Ch. 2 PUNISHMENT

A. Why Punish? MPC § 1.02 (1-3) 1. Retribution i. Seeks to punish a criminal simply because she deserves it. It is often referred to as “just deserts” theory. ii. Retribution has a retrospective look in that it looks back at the criminals past acts, mental state, and harm fone to assess her just deserts. iii. It is not concerned with the consequences or usefulness of punishement, but with criminal blameworthiness. iv. Focuses narrowly on the individual blameworitness of the criminal (the other seek to advance society’s collective welfare). 2. Deterrence i. Is the notion of reducing crime through the fear of punishment, the “intimidation of terror of the law”. 3. Incapacitation i. Aims to deprive the criminal of the ability or opportunity to commit crime. ii. Theory of punishment that seeks to prevent future crime and avoid its attendant personal and social costs by elimination or restricting the ability and opportunity of a potential criminal to commit crime. 4. Rehabilitation i. Treatment efforts seemed to offer only limited hope for success. Relying on treatment to decide the sentence seemed also to leas to unjust results. 5. Denunciation i. Those who disobey criminal laws should be held up to the rest of society and denounced as violators of the rules that define what the society represents.

Ch. 3MAKING CRIMINAL LAW

A. Legislature and Judges i. Khaliq v. Her Majesty’s Advocate - Defendant is charged with distributing glue and paraphernalia for inhaling vapors from the glue to children between the ages of 8-15.- This case is not concerned with a “new” crime. It is concerned with the breach of existing common law relating to the use of poisonious, or at least injurious, substances to the danger of health and life. ∆ claim that under the CL in Scotland they believed they were not breaking the law. However, since they acted recklessly they were found guilty.

ii. Keeler v. Superior Court - Is a fetus considered a “human being” in order for defendant to be charged with the murder of a living person?- Court used the Common Law (CL) from 1850 to decide that murder was the unlawful killing of a human being with malice aforethought. And, that a fetus did not fall under this category according to the words in the CL. (State changed it to include fetus after this case). So Keeler did not meet the elements of murder under the statute. - New interpretation: Majority gives 2 reasons why it wont change the interpretation of the statute to make the killing a mureder1. Authority: Court sites Section 4 and 6- Under these statutes a court does not have the power to rewrite a statute. (seperation of powers, is it our role as interpreters of the law? Will we exceed our authority if we changed the statute?)

2. Due Process:Retroactivity, court is avoiding a violation of due process by not changing the statutory and therefore acting constitutionally. The statute does not apply so we do not have to decide if it needs to be revised.

The Rule of Lenity - when words of the statute are ambiguious (NOT every state uses the Rule of Lenity) traditional rule is when a statute is ambiguous we can give the benefit of doubt to the ∆. When in doubt court should in favor of the lesser sentence.

Ex-Post Facto Clause- legislature cannot retroactively(act on things in the past) create crime or make punishment worse then it was in past precedent. (only applies to statutes).

Due Process- Fair notice of what a crime is, cannot adopt an interpretation that is unforeseeable. Rule, which governs the way that courts interpret statutes. (preexisting statute cannot be judicially).

Common Law Rule- Case –by- Case development of the precedent. Retroactively – Legislative act that looks backward or contemplates the

past (decisions or precedent). Prospectively- Law that applies to future events

1. Common Law v. Statutes a) Legitimacy b) Accesibility and Comprehensability c) Prospective v. Retrospective Opeartion d) Balancing the Particular and the General e) Keeping Criminal Law Current f) Insitutional Competence

C. Statutory Interpretation 1. Intentionalism i. Church of Holy Trinity v. United States - Petitioner (church) contracted with a pastor in England to come to the U.S. for employment at its church. Petitioner was charged and convicted for violating federal law, which prevented an employer from contracting with foreign laborers to come to the U.S. for employment. Petitioner challenged its conviction, arguing that the law did not apply to churches. The court held that the term "laborer" in the federal statute applied only to cheap unskilled labor, and not to professional occupations, such as ministers and pastors. The court determined that it would be absurd for the law to apply in this instant, and reversed petitioner's conviction.

2. Textualism i. Scalia ii. Breyer 3. Dynamic Statutory Interpretation i. Eskridge

D. Specificity (Vagueness Doctrine) 1. Two elements need to be met for statute to be enforced: a) Adequate Notice (legal fiction/ hypothetical)- facialEX: Would ordinary people who did look up this law know what the statute is suppose to mean and how it applies? b) Enforcement standard/ limits – as-applied EX: Does the statute have any limits to it? 2. If a statute does not meet these two requirement it may be found to be vague on its face and unconstitutional bc it will violate the Due Process right under the 5th and 14th Amendment.

i. City of Chicago v. Morales - Petitioner (city) enacted a Gang Congregation Ordinance, which prohibited criminal street gang members from loitering in any public place. The Supreme Court of Illinois struck down the ordinance on the basis that it violated the Due Process Clause of the 14th Amendment. The court held that the ordinance was unconstitutionally vague. The ordinance did not meet the fair notice requirement because it did not provide adequate notice of what constituted prohibited conduct. Because no standard of conduct was specified, at all, by the ordinance, the entire ordinance failed to give the ordinary citizen adequate notice of what was forbidden and what was permitted. The ordinance also violated the requirement that a legislature establish minimal guidelines to govern law enforcement. Because the ordinance provided absolute discretion to police officers to determine what activities constituted loitering, the ordinance failed to meet constitutional standards for definitiveness and clarity. Thus, the ordinance was unconstitutional for vagueness.

ii. United States v. Sattar - The inmate, incarcerated was a leader in a designated foreign terrorist organization (FTO). The interpreter was also a leader in that FTO. Because of the inmate's membership in the FTO, the Bureau of Prisons set up special administrative measures severely limiting the inmate's contact with the outside world. When the attorney and the interpreter visited the inmate in prison, the interpreter allegedly discussed strategies and plans for the organization under the guise of translating, while the attorney helped conceal the discussion by making extraneous English comments to mask the Arabic conversation. The court held that the statute was unconstitutionally vague as applied with regard to the statute's prohibition on "providing" material support or resources to an FTO in the form of "communications equipment" and "personnel." There was no reasonable way to redact the indictment to charge only a conspiracy to provide currency and transportation or the related substantive offense, so the counts were dismissed.

Ch. 4CONDUCT - ACTUS REUS (MPC§ 2.01) Actus Reus- “guilty act” the wrongful deed that comprises the physical components of a crime and that generally must be coupled with Mens Rea to est. criminal liability. MPC § 2.01 “Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act.”

(1) A person is not guilty of an offense unless his liability is based on conduct that includes (i) a voluntary act or; (ii) the omission (iii) to perform an act which he is physically capable.

(2)Voluntary: The following are not voluntary acts within the meaning of the §: (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. DEF: Conduct is generally voluntary if the actor made a conscious choice to act, even if coercion influences the choice. Conduct that is intended

(3) Omission: 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. **(both don’t need to be fulfilled to have omission) **DEF: A leaving out. A failure to act. The failure to do something which ought to be done; not doing something required.”Not doing something under a could be omission (IE: Not feeding your kids, not stopping at a red light) (4) Possession: is an act, within the meaning of this §, if the possessor (i) knowingly procured or received things possessed or; (ii) was aware of his control thereof for a sufficient period to have been able to terminate his possession. DEF: A person has possession of something id the person knows of its presence and has physical control of it, or knows of its presence and has the power and intention to control it.*No legal liability to rescue a stranger, you must prove there was a duty in order to prosecute. * If jury received wrong instructions you are going to get a reversal almost everytime.

*”Joint” Possession- more than one person can have possession of any item.* “Constructive” Possession- Found when actually possession is lacking but the person nonetheless exercises some sort of control over the item.

MPC § 1.13 (9) “Element of an Offense” means:(i) such conduct or (ii) such attendant circumstances (iii) such a result of conduct as (a) is included in the description of the forbidden conduct in the definition of the offense; or (b) est. the required kind of culpability; or (c) negatives an excuse or justification for such conduct; or (d) negatives a defense under the SOL; or (e) est. jurisdiction or venue

1. Distinguishing Act from Omission -Jones points out that a “status relationship (husband and wife, parent and child) usually gives rise to a duty.

Ch. 5 MENTAL STATES - MENS REA A. Functions of Mental States 1. Distinguishing Criminal from Non-Criminal Conduct - ∆ mental state is closely tied to our intuitive sense of blameworthiness. Therefore, from a Retributive prespective, it makes sense to rely on mental state to indicate conduct that is blameworthy and should be criminally sanctioned. - Criminal statutes may and often do require more than one mental state for conviction. A person is capable of having more than one mental state at the same time.

2. Mental State is Relational - Crim Laws treatment of mental states recognizes: a) that mental state is a question of degree b) that crime and criminals can have more than one mental state c) that mental state is relational.

B. Definitions of 4 Mental States (Mens Rea)

MPC § 2.02 “Mens Rea” and General Requirements of Culpability i. Minimum Requirements of Culpability.

1. 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.

ii. Kinds of Culpability Defined.1. Purposely

a. it is his conscious object to engage in conduct of that nature or to cause such a result; and

b. if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

2. Knowinglya. 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

b. 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.

3. Recklesslya. consciously disregards a substantial and

unjustifiable risk that the material element exists or will result from his conduct (involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation)

4. Negligently.a. should be aware of a substantial and unjustifiable

risk that the material element exists or will result from his conduct (involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation)

iii. Culpability Required Unless Otherwise Provided. when not prescribed by law= acts purposely, knowingly or recklessly (NOT CULPABLE IF NEGLIGENT)

iv. Prescribed Culpability Requirement Applies to All Material Elements (ACT, HARM, ATTENDANT CIRCUMSTANCE)

v. 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.

ix. Culpability as to Illegality of Conduct (Mistake of Law) Think, which elements of the crime must you have a mens rea?

a) Has to relate to at least part of the AR if not all of it (statute will tell you) b) Presumption=applies to all element unless statute says otherwise

C. Strict Liabilty “absolute liability” –MPC § 2.05 DEF: If one does an act and any remaining non-mental elements are fulfilled, one is liable. “malum prohibition”- “b/c we said so”

I. RulesII. General intent crimes=rape (no mens rea required) have to be at least

negligent and your guilty state of mind will be negated if you make a reasonable mistake of fact unless common law jurisdiction applies legal wrong doctrine (need only prove AR was with a morally blameworthy state of mind) (reckless/negligent)a. Legal wrong doctrine=(set about to commit lesser crime but actually

commit greater crime=liable for greater crime even though intent was for a lesser crime)

b. Moral wring doctrine=thing you wanted to do was morally wrong and you end up creating a crime then you are still liable (thing you wanted to do was morally wrong=so still guilty)

III. Specific Intent Crimes=mental state specifically set out in definition of crimea. require a mens rea about something beyond the actus reus of the

offense.  Generally, this is either an intent to do some further act (i.e. burglary is entering a building with the intent to commit larceny or some other felony therein), or an intent to violate a known legal duty (tax evasion, for example).

b. Any mistake is fine=crime requires you to have intent to violate someone’s legal rights

IV. Strict Liability statutes (public welfare statutes )=require no mens rea-typically minor violations

MPC § 2.05 (no strict liability for crimes) @ common law there were crimes that some didn’t not require mens rea they could just prove actus reus. A violation under the MPC is not a crime. If Court has a strict liability because you committed the actus reus then you are guilty it does not matter if you had mens rea or not .If you don’t see any mens rea words in the statute use recklessly * Common Law does not have this kind of a rule, If you don’t see any mens rea words you have to make a decision whether or not the statute has mens rea or a crime has strict liability. All the govt has to do under CL is prove that you did the actus reus and you are guilty under the CL you do not have to prove mens rea if there is no language in the statute.

D. Mistake of Fact (∆ may have lacked a particular mental state). Mistake of fact is a defense if it negates the MR (this does not include criminal law, it DOES include non-criminal law).DEF:Ignorance- The fact or condition of being ignorant; want of knowledge

Mistake- A misunderstanding of the meaning or implication of something; a wrong action or statement proceeding from faulty judgment, inadequate knowledge or attention.

Accident- An event occurring by chance; lack of intention; an unfortunate event resulting from carelessness, unawareness, ignorance or a combination of causes. 1. Mistake of Evidence of Mental State - Ignorance or mistake is a defense when it negative the existence of a state of mind that is essential to the commission of an offense, or when it est. a state of mind that constitutes a defense under a rule of law relating to defenses. * Under the MPC you can always make a defense to mistake of fact under the common law you cannot.

MPC § 2.04 “Ignorance or Mistake of Law”

I. Rules(1) Ignorance or mistake as to a matter of fact or law is a defense if: (i) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or (ii) 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 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 and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.

(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: (a) the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or

(b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense. (4) The defendant must prove a defense arising under Subsection (3) of this Section by a preponderance of evidence.

E. Intoxication MPC § 2.08 (1) Intoxication is not a defense unless it negatives an element of the offense. (2) When recklessness est. an element of the offense, if the actor due to self – induced intoxication, is unaware of risk of which he would have been aware if sober. (3) Intoxication in itself does not constitute mental disease w/ in meaning of 4.01. (4) Intoxication that (a) it not self-induced or, (b) is pathological is a defense if by intoxication actor lacks capacity either to appreciate its wrongfulness or to conform his conduct to requirements by the law.DEF:(i) Intoxication- a disturbance of mental or physical capacities resulting from substance introduced into the body. (ii) Self-Induced Intoxication- Intoxication caused by substances actor knowingly put into his body, which causes intoxication that he knows or ought to know, unless they are introduced under medical advice or such circumstance would be a defense. (iii) Pathological Intoxication- Intoxication grossly excessive in degree, given amt of intoxicant, to which actor doesn’t know he is at risk.

NOTE: It can be a defense for purposely and knowingly but it does mean it has to be. A heavily intoxicated person CAN act purposely, but does have to. It can never be a defense for recklessly or negligently.

F. Mistake of Law MPC § 2.02 (9) I. Neither K nor R, or N as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining elements of an offense is an element of such offense, unless def. of offense or the Code so provides.

NOTE: No Mens Rea conduct constitutes the offense, govt doesn’t have to prove that there was MR to convict you. *Advice of counsel is not a defense. *CL mistake of law is not an offense

A. Speicific and General Intent a. General principle of common law=ignorance of the law is no excuseb. Specific Intent Crimes=ignorance might be an excuse

i. If you think what you are doing is authorized you can raise as defense.

Practice Problems:

1. Charge: Perjury Knowingly making a false statement in a federal grand jury *Knowingly – must be aware of conduct*Conduct- “making” Cir- “false” Cir- “in a federal grand jury” Actus Reus:Part of ∆’s testimony was not true.

Defense: “Whoops. But at the time I testified, I was pretty sure what I was saying was true.” Answer: NOT GUILTY. Actus Reus is false and the mens rea is knowingly. Was he aware what he was saying was false? No, he sais he was pretty sure it was true. HE was aware that it might be false. That is recklessness not perjury. “false” must be knowingly, ∆ though that the statement was true when he made it.

2. Charge: Joyridingtaking the motor vehicle of another without consent

Actus Reus: ∆ “borrowed” V’s car for the day, then returned it.

Defense: “I didn’t actually ask V, but I was pretty sure that she wouldn’t mind.” (If you change it to “I always borrow V’s car then he could have a good argument that he is not guilty.)

Answer: GUILTYHe acted recklessly regardless of the consent from V, the mens rea requirement is fulfilled because he acted recklessly. Must apply recklessly to conduct and circumstance

3. Charge:1st degree: setting fire to the dwelling of another 2nd degree: setting fire to the building

Actus Reus:∆ burned down a structure containing condos.

Defense:“It never occurred to me that the building might be anything but a warehouse.” (If changes to: “I was pretty sure it was a warehouse, but I didn’t actually check and make sure. He would be charge with the 1st degree charge of arson because he met both requirements of mens rea(acting recklessly) and actus reus to be charge with the more severe crime.

Answer:GUILTY of 2nd degree arson.No mes rea word so it is reckless on everything so he is guilty of the 2nd degree charge of arson. He does not fulfill the mens rea for the first degree charge but he does fulfill the reckless requirement for mens rea of the second degree of arson. **In order for Mens Rea to occur you need to have the words either: Purposely, Knowingly, Recklessly, Negligently.**

4a. Charges: simple: application of force to another person aggravated: application of force to a law enforcement officer

Actus Reus: ∆ punched an under cover police officer in the face.

Defense “He yelled at me and told me he was a cop but I didn’t believe him so I punched him in the face.”

Answer: GUILY of aggravated battery (because he chose to consciously disregard the possibility that he may be wrong, so he acted recklessly in disregarding that the guy may actually be a cop). Still no Mens Rea words still recklessly

4b. Charges: battery Simple: applcation of force to another person Aggravated: knowingly application of force to a law enforcement officer

Actus Reus: ∆ punched an undercover police officer in the face.

Defense: “He yelled at me that he was a cop, but he didn’t have a badge or anything so I didn’t believe him.”

Answer: GUILTY OF SIMPLE BATTERY Because the statue requires has a mens rea word “knowingly” and the defendant did not knowingly punch a police officer he only recklessly punched a police officer on the reckless disregard that he may be a cop. The fact that the ∆ is negligent is irrelevant because it does not state negligently in the statute, they are only guilty if it is in the staute.

* Under the MPC if the defendant is negligent they get aquitted. * Diff bt knowingly and reckless is the certainty and probability.

1a. Charge: knowingly possesses a listed controlled substance, eg. Heroin, cocain, marijuana, ephedrine, meth

Actus Reus: ∆ had ephedrine tablets.

Defense:“I didn’t know that ephedrine was on the list” (MISTAKE OF CRIM LAW)

1b. Defense: (same charge) “ I thought it was ibuprofen.” (MISTAKE OF FACT).

2a. Charge: arson

Actus Reus: ∆ burned down V’s freestanding garage. V’s son Z has his bedroom in the garage’s loft.

Defense: “I didn’t know Z’s bedroom was there I thought it was just a garage.” (MISTAKE OF FACT) bc he knew that it was illegal to burn down a garage but he didn’t know Z bedroom was in the garage.

2b. Defense: “ I knew Z’s bedroom was there, but the buildings main purpose is as a garage so I didn’t think it was a dwelling.” (MISTAKE OF CRIM LAW), it doesn’t matter what you thought the law was, you knew that the dwelling was a bedroom and so therefore satisfy the element of MR and ∆ is GUILTY.

3. If there is a statute that prohibits knowingly possessing “fire arms” including auto-matic guns and bombs. If you have hand grenades and your defense is “I had the had grenades but I thought they were only replica (didn’t know they were hand grenades)” It would be a mistake of facts. If your defense is “ I knew that I had hand grendades but I did not know that they were under the statute” It is a mistake of criminal law.

4a. Charge: Bigamy Entering a marriage while still married to another person

Actus Reus: ∆ married X while still married to W.

Defense; “ I didn’t know it was againt the law to be married to two people at the same time.” (MISTAKE OF CRIMINAL LAW), it doesn’t matter that you didn’t “know” about the law it is so you cannot use this as a defense.

4b. Defense: “ I thought W was dead.” (MISTAKE OF FACT)

4c. Defense: “I thought my divorce from W was already final.” (MISTAKE OF NON-CRIMINAL LAW) This is a mistake under family law not crim law.

5. Charge: larceny taking and carrying away the personal property of another with intent to permanently deprive

Actus Reus: Morissette ∆ took scrap metal from government land.

Defense: “I thought the metal was abandoned.” (It does matter what we call this he negates the MR of property law and is a mistake of non-criminal law (property law), and it is a mistake of fact because he thought the metal was abandoned.

6. Most states have statute that has a mechanics lein. Says: If you take your car to a mechanic and they perform work on it they can keep it until you pay them. If you cant pay them and you go in the middle of the night and take you car back it is stealing under that statute. But no one knows that and it is not a mistake of crim law but a mistake of property law. This is a defense if the MR is negated.