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Criminal Law, Kaplan, 5th Edition


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criminal charge does two things...
1. identifies the criminal violation, referring to the statutory provision violated

2. alleges facts on the basis of which the prosecutor believes the criminal violation occured
an act cannot constitute a crime unless...
it violates a criminal statute
elements of a criminal offense (def)
the facts that must be alleged in order to charge a crime
criminal statutes (gen notes)
-all 50 states and the fed govt have different criminal statutes

-because criminal statutes are often vague or ambiguous, courts often have broad discretion in interpreting them
Model Penal Code - basic analytical structure of offenses (5)
1. offense commited when actor has satisfied all elements contained in the definition of the defense

2. objective elements of an offense may include CONDUCT of the actor, CIRCUMSTANCES under which it takes place, and the RESULTS stemming from it

3. Every offense must contain at least one objective element (act requirement)

4. The mental/culpable elements of an offense may be purpose, knowledge, recklessness, negligence, or lack f culpability (negligence and strict liability should be avoided)

5. every objective element must have a corresponding culpability element
burden of proof
the Due Process Clause protects the accused against conviction except upon proof beyond reasonable doubt of every fact neccessary to constitute the crime charged
crime in the US
-more violent crime and much more punishment than any other prosperous democracy

-recently our violent crime rates have dropped, although incarceration rates have gone up

-1/4 prisoners in for drug offenses
how theories of punishment affect legal decision making (3 ways)
1. they influence the decisions of legislators in defining offenses, proscribing penalties, and allocating resources for police/prisons/etc.

2. they influence judges in interpreting and applyinh criminal statutes

3. they influence judges in sentencing offenders
two major justifications for punishment... (and brief defs)
1. Retributive view - punishment is justified on the grounds that wrongdoing merits punishment

2. Utilitarian view - punishment only justifiable by reference to the probable consequences of maintaining it as one of the devices of social order
evolution of american penal policy
-historically, our criminal justice system based on utilitarianism

-starting in the 70's, retribution gained more influence as punishmnet apparently failed to prevent crime (according to some)
1. specific deterance

2. general deterance
1. detering those convicted from commiting future crimes

2. detering others who are aware of the punishment from commiting crimes
MPC 1.02 - General purposes of the provisions governing the definition of offenses are: (5)
1. to prevent conduct that unjustifiably inflicts harm to individual or public interests

2. to subject to public control persons disposed to commit crimes

3. to safeguard conduct that is without fault from condemnation as criminal

4. to give fair warning as to the nature f offenses

5. to differentiate between serious and minor offenses
MPC 1.12(1) - burden of proof
no person may be convicted of an offense unless each element of such offense is proven beyoond a reasonable doubt
Utilitarian limits on punishment (4)

***JEREMY BENTHAM, The Theory of Legislation
1. Punishment misapplied - no real offence committed; evil compensated for by an attendant good (ex. self defense)

2. Ineffective punishments - those directed against individuals who could not know the law or who have acted w/out intention (ex. children, dunces)

3. Superfluous punishments - where the same end may be achieved by more mild means

4. Punishment too expensive - if the evil of the punishment exceeds the evil of the defense
Rules of Deterrence (4)

***JEREMY BENTHAM, The Theory of Legislation
1. The evil of the punishment must be made to exceed the advantage of the offense

2. The more deficient in certainty the punishment is, the severer it should be (and the converse)

3. When two offenses are in conjuncton, the greater offense ought to be subject to severer punishment, in order that the delinquent may have a motive to stop at the lesser

4. The greater an offense is, the greater reason there is to hazard a severe punishment for the chance of preventing it
***JAMES WILSON, Thinking About Crime
-the socially imposed consequences of committing a crime, unlike the market consequences of shopping around for the best price, are characterized by delay, uncertainty, and ignorance

-in addition, a large fraction of crime is committed by persons who are so impulsive, irrational, or abnormal that, even in the absence of these things, we would still have lots of crime
certainty vs. severity of punishment
-studies consistantly have found that increases in the certainty of punishment have a greater deterrent effect than increases in the severity of the punishment
Retribution as a limit on punishment

***HJ MCCLOSKEY, A Non-Utlitarian Approach to Punishment
problem with utilitarianism: if greatest good for society as a whole is the foundation of the morality and justice of punishment, then there can be no guarentee that some injustices may not be dicteted by it (ex. framing an inocent man widely believed to be guilty)
***JEFFRIE MURPHY, Marxism and Retribution
-80% of the offenders handled by the correctiona system are members of the lowest 15% income level

-retributive theory presupposes a "gentlemen's club" picture of the relationship b/w man and society

-a man knows he deserves punishment because he sees that the rules benefit everyone, and that he would have selected them himself - DOESN'T apply to the poor
The expressive argument

***JOEL FEINBERG, Doing and Deserving

Punishment expresses...(3)
1. authoratativ disapproval
2. vindication of the law
3. absolution of the accuser
***JEAN HAMPTON, Punishment as a defeat
-retributive punishment is the defeat of the wrongdoer at the hands of the victim

-i have equal value to my assailant - this must be made manifest after i am victimized
***EDWARD RUBIN, The Inevitability of Rehabilitation
-penitentary conceived as a means of rehabikitation; vocational and academic training came to replace remorse and discipline as the principle instrument for rehabilitation

-the affirmative desire to reform the criminal provided the essential argument for developing such an expensive, administratively demanding means of punishment
***FRANCIS ALLEN, The Rehabilitative Ideal
-proposals of indeterminate sentences, a rehabilitative ideal, has unmistakenly led to longer periods of imprisonment

-in practice, rehab ideal essentially incapacitative rather than therapeutic
***MICHAEL TONRY, Malign Neglect
-high levels of drug use and high levels of offending are strongly associated

-the best predictor of successful treatment is time intreatment, even when coerced by legal compulsion
Incapacitation - brief def
taking away the power to do injury; it is much easier to obtai this end than to reform the offender
***JAMES WILSON, Thinking About Crime

3 conditions to be met for incapacitation to work:
-incapacitation works by definition

1. some offenders must be repeaters (true)

2. removed offendersmust not immediately be replaced by new recruits (plausible)

3. prison must not sufficiently increase post-release criminal activity (maybe)
selective incapacitation of "high risk" offenders
-some advocate that this is the most effiicient use of resources

-but many argue that so-called predicters are not really that accurate
***MARKUS DUBBER, Recidivist Statutes
-the nature of the crime of conviction and prior criminal record are poor indicators of recidivism

-thus habitual offender laws can lead to unjustified long incarcerations
prison violence
-the conclusion that incarecertion automatically incapacitates must be premised on one of two assumptions:

1. crime does not occur in prison (wrong!)

2. or prison crime simply does not count

-segregates prisoners (many blacks), implying their welfare does not count as social welfare
Theory of restorative (or community-oriented) justice

main characteristics, contrasted w/ conventional ones (4)
1. Focus on problem solving, on the future / focus on establishing blame, on the past

2. focus on te repair of social injury / one social injury is replaced by another

3. accountability defined as understanding the impact of their criminal acts / accountability defined as taking punishment

4. offense is understood in whole context (moral, social, economic) / offense defined purely in legal terms
Examples of restorative justice approaches (4)
1. victim-offender mediation

2. family conferencing

3. restitution

4. community service
criminal offense consists of two elements:
1. an actus reus (bad act)


2. a mens rea (a guilty state of mind)
the act requirement is really two distinct requirements:
1. the conditioning of just punishment on the proscription, charging, and proof of an actus reus

2. the particular actus reus the prosecution must charge and prove beyond a reasonable doubt in order to establish liability
"retribution as a limiting principle on punishment"
while many disagree as to the proper purpose of criminal punishment, one concept that all agree on is that desert is a neccessary condition for punishment (they must deserve it)
assuming that moral desert depends on a moral evaluation of actors' choices implies a psychological asumption:
that human beings are capable of critically evaluating their own desires and resisting them if, on reflection, it appears that pursuing those desires would be wrong
because of retributive limits andother social concerns, the "requirement of an act" may refer to some or all of the following seven conditions for just punishment: punishment must be for...
1. past 2. voluntary 3. wrongful 4. conduct 5. specified 6. in advance 7. by statute

FACTS: Proctor was convicted of keeping a dwelling with the intent of selling alcoholic beverages there
RULE: A criminal conviction requires an overt illegal act

-it is difficult to prove intent without an act
-criminal law is meant to shape conduct, not thoughts
free will and conduct in crim law
the idea of free will in relation to conduct is not, in the legal system, a statement of fact, but rather a value preference having very little to do with the metaphysics of determanism and free will
omissions - four situations where the failure to act may constitute a breach of a legal duty:
1. where a statute imposes a duty of care for another

2. where one stands in a certain status relationship to another

3. where one has assumed a contractual duty of acre for another

4. where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid
MPC 2.01(3) - omission as a basis of liability
liability for the commission of an offense may not be based on an omission unaccopmanied by action unless:

a. the omissionis expressly made suffieient by a law

b. a duty to perform the omitted act is otherwise imposd by the law
MPC 2.01(4) - possession as an act
possession is an act if the possessor knowingly procured or recieved the thing possessed or was aware or was aware of his contro thereof for a sufficent period to have been able to terminate his possession

FACTS: when cocaine was found in Maldonado's hotel room, he argued there was insufficien evidnce that he "possessed" the cocaine within the meaning of fed drug laws
RULE: person may constructively and/or jointly possess something even though they may not have actual or exclusive control over it

-constructive possession=power and intention to exercise control over something not actually in your possession
-when he placed the bag in the clothset and left the room, a jury could reasonably find constructive possession
problems with possession as an act (2)
-some argue that possession offenses have done away with the traditional requirements of mens rea and actus reus

-increased criminalization and penalties for possession offenses has been a major contributor to rising incarcetration rates
MPC 2.01(2) - the following are not voluntary acts...(4)
1. a reflex or convulsion

2. a bodily movement during unconsciousness or sleep

3. aconduct during hypnosis

4. any other bodily movement that is not the product of conscious control
policy for no culpability for involuntray acts:
nothing would more surely undermine the individuals sense of autonomy and security than to old him to account for conduct that he does not think he can control

FACTS: Robinson was convicted merely of being a narcotcs addict
RULE: States may not outlaw the condition of narcotics addiction

-drug addiction is an illness and may be contracted involuntarily
-only past conduct, not future propensity, is punishable by law

FACTS: Powell was convicted for being found in a state of intoxication in a public place
RULE: States may outlaw public behavior related to drug/alcohol use

-different from ROBINSON, b/c not punishing a mere status here, but an act that has already occured

FACTS: Morales challenged an anti-gang ordinance passed by the city of Chicago on the basis that the wording of the statute defining "loitering" was so vague as to make the statute unconstitutional
RULE: A statute providing penalties for criminal conduct is unconstitutionally vague if it fails to give sufficient notice regarding the type of conduct that is prohibited

-law fails to provide notice to permit ordinary persons to understand what condct is prohibited
the wording of the law encourages arbitrary and discriminatory enforcement
-citizens should not have to speculate as to the meaning of the law

note on vagrancy and the void-for-vagueness principle in opinion:
a direction by the legislature to the police to arrest all "suspicious" persons would not pass constitutional muster. a vagrancy prosecution may merely be the cloak for a conviction which could not be obtained on the real but undisclosed grounds of the arrest
some exceptions to barring vague statutes: (2)
1. vague statutes may be premitted if some "evil" intent is required for the conduct to become criminal

2. courts are more likely to uphod vague statutes that proscribe conduct only within a limited area
criminal law generally concieves bad thoughts as one of two things:
1. the desire to harm others or violate some other social duty, or

2. disregard for the welfare of others or for some other social duty

FACTS: when Dillard was convicted of carrying a loaded firearm in a public place, he argued that knowledge that the weapon is loaded should be deemed to be an element of the offense
RULE: certain types of regulatory offenses enacted for the protection of the public health and safety (misdemeanors)are punishable despite the absence of culpability or criminal intent in the accepted sense

-purpose of statute was regulation, not punishment
-carrying loaded gun in public destructive to social order, and intent would be very hard to prove
strict liability

1. def

2. treatment by MPC
1. liability w/out moral fault or culpable mental state

2. according to MPC 2.05, when the state imposes SL, the criminal offense may be punished only as a "violation" (usually pay fine, see MPC 1.04(5)
US v. WULFF, 1985

FACTS: when Wulff was indicted for selling migratory bird parts in violation of the MBTA, he argued that since the ststute does not rquire guilty knowledge, imposotion of a feleony conviction would violate his due process
RULE: absence of a requirement that the government must prove some degree of mens rea for a felony conviction violates due process

-the eliminaion of the element of intent does not violate dues process only when
1. the penalty is relatively small (ex. misdemeanor) and
2. conviction would not irreparably damage one's reputation
-felony conviction=no vote, no gun
argument against using SL
a criminal conviction carries with it a connotation of moral condemnation and oersonal guilt; thus society makes an illigitimate use of this instrument when it uses it as a means of deterrance (or compulsion) of conduct which is morally neutral
MPC 2.02 - minimum requirements of culpability
Except as provided in section 2.05 (SL), a person is not guilty of an offense unless he acted purposely, knowingl, recklessly, or negligently, as the law may require, with repect to each material element of the offense

FACTS: Faulkner, trying to steal rum from a ship, accidentally started a fire, destroying the entire ship
RULE: One is criminally liable for a crime collateral to an intended crime only when it is a natural ad probably consequence of the intended crime

note, the statute required malice for a conviction, probably the lacking element, although the decision does not address it
specific v. general intent

(no longer utilized in our system)
specific - actively desired the prescribed crminal consequences (purpose)

general - must have realized prescribed criminal consequences reasonaby certain to result

*In REGINA, court obviously considered statute to cover only specific intent
MPC 2.02(2) - kinds of culpability defined:(4)
1. purposely - it is his conscious object to cause the results

2. knowingly - he is aware that it is practically certain that result will occur

3. recklessly - he consciously disregards a substantial or unjustifiable risk

4. negligently - he should have been aware of a substantial or unjusifiable risk
US v. JEWELL, 1976

man deliberatly avoided positive knowledge whtther pot had been stored in a secret compartment in his car
court says "willful blindness" is equivilant to knowingly
controversy over liability for negligence

neg shouldn't exist - pro and con
PRO: culpability is conditioned on awareness of wrongdoing, so never fair to punish a negligent wrongdoer

CON: negligent harm-doers exhibit such an indifference to social values that they deserve punishment

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