberate
measure and evaluate the major facets of a choice/problem; quality of thought process
2 approaches to P&D
- 1. means something more than purpose to kill - time for "second look"
- 2. essentially means intent to kill - spur of the moment killing will do; 1 second enough
how is premeditation inferred from method of killing?
- 1. type of weapon
- 2. manner of use
- 3. nature, extent, location of wounds
- 4. conduct of D
how to analyze P&D
- 1. Did D think about beforehand?
- 2. Did D measure and evaluate the major facets of a choice/problem?
- 3. Was the D thought process undisturbed by hot blood...kill in cold blood?
- 4. Did the D weigh/reason for a period of time, however short, after which the intent to kill was formed?
definition of voluntary manslaughter
intentional killing committed in the heat of passion after adequate provocation
generally are words sufficient legal provocation?
No, not w/o more
Elements of Provocation Doctrine
- 1. legally adequate provocation
- 2. cause state of intense passion
- - sudden, one where RPP would lose control
- 3. without time to cool off
- - both subjective and objective
mental states involved in voluntary manslaughter
- 1. recklessly - primary mental state
- 2. purpose, knowledge, or reckless+ but are done under influence of EMED for which there is a reasonable explanation or excuse
what is the Last Straw Theory?
resentment/pent up rage from prior insults or humiliating events come to a head making the final event the last straw before the attack even though that final event is insignificant in of itself (minority view)
definition of involuntary manslaughter
- - killing committed with criminal or gross negligence
- - killing committed during crime that isn't a felony (misdemeanor manslaughter)
- - negligent homicide - hinges on what actor's actual situation is and how RPP would have acted in that situation
definition of felony murder
any killing committed caused during commission or attempt to commit a felony
6 limitations on felony murder
- 1. D guilty of underlying felony
- 2. felony inherently dangerous
- 3. felony separate from the killing itself; independent felonious purpose
- 4. killing during or in immediate flight from the felony
- 5. death is foreseeable
- 6. victim isn't a co-felon
definition of agency rule
the homicide must be committed by a felon, his agent, or someone under his control
majority and NC view
what is the Proactive Act Doctrine?
- allow felony murder even when the victim is a co-felon if the prosecution can prove:
- (1) felon harbored malice aforethought
- (2) killing was attributable to the act
- (3) was one of the enumerated felonies (to get to 1st degree)
what is the substantial factor test in felony murder?
some jurisdictions allow felony murder even if hte actual killing was perpetrated by a witness/intended victim and the co-felon was a substantial factor in causing that death
how does felony murder incorporate the SL approach?
- 1. as long as the homicide is the direct causal result of the felony the rule applies whether or not the death was a natural or probable cause of the felony
- 2. presumes extreme recklessness
- 3. no intentional act is necessary
- 4. murder regardless of whether it was willful, deliberate, and premeditate or merely accidental or unintentional, and unplanned
what is the MPC approach to homicide?
- 1. murder
- 2. manslaughter
- 3. criminally negligent homicide
what are the 3 forms of MPC murder?
- 1. intent to kill
- 2. extreme recklessness
- 3. felony murder
what are the four factors in extreme recklessness under MPC murder?
- 1. nature/magnitude of the risk
- 2. D awareness of hte risk
- 3. justifiability of the risk
- 4. degree of deviation from reasonable behavior
- OMG approach!!!
- Extreme indifference to value of human life
enumerated felonies in MPC approach?
- 1. burglarly
- 2. robbery
- 3. arson
- 4. kidnapping
- 5. escape
- 6. sexual assault
- 7. rape
mental states involved in MPC manslaughter
focus on issue of risk - ordinary recklessness
- 1. intentional (provocation)
- - extreme mental or emotional distress (P, K, R+)
- 2. reckless killing
- - killing where D is aware of and consciously disregards the substantial and unjustifiable risk of death
how to analyze MPC manslaughter
- 1. what was the probability that the death would occur?
- 2. was there a legitimate reason for taking the risk?
- 3. was the D aware of the risk?
criminally negligent homicide in MPC
- majority - gross negligence and gross deviation
- minority - ordinary negligence sufficient
3 levels of criminal liability
- 1. did a violation of a criminal statute occur? (facial criminality)
- 2. if so, was that violation unjustified? (legality)
- 3. If so, was the person committing the violation excused? (responsibility)
what are the 2 categories of defenses to criminal liability?
- 1. justification
- 2. excuse
what are the justification defenses
- 1. mistake of fact
- 2. mistake of law
- 3. self defense
- 4. defense of others
- 5. defense of property
- 6. necessity
what are the excuse defenses?
- 1. intoxication
- 2. insanity
- 3. diminished capacity
- 4. duress
- 5. affirmative defenses
elements of self defense (ML)
- 1. honest and reasonable fear (RPP)
- 2. imminent and unlawful threat (not future)
- 3. proportional response to threat
- 4. D not initial aggressor unless:
- - victim used deadly force against non-deadly force
- - initial aggressor withdrawn
elements of self defense (MPC)
- 1. actor believes that such force is necessary
- - subjective; if D is negligent or reckless than D may be convicted of reckless or negligent homicide
- 2. immediately nec to protect himself (deadly force OK)
- 3. not initial aggressor
- 4. retreat unless at home or work
is there a duty to retreat in self defense (ML)?
- majority - no
- minority - yes but castle exception
defense of others
- majority - may use force to protect someone if that person would be justified in using it to protect himself
- - if D subjectively believes victim would be justified then excused
- - mistake is OK
- minority - D "steps into the shoes" of the person and if he had no right to defend himself then D had no right to defend him
- - mistake no excuse
defense of property
deadly force not permitted
exceptions - home, prevention of felony
elements of necessity
- 1. harm avoided > harm committed
- 2. no alternative
- 3. harm imminent
- 4. not D fault
definition of justification
concedes that the act in the abstract is wrong but D was right and justified in what he did
definition of excuse
concedes that violation is unjustified but maintains that the act is right; seeking to exempt this particular D from responsibility
- - D threatened with harm to himself or another and threat compelled commission of crime
- - reasonable belief that had to commit crime to avoid harm
when is duress not an available excuse
- 1. charged with M or m
- 2. threats against property alone
- 3. D created situation
3 tests for insanity
- 1. M'Naghten
- 2. Irresistible Impulse
- 3. MPC Substantial Capacity
elements of M'Naghten test
majority and NC view
- 1. D suffered mental disease causing a defect; AND
- 2. either D didn't understand the nature/quality of his act; OR
- 3. D didn't know that his act was wrong
elements of Irresistible Impulse Test
- 1. D suffered mental disease causing defect; AND
- 2. either D didn't understand nature/quality of his act; OR
- 3. D didn't know act was wrong; AND
- 4. b/c of mental illness, D was unable to control his actions or to conform his conduct to the law (knew it was wrong but couldn't stop/help himself)
elements of MPC Substantial Capacity Test
- 1. D suffers from mental disease/defect and as a result lacked substantial capacity to either:
- (a) appreciate the criminality of his conduct; OR
- (b) conform his conduct to the requirements of the law
what is diminished capacity?
- - have some issues but not full blown insane
- - culpability may be lowered b/c D lacked required mental state
- - limited to specific intent crimes (majority and NC)
general rule for complicity/accomplice liability
person is an accomplice to a crime if hte person intentionally assists another person in commission of crime
what does being an accomplice mean?
- - not separate crime...not crime of aiding and abetting
- - will be convicted of the same crime the primary offender is charged with
conviction of primary offender not required
silence isn't enough...requires action
definition of mistake of fact
claim of ignorance/mistake regarding factual matter relevant to the crime
what are mistakes of fact evidence of?
what is the burden of proof for mistake of fact?
beyond reasonable doubt
is mistake of fact a defense under MPC?
yes if it negates the mens rea required to establish a material element of the offense
no for SL offenses
does the mistake have to be reasonable?
CL - yes for general intent crimes
MPC - no
what are the general rules regarding mistake of fact at CL?
- specific intent - not guilty if the mistake negates the specific mens rea even if the mistake is unreasonable:
- - the definition of crime expressly includes an intent/purpose to do some future act, or to achieve some further consequence beyond the conduct that constitutes actus reus; OR
- - crime that provides that the actor be aware of a stautory attendant circumstance
- not guilty if the mistake is a reasonable one with 2 exceptions: (1) MWD; (2) LWD
definition of Moral Wrong Doctrine
person can make a reasonable mistake regarding attendant circumstance and yet be culpable
view situation from the actor's reasonable belief and if still morally wrong then actor's mens rea is not negated
definition of Legal Wrong Doctrine
person can make reasonable mistake of fact and yet still be guilty of a different crime if the situation were as he believed
typically less serious offense than one charged for
what are the general rules regarding mistake of fact under MPC?
applies to all offenses in the same manner with no distinction b/t general and specific intent
general rule - not guilty if mistake negates mens rea EXCEPT still guilty of lesser included offense if MPC's version of LWD applies
what happens when mistake of fact negates the mens rea for a charged crime but doesn't negate the mens rea of a lesser included offense?
will drop the charge/penalty down a notch due to the offender's ignorance (LWD)
definition of Mistake of Law
were unaware/ignorant of the law for which they are accused of violating
general rule of MoL
there is no element of mens rea that is capable of being negated by D's mistake or ignorance of the law (SL)
is MoL a defense?
- NO unless:
- (1) statute/code expressly makes such knowledge an element of the crime;
- (2) reliance on official interpretation (not always sufficient and must come from someone involved in making/shaping the law)
- (3) collateral fact
what are the constitutional issues with MoL?
legislature must publish or at least make statute's existence known to public b4 individuals can be charged/convicted of its violation
DP requires notice!!!!
what are the specific intent crimes?
- 1. solicitation
- 2. conspiracy
- 3. attempt
- 4. 1st degree murder
- 5. larceny
- 6. embezzlement
- 7. false pretenses
- 8. robbery
- 9. burglary
- 10. forgery
what crimes require malice?
what are the general intent crimes?
virtually everything else (i.e. - rape, battery)
what are SL crimes?
crimes with no mens rea requirement (i.e - public welfare offenses)
What would you like to do?
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