II. Elements of Just Punishment | Jeannie Suk | August 14, 2012


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II. Elements of Just Punishment

by Jeannie Suk Show/Hide
  1. 1 Show/Hide More II.A. Legality
    Original Creator: Jeannie Suk

    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?

    1. 1.4 Show/Hide More Lawrence v. Texas
      Original Creator: Jeannie Suk
      We have just read a few cases that illustrate the concept of legality in terms of the legal institutions that define crimes, the importance of notice, and the dangers of vagueness. Legality, however, goes beyond these somewhat procedural issues to implicate questions of substance: what conduct can a just society legally punish in the first place? Our next case, Lawrence v. Texas, grapples with this question.
  2. 2 Show/Hide More II.B. Actus Reus
    Original Creator: Jeannie Suk

    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.

    1. 2.4 Show/Hide More II.B.i Acts v. Omissions
      Original Creator: Jeannie Suk

      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.

      1. 2.4.1 Show/Hide More Pope v. State
        Original Creator: Jeannie Suk
  3. 3 Show/Hide More II.C. Mens Rea
    Original Creator: Jeannie Suk

    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?

    1. 3.9 Show/Hide More II.C.i Strict Liability
      Original Creator: Jeannie Suk

      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?

      1. 3.9.3 Show/Hide More State v. Phillips
        Original Creator: Jeannie Suk

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