Justifications for Punishment Retributivism -- just deserts What causes criminal to deserve punishment? Violation of social contract?

t? Violation of Divine/Natural Law? Need to correct criminals selfelevation? Need to express hatred of criminal?
2

Justifications for Punishment

Utilitarianism punishment is justified if, and only if, it increases the overall level of social happiness or pleasure Deterrence Incapacitation/risk-management rehabilitation
3

The Pulverizer

The Pulverizer instantly and painlessly dematerializes murderers. To maximize its deterrent effect, its inventors have proposed using it for televised executions at the halftime of the Super Bowl. Or, to be more forthcoming, everyone believes the Pulverizer dematerializes murderers. In reality, it transports them to Candy Mountain where they enjoy better lives than they have ever known. The inventors of the Pulverizer realized that, compared to actual executions, simulated executions would be Pareto efficient. A murderer's pretended execution coupled with his banishment to a lovely mountain in a galaxy far, far away would make at least one person (the murderer) better off and no one worse off.

Cause-in-fact But-for cause necessary, but not necessarily sufficient. (i.e. two non-mortal knife wounds which together result in death) Acceleration Concurrent Sufficient Causes -- i.e. substantial factor.
. 2

MPC 2.03(1) (1) Conduct is the cause of a result when: (a) it is an antecedent but for which the result in question would not have occurred; and (b) the relationship between the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense. Proximate Cause -- factors 1. De minimis contribution to social harm. Proximate Cause -- factors 2. Intended Consequences doctrine. Proximate Cause -- factors 3. Omissions do not relieve of liability. Proximate Cause -- factors 4. Foreseeability of intervening cause. a. Coincidental: relieves of liability unless b. Responsive: does not relieve of liability unless truly abnormal or bizarre. Proximate Cause -- factors 5. Apparent-Safety Doctrine applies where defendants active force has come to rest in a position of apparent

. 3

. 4

. 5

. 6

. 7

foreseeable.
1

safety.

4. Foreseeability of intervening cause. a. Coincidental: relieves of liability unless foreseeable. b. Responsive: does not relieve of liability unless truly abnormal or bizarre.
9/26/11
7

Proximate Cause -- factors

5. Apparent-Safety Doctrine applies where defendants active force has come to rest in a position of apparent safety. Focus on victims failure to do something easily within his grasp that would have prevented harm. Note: Tort concepts of contributory negligence and comparative negligence do not apply.
8

Proximate Cause -- factors 6. Free, Deliberate, Informed Human Intervention.

9

MPC 2.03(2)

(2) 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: (a) the actual result differs from that designed or contemplated, as the case may be, only in the respect that 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; or (b) 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.
10

MPC 2.03(3)-(4)

(3) When recklessly or negligently causing a particular result is an element of an offense, the element is not established if the
2

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: (b) 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.

9/26/11
10

MPC 2.03(3)-(4)

(3) 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: (a) the actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or (b) 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. (4) 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 probable consequence of the actor's conduct.

MPC 1.13 General Definitions. In this Code, unless a different meaning plainly is required: ... (2) "act" or "action" means a bodily movement whether voluntary or involuntary; (3) "voluntary" has the meaning specified in Section 2.01; (4) "omission" means a failure to act;
. 2

Model Penal Code 2.01 (1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable. Model Penal Code 2.01 (2) The following are not voluntary acts within the meaning of this Section: (a) a reflex or convulsion; (b) a bodily movement during unconsciousness or sleep; (c) conduct during hypnosis or resulting from hypnotic suggestion; (d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual. Liability for omissions 1. Statutory duty to rescue / duty to report

. 3

. 4

2. Status. Examples: parent/child, spouse/spouse,

master/
1

servant.

3. Contractual duty. Examples: doctor/patient, nursing home/ suggestion; (d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.
9/26/11

Liability for omissions 1. Statutory duty to rescue / duty to report

4

2. Status. Examples: parent/child, spouse/spouse, master/ servant. 3. Contractual duty. Examples: doctor/patient, nursing home/ resident, nanny/child. 4. Assumption of care / seclusion of victim. 5. Causation of Risk. Example: motorist non-negligently strikes person in the street and injures them.
5

Model Penal Code 2.01 (3) Liability for the commission of an offense may not be based

on an omission unaccompanied by action unless: (a) the omission is expressly made sufficient by the law defining the offense; or (b) a duty to perform the omitted act is otherwise imposed by law. (4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession. Principle of Legality Nullem crimen sine lege; Nulla poena sine lege Embodied in U.S. Constitution Prohibition of Ex Post Facto laws.
2

Prohibition of Bills of Attainder. Due Process clause of 5th and 14th Amendments.
3

Commonwealth v. Mochan

Common law permits prosecution of any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer, as in the case of acts which injuriously affect public morality, or obstruct, or pervert public justice.
4
.

Principles Legislature, not court, should define which injuries to the public are criminal.

Statute should be sufficiently specific so as to give fair warning to defendant. Statute should not be so vague as to give rise to arbitrary or discriminatory enforcement. Rule of lenity Where statute susceptible of two interpretations, adopt the more lenient. 5 More Principles of Construction Language of statute should be interpreted according to its fair import. Statute should be construed with regard to the evil which it is intended to suppress. Look at common law meaning, legislative history and prior judicial interpretations to limit application. Dont invalidate for overbreadth when limiting construction available.

Statute should be construed with regard to the evil which it is intended to suppress.
9/26/11

Look at common law meaning, legislative history and prior judicial interpretations to limit application. Dont invalidate for overbreadth when limiting construction available.

9/26/11

Mens Rea Actus non facit reum nisi mens sit rea. An act does not create guilt unless the mind be guilty.
. 2

Mens Rea Culpability v. Elemental culpability definition: guilty mind, vicious will, immorality of motive, morally culpable state of mind. elemental definition: the mental state the defendant must have with respect to the social harm elements set out in the definition of the offense.

. 3

Model Penal Code 2.02 (1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense. Model Penal Code 2.02 (2) Kinds of Culpability Defined. (a) Purposely. A person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

. 4

. 5

Model Penal Code 2.02 (b) Knowingly.

an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.
5

Model Penal Code 2.02 (b) Knowingly.

9/26/11

A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
. 6

Model Penal Code 2.02 (c) Recklessly. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material

element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.
. 7

Model Penal Code 2.02 d) Negligently. A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances

conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.
7

Model Penal Code 2.02 d) Negligently.

9/26/11

A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element

exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.
. 8

Model Penal Code 2.02 (3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto. (4) Prescribed Culpability Requirement Applies to All Material Elements. When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears. (5) Substitutes for Negligence, Recklessness and Knowledge. When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely. Model Penal Code 2.02 (6) Requirement of Purpose Satisfied if Purpose Is Conditional. When a

. 9

particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense.
3

(7) Requirement of Knowledge Satisfied by Knowledge of High

recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely.
. 9

Model Penal Code 2.02 (6) Requirement of Purpose Satisfied if Purpose Is Conditional. When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense. (7) Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist. (8) Requirement of Wilfulness Satisfied by Acting Knowingly. A requirement that an

offense be committed wilfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears.
. 10

Model Penal Code 2.02 (9) Culpability as to Illegality of Conduct. Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense, unless the definition of the offense or the Code so provides. (10) Culpability as Determinant of Grade of Offense. When the grade or degree of an offense depends on whether the offense is committed purposely, knowingly, recklessly or negligently, its grade or degree shall be the lowest for which the determinative kind of culpability is established with respect to any material element of the offense. Model Penal Code 2.03 (2) 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: (a) the actual result differs from that designed or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or

. 11

9/26/11 4

negligently, its grade or degree shall be the lowest for which the determinative kind of culpability is established with respect to any material element of the offense.
. 11

Model Penal Code 2.03 (2) 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: (a) the actual result differs from that designed or contemplated, as the case may be, only in the respect that 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; MPC 2.02 hypos #1 Stinneford sees his worst enemy (WE) walking down the street, and decides that this is time to end it. He pulls out an arrow, douses it in gasoline, lights it on fire, and shoots it at WEs heart. What is Stinnefords mens rea regarding killing WE? a. Purposeful b. Knowing c. Reckless d. Negligent e. None of the above

. 12

. . . . .

. 13

MPC 2.02 hypos #2 Same facts as before, except WE is standing in front of a big bulls-eye target, and Stinneford is engaging in target practice. Stinneford shoots the flaming arrow, hoping that it will pass harmlessly through the chest of WE and hit the target. Stinnefords mens rea regarding WE? a. Purposeful b. Knowing c. Reckless d. Negligent e. None of the above MPC 2.02 hypos #3 Same facts as before, except that Stinneford believes that his flaming arrow is magic, and that it will steer itself around WE and hit target. Stinnefords mens rea regarding killing WE?

. . . . . . 14

9/26/11 5

a. Purposeful

b. Knowing c. Reckless d. Negligent e. None of the

above
. 14

MPC 2.02 hypos #3 Same facts as before, except that Stinneford believes that his flaming arrow is magic, and that it will steer itself around WE and hit target. Stinnefords mens rea regarding killing WE? a. Purposeful b. Knowing c. Reckless d. Negligent e. None of the above MPC 2.02 hypos #4

. . . . . . 15

9/26/11

Same facts as hypo #1, except that Human Shield (HS) is standing between Stinneford and WE. Stinneford shoots the arrow, hoping that it will pass harmlessly through the chest of HS and kill WE. Stinnefords mens rea with respect to HS?
. . . . .

a. Purposeful b. Knowing c. Reckless d. Negligent e. None of the above

. 16

MPC 2.02 hypos #5 Same facts as above, except that Stinnefords flaming arrow misses both WE and HS and hits the wooden building behind them, which burns down. Can Stinneford be convicted of arson, which is defined as purposely or knowingly burning down a building? a. Yes b. No MPC 2.02 hypos #6 Same facts as #1, except that when the arrow hits WE, it gravely injures but does not kill him. Can Stinneford be charged with aggravated battery, defined as intentionally causing grave bodily injury? MPC 2.05 When Culpability Requirements Are Inapplicable to Violations and to Offenses Defined by Other Statutes; Effect of Absolute Liability in Reducing Grade of Offense to Violation.

. . . 17

. 18

a. Yes b. No
. 17

MPC 2.02 hypos #6 Same facts as #1, except that when the arrow hits WE, it gravely injures but does not kill him. Can Stinneford be charged with aggravated battery, defined as intentionally causing grave bodily injury?

. 18

MPC 2.05 When Culpability Requirements Are Inapplicable to Violations and to Offenses Defined by Other Statutes; Effect of Absolute Liability in Reducing Grade of Offense to Violation.

9/26/11

(1) The requirements of culpability prescribed by Sections 2.01 and 2.02 do not apply to: (a) offenses that constitute violations, unless the requirement involved is included in the definition of the offense or the Court determines that its application is consistent with effective enforcement of the law defining the offense; or (b) offenses defined by statutes other than the Code, insofar as a legislative purpose to impose absolute liability for such offenses or with respect to any material element thereof plainly appears.
19

MPC 2.05 (2) Notwithstanding any other provision of existing law and unless a subsequent statute otherwise provides: (a) when absolute liability is imposed with respect to any material element of an offense defined by a statute other than the Code and a conviction is based upon such liability, the offense constitutes a violation; and (b) although absolute liability is imposed by law with respect to one or more of the material elements of an offense defined by a statute other than the Code, the culpable commission of the offense may be charged and proved, in which event negligence with respect to such elements constitutes sufficient culpability and the classification of the offense and the sentence that may be imposed therefor upon conviction are determined by Section 1.04 and Article 6 of the Code.
7

(a) when absolute liability is imposed with respect to any material element of an offense defined by a statute other than the Code and a conviction is based upon such liability, the offense constitutes a violation; and (b) although absolute liability is imposed by law with respect to one or more of the material elements of an offense defined by a statute other than the Code, the culpable commission of the offense may be charged and proved, in which event negligence with respect to such elements constitutes sufficient culpability and the classification of the offense and the sentence that may be imposed therefor upon conviction are determined by Section 1.04 and Article 6 of the Code.
. 20

MPC 1.04(5) (5) An offense defined by this Code or by any other statute of this State constitutes a violation if it is so designated in this Code or in the law defining the offense or if no other sentence than a fine, or fine and forfeiture or other civil penalty is authorized upon conviction or if it is defined by a statute other than this Code that now provides that the offense shall not constitute a crime. A violation does not constitute a crime and conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense. Specific intent crime Larceny: trespassory taking and carrying away of the personal property of another with the intent to steal the property.

. 21

. 22

General intent crime Common law definition of rape: sexual intercourse by a male with a female not his wife, without her consent. Hypo #1 Stinneford sees his worst enemy 50 yards away. S mistakenly believes that WE is wearing a bullet-proof vest, and that S can therefore shoot WE without causing WE any harm other than a little scare. S shoots at WE (who is not wearing a vest) and hits him in the head, killing him instantly. Under the MODEL PENAL CODE, of what crime can S be convicted? A. Murder (i.e. purposeful or knowing homicide) B. Reckless Homicide C. Negligent Homicide D. Assault E. None of the above.

. 23

9/26/11 8

believes that WE is wearing a bullet-proof vest, and that S can therefore shoot WE without causing WE any harm other than a little scare. S shoots at WE (who is not wearing a vest) and hits him in the head, killing him instantly. Under the MODEL PENAL CODE, of what crime can S be convicted? A. Murder (i.e. purposeful or knowing homicide) B. Reckless Homicide C. Negligent Homicide D. Assault E. None of the above.
. 24

Hypo #2 Same facts as above, except that we are

in a common law state that applies the legal wrong doctrine. Of what crime can S be convicted? A. Murder (i.e. purposeful or knowing homicide) B. Reckless Homicide C. Negligent Homicide D. Assault E. None of the above.
. 25

Hypo # 3 Stinneford thinks it would be really cool to own a flamethrower, since theyre not only useful for scaring worst enemies, but can also help start campfires, barbecues, etc. He has never read (or even heard of) the federal Flamethrower Registration Act, which makes it a felony to possess an unregistered flamethrower, and so he doesnt register the flamethrower. Can S be convicted of violating the act? A. No, because he lacks mens rea. B. Yes, because this is a public welfare statute. C. Yes, because Stinneford should have been on notice. Hypo # 4 Same facts as above, except that the statute makes it a crime to willfully possess an unregistered flamethrower. Can Stinneford be convicted? A. No, because he lacks mens rea. B. Yes, because this is a public welfare statute. C. Yes, because Stinneford should have been on notice.

. 26

9/26/11 9

Review relationships between mens rea and actus reus

27

B. Yes, because this is a public welfare statute. C. Yes, because Stinneford should have been on notice.
. 26

Hypo # 4 Same facts as above, except that the statute makes it a crime to willfully possess an unregistered flamethrower. Can Stinneford be convicted? A. No, because he lacks mens rea. B. Yes, because this is a public welfare statute. C. Yes, because Stinneford should have been on notice. Review relationships between mens rea and actus reus 1. Strict liability statutes: No mens rea required. Public welfare Statutory rape 2. Statutes requiring mens rea: mens rea must relate to conduct and/or harm and/or attendant circumstances. MPC presumption that mens rea applies to all three. Presumption can be overcome through statutory construction. 3. Specific intent statutes. Require additional intent: - to commit some future act; or - special purpose or motive for committing actus reus; or - actual knowledge of some attendant circumstance; or - purpose to violate some known legal duty (willful under federal law) MISTAKE OF FACT Common Law If specific intent crime: mistake that negates the specific intent element exculpates defendant. No reasonableness requirement.

. 27

9/26/11
28

If general intent crime: mistake must be reasonable in order to exculpate. If your mistake is unreasonable, you are morally culpable and can be punished. Moral wrong doctrine: even a reasonable mistake will not exculpate if the conduct you intended to commit is immoral.
10

Legal wrong doctrine: reasonable mistake will not If specific intent crime: mistake that negates the specific intent element exculpates defendant. No reasonableness requirement.
9/26/11

If general intent crime: mistake must be reasonable in order to exculpate. If your mistake is unreasonable, you are morally culpable and can be punished. Moral wrong doctrine: even a reasonable mistake will not exculpate if the conduct you intended to commit is immoral. Legal wrong doctrine: reasonable mistake will not exculpate if intended conduct constitutes a crime.
. 29

Mistake of Law Common Law If general intent crime, mistake of law will not excuse. If specific intent crime, mistake of law that negates specific intent will excuse. Statutory construction issue: Where crime is malum prohibitum and involves innocent conduct, court may interpret statute as

requiring sufficient intent to make conduct culpable. May make room for mistake of law defense. Estoppel: See MPC 2.04(3)(b) (applicable in MPC and common law jurisdictions). Fair notice: See Lambert and MPC 2.04(3)(a).
. 30

Model Penal Code 2.04 (1) Ignorance or mistake as to a matter of fact or law is a defense if: (a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or (b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense.

(2) Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if 11 the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade (a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or (b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense.
9/26/11