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|1||Show/Hide More||I. Orientation|
During orientation we read the case, Durham v. State. This case serves as an introduction to the criminal law course because of its basic but profound recognition of the violence at the core of the state’s ability to arrest and punish individuals who resist the law. Law enforcement depends on force, that is, state coercion of individuals to obey the law and to submit to legal authority, through the threat of punishment.
This course deals with the what, why, and how of criminal law: What should be criminal? Why should it be criminal? How do we define a crime, and how should we punish it?
It also deals with the “so what” of criminal law: How does it reflect our values? How does it shape our society? How does it contain our views of what it means to be human? What is criminal law for?
Our study of criminal law will begin by examining basic elements of just punishment: (1) legality, the requirement that criminal punishment have a legal foundation; (2) actus reus, the actual proscribed conduct that constitutes the crime; and (3) mens rea, the state of mind necessary for a given action to be criminal.
Throughout the course we will also consider the common justifications of criminal punishment: (1) retribution; (2) deterrence; (3) incapacitation; and (4) rehabilitation.
|2||Show/Hide More||II. Elements of Just Punishment|
|2.1||Show/Hide More||II.A. Legality|
It seems commonsensical that for criminal punishment to be just and legal, the activity punished must have been made illegal.
However, legality is a more complex subject than it seems, as the cases below illustrate. Legislatures and courts struggle to define and interpret criminal law, and the roles and relationships between these institutions in determining what is criminal have evolved over time. Consider the strengths and weaknesses, advantages and disadvantages of courts and of legislatures in defining particular crimes — a topic you have undoubtedly encountered throughout your 1L year.
Additionally, giving people notice of criminal proscription underpins the idea of legality. Consider the issue of notice. Given the limited knowledge that most people have of the law, can they be said to have actual notice of what conduct is criminal? And should this matter? As you will see, courts sometimes invalidate convictions due to lack of notice, such as when a statute is unconstitutionally vague. Given that most people don’t read criminal statutes, why do courts go to such lengths to uphold the principle of notice?
|2.1.4||Show/Hide More||Lawrence v. Texas|
|2.2||Show/Hide More||II.B. Actus Reus|
Actus reus, or the act requirement, is the first part of culpability in criminal law. (You will meet the second part, mens rea, in the next section.) In short, almost every crime must have an act, but defining that act can be tricky. Sometimes something that seems like an act isn’t an act; other times, something that does not seem like an act is one.
These cases introduce you to the act requirement. Notice distinctions between voluntary and involuntary acts, and between conduct and the results of conduct. Consider why the court reaches the decision it does in each case, and what its decision says about its concept of blameworthiness.
|2.2.4||Show/Hide More||II.B.i Acts v. Omissions|
When is not acting an act?
One of the most fraught distinctions in criminal law has been the act/omission distinction. For most people, punishing inaction in certain situations seems to flow naturally out of the sense of blameworthiness that underpins much of criminal law. However, defining the criminal act when it is not an act raises problems.
As a general rule, there is no criminal liability for omissions. The following cases and readings consider the exceptions to this rule, whether they arise from statutorily created duties, special moral relationships, contractual relationships, or the voluntary assumption of responsibilities. As you will see, in some cases, criminalizing omissions likely tracks your moral intuitions. In others, you may feel more conflicted. Consider why different scenarios imply different levels of blameworthiness, but also what goals or behaviors society may seek to promote by assigning affirmative duties to act.
|2.3||Show/Hide More||II.C. Mens Rea|
Mens rea—a guilty mind—is the second part of criminal culpability, and undoubtedly one of the most complex subjects we will study in this course. Intricately tied into concepts of blameworthiness, mens rea can determine whether the same conduct and result constitute a blameless accident or a capital offense.
The cases and readings in this section represent a range of mens rea categories, from a lack of mens rea to various grades of mens rea: negligence, recklessness, knowledge, and purpose. As you will see here and throughout this course, there are gradations and exceptions even within these categories.
The questions these cases raise are fundamental to the study of criminal law. As you read through them, consider why each crime requires the mens rea that is attached to it, whether you think that requirement is fair, and the impact of the mens rea requirement on the enforcement of the law. How would the crime have been adjudicated under different mens rea requirements? Does the requirement track your sense of moral blameworthiness?
|2.3.6||Show/Hide More||Oliver Wendell Holmes, Jr. - "The Path of the Law"|
|2.3.9||Show/Hide More||II.C.i Strict Liability|
As we already discovered in the last section in Garnett v. State, some crimes do not require any mens rea. Such “strict liability” crimes can result in punishment for an act alone. While mens rea is typically a crucial part of defining blameworthiness in criminal law, strict liability crimes are often more concerned with regulating behavior than punishing the most blameworthy offenders.
The following cases explore this idea. As you read them, consider why a lawmaker might choose to create a strict liability crime, and why a court might allow one. Are certain kinds of crime particularly apt to be strict liability offenses? What effect does removing the mens rea requirement have, and what expectations does it impose upon people?
|3||Show/Hide More||III. Homicide|
|3.1||Show/Hide More||III.A. Statutes|
|3.2||Show/Hide More||III.B. Intentional Homicide|
|3.2.1||Show/Hide More||III.B.i. First v. Second Degree Murder|
|3.2.2||Show/Hide More||III.B.ii Murder v. Voluntary Manslaughter|
Distinctions within the group of crimes known as “homicide” depend on more than the different mens rea levels associated with a killing. Knowing that a person killed someone (act) with purpose or knowledge (mens rea) does not necessarily mean that the person committed “murder.” Criminal law sometimes takes additional circumstances into account when assigning blame.
In the case of knowingly or purposefully killing someone, provocation or extreme emotional disturbance might mitigate the crime of murder down to voluntary manslaughter. As the cases below demonstrate, different courts have taken different approaches in defining whether and what circumstances might lessen the seriousness of an intentional killing.
As you read these cases, consider the challenges that courts face when they downgrade a crime committed with the same basic act, result, and mens rea. Where and how do courts draw lines between which circumstances mitigate murder, and which circumstances don’t? In determining the effect of provocation or emotional distress, should courts look at a criminal’s individual nature, or hold him/her to an objective standard?
|3.3||Show/Hide More||III.C. Unintentional Homicide|
|3.3.1||Show/Hide More||III.C.i. Involuntary Manslaughter and Similar Offences|
The intentional homicides we just studied required us to differentiate between what were clearly blameworthy acts. Unintentional homicide poses a different problem: how to distinguish between criminal deaths and noncriminal deaths, when the perpetrator did not act with purpose to kill or with knowledge that his conduct would result in killing.
When is a death deemed the result of someone’s criminal negligence or recklessness, and when is it a horrible accident that does not result in criminal liability? Some of the cases in this section present unsavory and unsympathetic protagonists; you may be able to empathize with others. Consider what the courts in each case think the defendants did wrong, and what legal tests they use to make those determinations.
|3.3.2||Show/Hide More||III.C.ii. Unintentional Murder|
Just as certain factors can bump murder down to manslaughter, others can bump it right back up. The cases in this section examine circumstances considered so extreme that, even though they do not show specific intent to kill or knowledge of killing, they are punished as “unintentional murder.”
The doctrines that raise these homicides from manslaughter to murder have provocative traditional names: depraved heart; abandoned heart; malignant heart; or, more recently, “extreme indifference to the value of human life.” Consider why we punish these unintentional killings more severely than others, and how we distinguish these kinds of homicides from “normal” recklessness or indifference. Is it simply an instinctual feeling that these crimes are more blameworthy? As you read these cases, consider how the main justifications for criminal punishment—retribution, deterrence, incapacitation, and rehabilitation—justify elevating the level of criminal punishment.
|3.3.3||Show/Hide More||III.C.iii. Felony Murder|
In criminal law, sometimes the result trumps the intention.
Perhaps the least intuitive category of homicide that we will study is felony murder. Under the felony murder rule, accidental and unintentional killings that occur during the commission of a felony are sometimes elevated from unintentional homicide to murder.
The felony murder rule has been controversial. It has evolved in scope over time, and, as the cases below show, is now often limited to inherently dangerous felonies. By transferring intention and blameworthiness from a separate felony to a homicide, the felony murder rule significantly raises the stakes of any felony that may tangentially and even unforeseeably lead to death.
Why might the felony murder doctrine have developed? Consider how courts have limited it over time. What concerns have animated criticisms of the rule? Have the courts’ efforts to limit the rule preserved its usefulness, or is it an unfortunate relic of the past?
|3.4||Show/Hide More||III.D. The Death Penalty|
Capital punishment has driven the evolution of homicide law in the United States for centuries. Throughout that evolution, questions of fairness and arbitrariness have recurred. Because the death penalty was originally mandatory for murder, states began differentiating between first- and second-degree murder, limiting capital punishment only to the former, more blameworthy crime. As capital punishment gradually became more discretionary, the opposite concern arose: that it would be imposed unevenly and disproportionately to certain defendants, especially minorities. At one point, the Supreme Court suspended the capital punishment system altogether in Furman v. Georgia.
Today, many capital punishment systems attempt to straddle the line: allowing discretion, but not unguided discretion. In some jurisdictions the death penalty has been eliminated. In others, it has been cabined to only the most heinous murders. Ironically, the growing sophistication of capital punishment systems that developed as a response to Supreme Court nullification of death penalty laws has led to a resurgence of executions.
As you read these cases, consider why the death penalty has driven such changes in our criminal adjudication system, and what concerns courts have raised about the application of capital punishment. Have reforms reinstating the death penalty solved the problems the Supreme Court identified? How do concerns about the death penalty fit into the justifications and problems of criminal punishment more generally?
|4||Show/Hide More||IV. Justification and Excuse|
|4.1||Show/Hide More||IV.A. Justification|
|4.1.1||Show/Hide More||IV.A.i. Self-Defense|
In the next few sections, we will explore situations in which the commission of what might otherwise be a crime does not result in punishment. Broadly speaking, the doctrines in this area of criminal law are grouped into “justification” and “excuse.” In this section, we will discuss the first kind of justification: self-defense.
Self-defense justifies a crime—more than excusing it, it affirms that what would otherwise be a criminal act is in fact desirable in a given situation. In cases of legal self-defense, our system treats a person who kills or injures as morally right, even when they kill intentionally.
Legalizing assault, killing, or other forceful actions inevitably devolves the state’s usual monopoly on the legitimate use of force, to individual persons capable of abusing it. Thus, legal self-defense raises several concerns. Should self-defense be a last resort? Must the defender respond with minimal force, or is any amount of force legitimate? Must the threat be actual, subjective, or objectively reasonable?
Different jurisdictions have created different systems. Compare the questions raised by situations such as ongoing abusive domestic relationships or an encounter with a stranger on the subway. As you read the following cases, consider the criminal system’s difficulty in managing individuals’ legal use of force, and notice how the law attempts to channel and contain that Pandora’s box.
|184.108.40.206||Show/Hide More||Jeannie Suk, At Home in the Law, Chapter 3 - Scenes of Self-Defense|
|4.1.2||Show/Hide More||IV.B.ii. Necessity|
Necessity may also justify action that would otherwise be criminal. The category is significantly narrower than self-defense, and claims of necessity are rarely successful. Necessity requires imminent and grave harm that results through no fault of the defendant. The defendant must take forceful action only when the benefits clearly outweigh the harms.
As you will see, the cases in this section often deal with significantly more extreme fact patterns than the self-defense cases. Why is the necessity justification narrowly construed?
|220.127.116.11||Model Penal Code sec. 3.02|
|4.2||Show/Hide More||IV.B. Excuse|
|4.2.1||Show/Hide More||IV.B.i. Duress|
|18.104.22.168||Model Penal Code sec. 2.09|
|4.2.2||Show/Hide More||IV.B.ii. Insanity|
The insanity excuse has been around for a long time, even as society’s social and scientific understandings of insanity have evolved. As an excuse, rather than a justification, insanity doctrine does not hold that the criminal act was morally correct, but rather that the insane person is not responsible for a morally wrong action.
The cases and readings in this section introduce some of the formulations of the insanity defense that are currently in use. Consider how the various formulations balance the moral and the medical. According to one insanity rule, the ability to tell right from wrong is central to the insanity inquiry. According to another, self-control is key, as an irresistible impulse may excuse culpability. The Model Penal Code applies a sort of hybrid. Each major test is followed in a variety of jurisdictions, and some jurisdictions follow yet another test or provide for no insanity defense at all. What does the sheer diversity of approaches and standards tell us about the insanity excuse? Should the very diversity of approaches implicate fairness concerns?
Consider why our criminal justice system may not seek to punish the insane. How does insanity implicate the traditional justifications of punishment (retribution, deterrence, incapacitation, and rehabilitation)? Since criminal punishment undoubtedly has a moral component, what should be the role of science in defining who is insane and who is excused due to insanity? Are those the same questions, or are they different?
Lastly, insanity may implicate more than the question of excuse. Even if someone is guilty, they may be “guilty but mentally ill.” Consider what role insanity or mental illness may play in establishing the other elements of a crime, such as mens rea.
|22.214.171.124||Model Penal Code sec. 4.01|
|4.2.3||Show/Hide More||IV.B.iii. Diminished Capacity|
|4.2.4||Show/Hide More||IV.B.iv. Environmental Deprivation|
|126.96.36.199||Show/Hide More||Richard Delgado — 'Rotten Social Background': Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?|
|5.1||Show/Hide More||V.A. The Offense|
To a greater degree than any of the other crimes we study in this class, the very definition of rape has been a subject of dispute and reform in recent years. Perhaps that is because the basic result element that rape law criminalizes—sexual intercourse—is not, unlike death or battery, itself considered bad. When someone intentionally kills another, there is usually little question (except in cases of self-defense) that the result is bad and that a crime may have occurred. Unlike most intentional killing, intentional sex is not inherently wrong. Indeed, in some situations, much of the evidence of rape may rest in the perceptions and interpretations of the involved parties.
The traditional elements of rape law are: 1) sexual intercourse; 2) with force; 3) and lack of consent. Because the sexual intercourse element of rape can be difficult to distinguish from lawful, intentional behavior, rape law has struggled to create a regime that balances the punishment of wrongdoers with the protection of the rights of the accused. Originally, rape law established strict rules governing punishable behavior that were under-inclusive and strongly protected accused men: for example, a claim of rape had to include the use of physical force by the accused and physical resistance by the victim. Additionally, there was a spousal exception to rape, so that husbands could not be criminally liable for rape of their wives.
As the cases in this section demonstrate, however, rape law reform in the past several decades has dramatically affected these requirements. Namely, feminist legal reformers have challenged and in many jurisdictions weakened or eliminated the force requirement. That has shifted more legal focus onto the question whether there was consent. Consider what problems consent itself may have as a central element of rape law.
As you read the cases and essays in this section, consider how different formulations of rape law balance several very serious considerations of our criminal system: punishing wrongdoers; differentiating between levels of blameworthiness; and protecting the rights of defendants. What evidentiary or normative roles did the traditional rape requirements play? What are the risks of limiting or removing them? How should our system balance the risks of over-inclusivity and under-inclusivity? What social and intimate relationships between men and women do the various possible rape rules promote and change? And as always, how do these questions implicate the justifications of punishment such as retribution and deterrence?