Background theories of law + Policy

Question 1

What is crime viewed as?

Answer 1

A wrong against all of society requiring higher culpability due to its impact on people’s lives.

Question 2

Utilitarian Punishment

Answer 2

View the world through pain v. pleasure (use the least necessary force)

Deterence: people wont commit a crime when cost is > benefit (specific and general)

Incapacitation: removing the wrongdoer stops them from doing more crime

Rehabilitation: Cure the underlying problem.

Question 3

Retribution

Answer 3

You committed a wrong and should be punished equally for what you did

Question 4

Utiliarian viewpoint

Answer 4

views those who commit crimes as mentally unhealthy – the critique is that people are privileged to weigh the risk v. reward of crimes.

Question 5

Retribution viewpoint

Answer 5

Everyone is = value, crime puts your value above others, so punishment should bring you back to =

Question 6

Pros/Cons of Common Law Crime Creation

Answer 6

Pros:
- Statutes are often ridged and do not address all the harm we want to prevent (do not define terms and rely on the courts to do so)
-Legislature represents the will of the majority, court protects the minority

Cons:
-Separation of powers
-Notice for criminals to know the risk of their acts
-Discretion: Because judges can make most things illegal, prosecutors have great leverage to induce guilty pleas
-Democratic accountability: Judges and prosecutors are not accountable to election
-Unity: there will be less unity and consistency

Question 7

Misselaneous Doctrines

Answer 7

Principle of legality: a person cannot be punished unless his conduct was previously defined as a crime

Lenity Doctrine: Ambiguity is to be resolved in favor of the defendant.

Question 8

MPC Purpose?

Answer 8

1. Unity/Predictability
2. Stop common law crime creation
3. Limited mental states to 4
4. Utilitarian focused

Question 9

Why have an actus Reus Requirement

Answer 9

1. we don’t want to punish thoughts
2. Deterrence: Cannot deter an involuntary act
3. 2. Retribution: Punish = vol and Act = invol

Question 10

Pros + Cons of omission = actus reus

Answer 10

Pros: We want people to help avoid tragedies.
Cons: (Line drawing is hard, especially with many people, Freedom, Morality, Make the situation worse)

Question 11

Pros of Mistake of Law defense

Answer 11

1. People might be able to use MOL strategically
2. It is foreseeable for there to be many non-culpable mistakes of law, because statutes are dense.
3. This may limit development in the law
4. We want to encourage people to read and learn the law.

Question 12

Cons of Mistake of Law Defense

Answer 12

1. Lots of statutes don’t criminalize obviously bad conduct.
2. Laws often have portions that are unclear or uninterpreted.
3. A negligence rule limits gamesmanship
4. A broad MOL rule will encourage clear statutory drafting.
5. Any defense can be used strategically, so how is this different
6. People who are trying in good faith to follow the law cannot be deterred, and don’t deserve retribution
7. We don’t like strict liability anymore, so ignorance of the law is an outdated concept.

Question 13

Should premeditation + deliberation be required for 1st degree Murder?

Answer 13

Pros:
1. You are more culpable if you kill with a cool head
2. Deterrence works better on people with cool heads + plus, because it requires weighing, more punishment = more weight to not commit.
Cons:
1. People who kill in a frensy are more dangerous than those who do it calculated (incapacitation)
2. Since we cannot deter those who kill in a frensy as well, we need greater punishment
3. Killing frequently in a frensy is more culpable than one time, but the degree is the same.

Question 14

Pros of Felony Murder

Answer 14

1. Deterrence: This rule deters people from committing felonies and from engaging in risky conduct while committing felonies.
2. Efficiency: It makes prosecution easier, and eliminates ambiguity about mental state when people kill while already doing bad things. Also eliminates the risk of perjury about intent.
3. Incapacitation: Felons who kill are dangerous and we should remove them from society.
4. Retribution: We want to punish the harm you did to the world rather than what might have actually been in you head.
5. Felony murder is well known = notice.
6. Agency: felons will prevent their co-felons from being violent if they are also on the hook for it.
7. Robbery that causes death is closer to murder than robbery.
8. Reverence for human life.
9. Unity of outcome.

Question 15

Cons of felony murder

Answer 15

1. Deterrence: Its hard to deter unintended conduct (see torts), but if you can, this will create an imbalance between cost/benefit.
2. Notice: Criminals may not know the law, and therefore, they will not know the risk they are assuming.
3. Incapacitation: It is not always true that people who kill during felonies are dangerous, they might just be unlucky (police trips and dies)
4. Retribution: Mental state matters, and someone who kills accidentally is less culpable than one who purposefully kills.
5. Easing prosecution is not the role of the criminal law. There is always a chance of perjury, but determining credibility is for the jury.
6. Mens Rea: this is a fundamental of the criminal system.

Question 16

Pros of EED

Answer 16

1. Focusing on the subjective mental state of the defendant may better show true culpability
2. Doesn’t blame the victim
3. Allows for a lot more relevant evidence to come in
4. Helps fix the gender critique for SHOP.

Question 17

Pros of SHOP

Answer 17

1. Narrow rule, which discourages more killings
2. Easier to litigate, because you do not have to consider all life experiences
3. Focusing on the victim may be less culpable (they kind of deserved it)

Question 18

Critiques of SHOP

Answer 18

1. Favors Male abusers, but fully punishes female survivors who retaliate.
   2). often Excludes fear, of imminent abuse
   3). Excludes cumulative provocation
   4). Only protects those who are impulsive, not simmerers.

Question 19

Pros of Complete attempts

Answer 19

1. The defendant is culpable and created a real harm to the world (retribution)
2. We want to deter this behavior both from the person and from others.
3. These individuals are dangerous and need to be incapacitated and rehabilitated.

Question 20

Pros of Incomplete attempts

Answer 20

1. At some early stages there is still culpability
2. People who commit early stages are dangerous people (incapacitation, rehabilitation)
3. We want the police to intervene and stop crimes from occurring.
4. Attempt creates fear in others (retribution)

Question 21

Cons of incomplete attempts

Answer 21

1. At some stages the risk of harm is very far away
2. We want people to think about the crimes and not commit them, punishing too early may incentives them to carry through.
3. Expanding the doctrine allows for more police intervention with innocent conduct.
4. We don’t want to punish thoughts.
5. MPC punishes attempt the same as the crime

Question 22

Pros of Pinkerton Liability (conspiracy)

Answer 22

1. Deterence
2. Capture the leader
3. Decreases Danger (one makes sure the other’s crime is less)

Question 23

Cons of Pinkerton liability

Answer 23

1. Undermines culpability
2. Minor participants are severely punished
3. We have other tools to address these situations.

Question 24

Pros of Burglary

Answer 24

• It is likely to happen at night/ least likely to be detected.
• Violence – people are likely to be home.
• Stealing wheels/out of the gas tank does not make one feel the violation of their space, rather, we are looking at if they entered an enclosure.

Question 25

Cons of Burglary

Answer 25

* We have other places we care about which are harmful and distressing * Robbing during the day will also likely result in violence.

Question 26

Problems with expanding burglary

Answer 26

1. Line drawing problems. 2. Overcriminalization (plus getting charged twice for the crime of stealing tires) 3. Undermines burglary as a species of attempt -- basically, adding robbery to every crime takes away from its big function of making people feel safe at hope 4. Increases proceutory leverage if you can add burglary to everything. 5. We want punishments that acctually fit the crime. 6. Variation -- it makes the law more inconsistent across the country. (how do people know if they are committing a burglary?

Question 27

Pros of requiring retreat for self defense

Answer 27

1. Hesitation 2. Encourages lethal conflict. 3. Whites are let off way more when they kill blacks.

Question 28

Cons of requiring retreat for self-defense

Answer 28

1. Creates hesitation. 2. Encourages criminals to commit crimes 3. Culpability issue: if a person makes a mistake about if they should have retreated, and kills, then the penalty is murder, and this should not be for a killing that was a negligent mistake.

Question 29

Critique of MPC Insanity

Answer 29

* Ambiguity in terms like "appreciate" and "substantial capacity" * Could be viewed as too forgiving, say compared with M’Naghten.

Question 30

Critique of Product Insanity

Answer 30

* Provides no guidance to juries. * Makes the insanity analysis entirely medical. * Medicine (treatment) is different from law (deciding who is responsible). * All sorts of crimes are influenced by mental imbalances (e.g., anger issues leading to manslaughter). How broad is this?

Question 31

Critiques of Control insanity

Answer 31

* Can be interpreted too narrowly, such as focused on sudden impulsive behaviors, rather than longer-term compulsions that overcome ability to control. * Can be interpreted too narrowly, such as focused on sudden impulsive behaviors, rather than longer-term compulsions that overcome ability to control.

Question 32

Critiques of M'Naghten insanity

Answer 32

* Focuses only on ability to know nature of act or wrongfulness. Does not consider ability to control behavior. * Struggles with shades of grey, like partial inability to understand act or wrongfulness (e.g., if a child kills, they may not fully appreciate death, even if the know killing is wrong. Mental illness might cause the same limits on understanding). * Forces psychological experts into false and rigid categories, which doesn’t comport with psychological analysis (focused on holistic understanding and treatment).

Question 33

Pros of inanity as an elements defense

Answer 33

* Often, mental illness will not negate the mental state but still reduce culpability. Such as based on inability to appreciate the wrongfulness of an act, or lacking ability to control. * The affirmative defense focuses on the real reasons for why someone did something, rather than shoehorning arguments into mental states. * Some crimes don’t include a subjective mental state—they’re based on what a “reasonable person” would do (or strict liability). * If mental illness is only used as a sentencing factor, there are collateral consequences to convictions that we might not want less or non-culpable people to suffer (e.g., jobs, travel, housing, licenses, education).

Question 34

Pros of insanity as an Elemental Defense

Answer 34

* We want to encourage people to exercise as much control as possible, and it’s hard to draw lines as to inability to control yourself vs. failure to control yourself. And realistically punishing people who commit crimes may send a deterrence message (though punishing people who can’t control themselves doesn’t conceptually send a great deterrence message). * Again, it’s difficult to draw lines and all the insanity tests are unsatisfactory. And there isn’t a clean psychological line between who’s blameworthy and who’s not. * At some level of severity, all crimes seem likely to be the product of mental illness (e.g., a serial killer). The line between mental illness and evil is thin. If insanity is too broad, all severe offenders would necessarily be found not guilty. * Most fundamentally, we can just handle this at sentencing. If you’re guilty, you’re guilty. But then we bring in all evidence of mental health at sentencing to determine exactly what sentence you should get, how culpable you are, and what facility you should be housed in (e.g., prison vs. mental institution).

Question 35

Mail/Wire Fraud ideas

Answer 35

* Ideas -- is the touch stone if the outcome is happily ever after? * Courts could have come out either way on this * Other enforcement (sec, torts) * Safisiaction of parties matters. * Its important to think about the whole quantity of punishment that is going to occur already -- he might never get a job again