Elements of a Just Punishment in Criminal Law

Elements of a Just Punishment

A. Legislative Definition of Crime: Idea of Legality

·         Legality Principle: No punishment w/o law. The court’s job is to enforce law and legislature’s job is to make law.

·         Question: How much can courts change the law? (Make it retroactive? What if the law is too vague?)

1.  Retroactivity/Fair Notice

·         Keeler and Bouie prohibit retroactive active expansion as a violation of the D.P. clause (unforeseeable). Requires advanced specification by the legislature, with adequate clarity.

·         Rogers makes small exception in advanced specification--allowed retroactive expansion as long as not “indefensible and unexpected”

Keeler v. Superior Court CA 1970 p146

·         Ex-husband sees pregnant ex-wife and attacks. Fetus delivered stillborn with a fractured head.

·         Is fetus “human being” for purposes of murder statute?

·         Legislature of 1850 intended murder to refer to someone born alive, not feticide.

·         Even if we did count feticide as murder, we couldn’t make it retroactive.

·         Jurisdictional: no common law crimes in CA, so power to set crimes rests only w/ legislature

·         Constitutional: retroactive denies due process b/c no fair warning of what is a crime (unforeseeability problem with ex post facto laws)

·         Relies on rule from Bouie – When is an enlargement foreseeable? African Americans can’t be arrested for trespass for sitting at lunch counter when crime was only to get served at a lunch counter (lack of notice of crime violates D.P).

·         Point: changing law would require: 1) advance specification 2) by the legislature 2) with adequate clarity

Rogers v. Tennessee US 2001 p150

·         D stabbed victim, who died more than a year and a day after the stabbing.

·         Tennessee followed common law rule that victim must die in year +1 day to be murder.

·         But SCOTUS allows retroactive abolition of this rule, upheld conviction, so long as court’s decision is not “unexpected and indefensible.”  Wide, growing consensus among states vs. very controversial issue in Keeler

2. Void for Vagueness/Fair Notice/Different Standard for Antitrust etc.

·         Unconstitutional, b/c statute to vague to give adequate notice what is a crime—D.P. violation

A statute must: (1) provide adequate notice of what conduct is forbidden, and (2) sufficiently constrain the discretion of law enforcement officials. Plus, examine whether those concerns are implicated by the language of the statute, as applied to this case.

·          

Papachristou v. City of Jacksonville US 1972  (Vagrancy Laws)

·         SCOTUS struck down broadly worded vagrancy ordinance because it failed to give fair notice of forbidden conduct, and it gave police “unfettered discretion” in enforcement.

·         The D’s challenging were all racial minorities, and evidence that enforcement was racially disparate.

City of Chicago v. Morales US 1999 p154

·         Ordinance that prohibited 2+ people loitering with no apparent purpose in public places were police suspected at least one person was a gang member, and group failed to obey order to disperse

·         overturned for being unconstitutionally vague, violated D.P., arbitrarily restricts liberties. Also gives too much discretion to police, lacks guidelines

·         Some minority communities had actually wanted this to help with the gang problem. SCOTUS invited Chicago to revise the statute and try again.

How to determine is too vague?

·         Nash v. US: convicted of “unduly obstructing trade,”  but court is more comfortable with this vagueness than in Papachristou

·         Does law regulate favored activities; liberties everyone likes

·         Is it possible (w/o excessive costs) to avoid coming to close the line? (Anti-trust in Nash, can always consult lawyer).

·         Is imprecision likely to be abused by those charged w/ enforcing the law? Antitrust laws v. beat cop?

·         Does statute enforce / deal with an important social problem?

·         Are there better alternatives—i.e. was it poorly drafted by the legislature?

Rule of Lenity

·         Rule: if there is ambiguity in the statute, rule in favor of the ∆,

·         1) Look at the text à if it’s unclear, apply lenity 2) Look at the text, legislative history, purpose, etc.

·         Not commonly used, a last resort

McBoyle v. United States US 1931 p138

o    D was transporting an airplane he knew was stolen.

o    Prosecuted under National Motor Vehicle Theft Act, “…or any other self-propelled vehicle not designed for running on rails”. Vague—does this apply to airplanes?

o    SCOTUS reversed conviction under lenity rule, statute strictly construed statute to apply to cars.

B. Act Requirement

Actus Reus = commission of a voluntary act prohibited by law. Crime must include at least one voluntary act (conduct element).

MPC §2.01(2) laws out things actions that aren’t voluntary (gives e.g, doesn’t define):

o   Reflexes

o   Movement during unconsciousness or sleep

o   Hypnosis

o   Something that is other than an effort or determination of the actor (catch-all)

Note: not remembering (e.g. b/c intoxicated) is not an excuse

·         Need a step more than thoughts (conspiracy or attempt)

Codgon: acquitted for killing her daughter while dreaming

People v. Decina

D who knows he is subject to epileptic seizures voluntarily (purposefully) drives a car and subsequently kills four people when he loses control of the car during seizure can be convicted of negligent vehicular homicide, even though the actual “act” that killed was itself involuntary (seizure).

·   Conduct elements: Operating a car (in a negligent manner)

·   Result element: death occurs

·   But how far back is the conduct?

Martin v. State of Alabama AL 1944 p182

·         Martin is arrested in his home, taken by cops to public highway, and then manifests drunken boisterous condition à convicted of public drunkenness.

·         Elements: Appears, intoxicated, in public, manifests drunken condition, in front of others. All elements must be voluntary.

·         Holding: statute presupposes voluntary appearance in a public place. ∆ did not appear voluntarily, so no voluntary conduct element. Note: Decina has a voluntary conduct element of driving the car.

·         MPC note: requires “a voluntary act,” so not every element needs to be voluntary and M could be convicted on another conduct element like manifest drunken condition

People v. Newton CA 1970 p184

·         Newton is shot by police during struggle. Goes into shock, testifies he’s unconscious, shoots two officers, crawls to hospital.

·         Jury chooses to believe his testimony / expert.

·         Holding: where not self-induced (like voluntary intoxication), unconsciousness is complete defense to charge of criminal homicide. Note: CA statute specified unconsciousness is a defense, not clear in MPC

Problems AM p 8

C. Culpability Requirement

MPS § 2.02 – General Requirements of culpability p1082

·         Purposely (specific intent)

1.      Conscious object to engage in conduct or cause result AND awareness of circumstances

·         Knowingly

a.       Aware of conduct or circumstances AND practically certain that conduct will cause the result.

·         Recklessly

b.      Consciously disregards a substantial and unjustifiable risk that result will come from his conduct. (Note: Consciousness must be inferred from circumstances)

c.       Gross deviation from standard of conduct that law-abiding person would use.

·         Negligently – (Greater than tort negligence, but see Hazelwood  below)

d.      Should be aware of substantial and unjustifiable risk that result will come from his conduct. (Note: sub & unj are two separate criteria. Whether “unjustified” is up to legal system, ∆ doesn’t have to think it is

e.       Gross deviation from standard of conduct that law-abiding person would use.

(3) - Default when culpability isn’t specified is recklessness and up.

(4) - Prescribed culpability in statute applies to all material elements of the crime.

(6) – Purpose is satisfied if purpose is conditional (wanted to steal one thing, left empty-handed, still guilty of burglary)

(7) - Knowledge is satisfied by high probability.

(9) - Mistake of law - Knowledge of the law is not required as element of offense unless statute says otherwise.

1. Intro to Mental States

·        When mental state is identified for one material element of a crime, regarded as applying to all material elements

·        Prescribed culpability in statute applies to all material elements of the crime, unless obviously written otherwise. Need culpability for each element.

·         Material elements of a crime: 

o    Conduct (always needed)

o    Circumstance (def of crime may include)

o    Results  (def of crime may include)

·         Statute determines culpability, default is at least recklessness if none listed (get off if just negligent).

Problems on the MPC § 2.02 p 32

·         Exceptions for if ∏ should have known and strict liability

a. Lesser Crime Theory

Regina v. Cunningham

·         D steals gas meter from duplex to take $ inside it. Doesn’t turn off gas à women in other half of duplex nearly asphyxiates. Convicted of larceny and endangering her life by poisoning.

·         Elements: harm occurs (results), from causing poison to be administered (conduct), to a person.

·         Culpability: maliciously and unlawfully

·         Malice in case = intention to do the particular harm OR recklessness when one could foresee harm as possible consequence.

·         Court imputes culpability from lesser crime to greater crime, to find that he also “maliciously and unlawfully” poisoned women.

b. Negligence Standard

State v. Hazelwood AK 1997 p 221

·         Captain of Exxon Valdez charged for negligent discharge of petroleum

·         Difference between gross negligence (criminal) and ordinary negligence (civil)

·         AK accepts ordinary negligence for criminal proceedings (contrary to MPC—gross required)

Santillanes v. New Mexico 1993 p222

·         D cut nephews neck with knife during altercation. Convicted under child abuse statute that used negligence.

·         Holding: Criminal negligence requires more culpable mental state than civil negligence.

c. Willful Blindness

United States v. Jewell 9^th Cir. 1976 p229 (Willful Blindness)

·         D convicted for knowingly transporting marijuana.

·         Deliberately avoided positive knowledge that car was full of marijuana, although he knew about secret compartment.

·         Court finds willful blindness can still be culpable, cites MPC 2.02(7): knowledge if ∆ is aware of a high probability, unless actually believes it does not exist.

·         Rule: Most Fed. Courts give willful blindness instructions to jury only if (1) defendant was subjectively aware of high probability of illegal conduct (MPC) and (2) defendant purposely contrived to avoid learning about that illegal conduct (ostrich).

US v Giovanni (Not Willful Blindness)

·         Reversed conviction for “aiding and abetting gamblers,” b/c had to do so knowingly. Not willful blindness, b/c did not intentionally avoid checking up on the house.  Didn’t fulfill #2 (ostrich)

2. Strict Liability

S.L.—held liable w/o culpability for at least one material element of the offense

MPC recognizes in §2.05 only for statutory violations, not common law crimes

Characteristics of strict liability offenses:

·         “New” statutory offense- non traditional common law crime, have no mens rea requirement, so ∆ convicted w/o e.g. knowledge  

·         Exception: some traditional common law crimes (moral crimes) that are generally strict liability offenses, ex: statutory rape

·         Does not involve direct infringement on rights of others

·         Part of regulatory scheme – a “public welfare” offense, general public harm (malum prohibitum) vs. malum in se (wrong in itself) common law, specific harm

·         Relatively light penalty

·         Requiring proof of culpability would impede implementation of legislative purpose

·         Rule: read in culpability into silent statute if echoes common law offense, but S.L. if public welfare offense

Sum: Morrisette, Staples require culpability (common law), but Blint/Dotterweich (drugs/pharma) don’t, even though all statutes are silent.

Morrisette v. United States US 1952 p250  No SL must be knowledge

·         D goes onto airforce practice range and takes spent bomb casings that had been there for 4 years and sells them.

·         Convicted for “knowingly converting” government property.

·         Important that theft is common law crime, which has traditionally required mens rea

·         Holding: Omission of intent from statute will be construed to require mens rea.

Staples v. United States US 1944 p254 No SL must be knowledge

·         D had unregistered rifle, and trigger mechanism filed down so it could fire automatically.

·         D testified he didn’t know gun would fire automatically.

·         Firearms statute is silent on mens rea consideration, but based on common law.

·         Holding: Unlike registering hand grenades (cf. United States v. Freed, knows that grenades are potentially dangerous) or drugs, there’s history of gun ownership in USA—don’t want to criminalize seemingly innocent activity (***not about common law, about being common)

·         Silent statute requires D knew he possessed a machine gun. Unthinkable Congress intended SL.

United States v. Balint US 1922 p248 S.L

·         D were indicted for selling derivatives of opium and coca, violating narcotics act.

·         D’s said they didn’t know they were selling prohibited drugs.

·         Holding: proof of knowledge isn’t required by the statute (convicted-SL)

·         Every person dealing drugs must ascertain at his peril if drugs are prohibited.

United States v. Dotterweich US 1943 p249  S.L.

·         Pharma bought drugs, repackaged, & shipped to physicians.

·         On 2 occasions, manufacturer’s labels were in error, and therefore Dotterweich’s.

·         Balancing hardships, Congress chose to put risk on those who could prevent the problem rather than the innocent public—SL b/c no mens rea required in statute

3. Mistake

ignoratia lexis non excusat – ignorance of the law is no excuse

General intent: knowing shown by performing act (conduct) (e.g. possession, rape, theft—no result element?)

Specific intent: state of mind defines the crime

Mistake like S.L. doesn’t require culpability to convict (when mistake is not a defense).

MPC §2.04 allows mistake of fact or law if:

·         ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence required for material element of offense.

·         Law provides that ignorance or mistake constitutes a defense.

(3) Belief that conduct is not an offense is a defense (D must prove by preponderance of the evidence) if:

·         Statute has not been published or reasonably made available.

·         D acts in reasonable reliance on official statement of law.

**Alternative is NJ rule: a belief that conduct is not illegal is a defense when:

·         Law had not been published or made available

·         Actor was relying on official advice.

·         Otherwise diligently pursued all means available to ascertain meaning of offense and in good faith concludes his conduct is not an offense using reasonably prudent person standard. (similar to Germany)

·         ***But no cases where this defense has been successfully used

Arguments about tough mistake standards:

·         PRO: Slippery slope – everyone would plead mistake and law would become subjective (what you thought the law was is fine)

·         PRO: Encourages people to learn the law.

·         CON: Gives more incentive to make effort to learn the law if trying to learn is a valid defense. Convicts w/o culpability

Mistake	Case	MPC Provision
Fact:	Olsen (strict liability) Lopez (strict liability) Hernandez (exculpatory mistake)	§2.04(1)
Legal Circumstance	Woods Smith	§2.04(1)
Governing Law/Rule	Fox	§2.02(9)
Exception (Official Advice)	Hopkins Albertino (excused)	§2.04(3)

a.  Mistake of Fact

·         Mistake as to a circumstances element (e.g. age of victim in statutory rape)

·         If no culpability mentioned, assume recklessness (was it a reckless mistake of age?)

·         Often gets ∆ off, b/c not the requisite culpability (not reckless mistake)

People v. Olsen CA 1984 p239

·         Is it reasonable to mistake a victim’s age as a defense to lewd or lascivious conduct <14?

·         Hernandez : belief that victim was >18 was an adequate defense (but minority rule)

·         However, Hernandez doesn’t apply: Other part of statute saying good faith offenders are eligible for parole earlier indicates legislature didn’t intend good faith to be a valid defense.

·         Lopez : belief that minor to whom sold pot was over 18 was no defense (selling pot to minor) b/c would have been a crime regardless, defense just would have reduced sentence. No defense.

·         Conviction affirmed

Garnett v. State MD 1993 p245 – Majority rule

·         20 yr. old mentally impaired man has sex w/ 13 yr. old.

·         D shows evidence that victim & her friends represented her to be 16. Trial court excluded that evidence, saying it was a strict liability offense.

·         Court does not consider reasonable belief that victim was over 14

·         Holding: Plain language and legislative history make clear that statutory rape is strict liability crime.

·         Up to legislature if they want to change it.

Notes: The traditional insistence on imposing strict liability for mistakes about age is beginning to erode.  More than 20 states now permit a defense at least under some circumstances, like when the parties are close in age or victim is over 14.  However, nearly all require the mistake to be reasonable, and half of states still do not permit a mistake defense at all.

b.  Mistake of Law

(legal circumstances & governing law)
Usually don’t need to know the law to be convicted—exceptions: when legal element in attending circumstances than one needs to be aware of (e.g. stuff belongs to someone else needed for theft).

·         Compare to notice in Keeler

Some mistakes of legal circumstance prevent in the imposition of punishment (MPC 2.04(1)), whereas mistakes of governing criminal law do not prevent the imposition of liability (MPC 2.02(9): neither knowledge, recklessness, or negligence towards whether something is illegal is required, unless otherwise stated. I.e. ignorance of the law is no defense!)

i) Mistake of Legal Circumstance

In Regina v. Smith England 1974 p273 (e.g. marriage status; legal ownership)

·         D damaged paneling & floorboards to remove stereo wiring that he had installed himself. Charged with willful destruction of property.

·         Holding: No offense committed under this statute if D honestly believes property being damaged is his, regardless of whether belief is justifiable.

·         ! This is mistake of legal circumstance : legal rule that characterizes circumstances attendant to the offense. Smith misinterpreted landlord / tenant law, not the criminal law.

State v. Woods

·         Woman goes with married man to Nevada, he gets divorced, they get married.

·         Except divorce wasn’t valid – woman is then prosecuted for bigamy

·         Hold: Not criminally liable – mistake of legal circumstance

ii) Mistake of Governing Law

General Rule:

State v. Fox ID 1993 AM p37

·         Fox charged w/ possession of ephedrine – controlled substance in Idaho. Bought it by mail order from another state.

·         Culpability was knowledge of possession (conduct), not knowledge of the law

·         Holding: Offense requires only general intent (knowing shown by performing act vs specific: state of mind defines the crime) à Fox intended to take possession of ephedrine.

·         Mistake of law is not a defense.

Cheak v. US:

S.C. “willful” in statute like knowing, letting ∆ off for not filing his taxes, b/c had to prove that he knew he had to file. (But this is strange minority case…)

·         Federal income tax that needs proof of intent for “willful” & knowledge

Exeception for Relying on Official Advice:

United States v. Albertini (reliance on official advice)

·         Protest₁ à Conviction₁ à Conviction₁ overturned by 9^th Circuit à Protest₂ & SCOTUS reinstates conviction₁ à  Conviction₂ à 9^th Cir. reverses conviction₂ on notice grounds à SCOTUS says in United States v. Rodgers existence of circuit conflicts makes review of issue and ruling against respondent reasonably foreseeable.

·         9^th Cir reversed protesting conviction, so ∆ protested again before SCOTUS convicted.

·         SCOTUS says the second protest was ok, b/c reasonably relying on the 9^th Cir

·         2.04(3)(b)(iii) reasonable reliance on an administrative order or grant of permission

Reverend Hopkins

·         Advertises himself as licensed to perform marriages in reliance on advice of state’s attorney, but then prosecuted and convicted.

·         Probably would’ve gotten off under MPC.