Comparative Criminal Law

Transcription

1 Comparative Criminal Law Introduction to American Criminal Law Dr. Aleksandar Marsavelski

2 Theories of Punishment DETERRENCE INCAPACITATION EXPRESSIVE CONDEMNATION INDIVIDUAL DESERT

3 I. Deterrence Bentham, Principles of Penal Law - punishment may not be too small or too great: 1. punishment must outweigh the profit of the offence 2. the punishment needs to be proportionate to the offence - punishment for the greater offence must be sufficient to induce the perpetrator to prefer the less excessive punishments for small offences would encourage small offenders to commit greater crimes Bentham is a consequentalist Bentham is indifferent about who punishes (state or private person)

4 I. Deterrence Bentham, Principles of Morals and Legislation - all laws have the task to augment the total happiness of the society - upon the principle of utility punishment must be used in way to exclude some greater evil - punishment should not be inflicted where it is groundless, inefficacious, unprofitable and needless problem of deterrence: under this theory it would make sense to punish innocent people

5 I. Deterrence Posner, Economic Theory of Criminal Law FINE = PUNISHMENT COST PROBABILITY OF APPREHENSION AND CONVICTION Primary purpose of this formula is deterrence this explains severe punishments for small crimes in Ancient and Medieval times as it was difficult to find the perpetrator

6 II. Individual (just) desert Retribution is a dominant theory of punishment in the U.S. Kant: punishment is a categorical imperative Even if a society were to be dissolved by the consent of all its members, the last murderer remaining in prison would first have to be executed. Herbert Morris, Guilt and Innocence There are primary rules that provide fair distribution of benefits and burdens in society the ones who have violated these rules need to be punished because they caused their maldistribution

7 II. Individual (just) desert -Michael Moore, The Moral Worth of Retribution we are justified in punishing because and only because offenders deserve it moral culpability imposes a duty to punish -HLA Hart Punishment and Responsibility (1) Punish only if voluntary commission of moral wrong (2) Punishment must match wickedness (3) Making someone suffer for a voluntary moral evil is morally good

8 II. Individual (just) desert Jean Hampton, Retributivism -criminal undervalues the victim by his crime, thus he should be undervalued retributively -the value loss produced by crime is nullified by the subordination through the punishment (similar to Hegel: punishment is a negation of crime )

9 III. Expressive condemnation Condemnation can be seen as kind of deterrence or retribution Joel Finberg, Doing & Deserving Condemnation is a fusion of resentment and disapproval shaming sanctions (Dan Kahan)

10 III. Expressive condemnation James Fitzjames Stephen: The infliction of punishment gives definite expression and a solemn ratification to the outrage people in community feel towards the criminal. Punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. Punishment has symbolic significance. It expresses a judgment that the act was wrong, and a vindictive resentment.

11 IV. Incapacitation Physically keep criminal from committing another crime. John J. Diiulio Jr., Prisons are a bargain, by any measure (NY Times 1996): Incarceration is a highly cost-effective solution to restraining known convicted criminals from murdering, raping, assaulting, etc. Incarceration costs $25,000/year per criminal. But for this, society gets following benefits: punishes offenders and expresses disapproval, teaches felons a lesson, prisoners get drug treatment and education and a thug in prison can t shoot your sister. Prisons bring big dividends even if all they do is keep criminal off the street prevents crime.

12 V. Rehabilitation Reform offenders into persons who will follow societal norms when returned to society. Punishment system resembles social work. Americans stopped believing in rehabilitation in the early 1970s

13 Main sources of U.S. Criminal Law MODEL PENAL CODE STATUTORY LAW (US Code: Title 18) SENTENCING GUIDELINES CASE LAW

14 I. Model Penal Code (MPC) Developed by the American Law Institute (ALI) in 1962 (updated in 1981) The MPC is not law in any jurisdiction of the US (although New Jersey, New York, and Oregon have enacted almost all of the MPC provisions) it has served as a basis for criminal law reforms in over 2/3 of the states MPC and its commentaries also serve to interpret US criminal law Certain parts of the MPC contain multiple options, inviting states to choose one

15 II. US Code (1926) Title 18 - CRIMES AND CRIMINAL PROCEDURE regulates federal crimes & federal criminal procedure PART I - CRIMES ( 1 to 2725) - link PART II - CRIMINAL PROCEDURE ( 3001 to 3771) PART III - PRISONS AND PRISONERS ( 4001 to 4353) PART IV - CORRECTION OF YOUTHFUL OFFENDERS ( 5001 to 5042) PART V - IMMUNITY OF WITNESSES ( 6001 to 6005)

16 Violent Crime Control and Law Enforcement Act (1994) Title XVII - Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act Megan s law (1996)

17 III. Case Law Common law systems are characterized by case law developed by judges/courts when giving decisions in individual cases that have precedential effect on future cases. Stare decisis et non quieta movere. [ to stand by decisions and not disturb the undisturbed ] - judges are bound to precedents and do not disturb settled matters No longer possible to establish a crime by judicial made law

18 IV. Sentencing Guidelines Developed in late 1970s to oppose indeterminate sentencing US Federal Sentencing Guidelines are the product of the US Sentencing Commission established in 1984 Mandatory until US v. Booker (2005) advisory

19 Sentencing Table 2012 (showing months of imprisonment) CRIMINAL HISTORY CATEGORY Offense Level I (0 or 1) II (2 or 3) III (4,5,6) IV (7,8,9) V (10,11,12) VI (13+) Zone A Zone B Zone C Zone D life 360-life 360-life 360-life 360-life 360-life

20 Sentencing Guidelines: Fines Offense level Minimum Maximum 3 and below $200. $9, $500. $9, $1,000. $9, $2,000. $20, $4,000. $40, $5,500. $55, $7,500. $75, $10,000. $95, $10,000. $100, $15,000. $150, $20,000. $200, $25,000. $250, $30,000. $300, $35,000. $350, $40,000. $400, and above $50,000. $500,000.

21 Constitutional Dimension of American Criminal Law Robinson v. California (1962) - use of imprisonment as punishment for the crime of addiction to drugs is a cruel and unusual punishment (8th Am.) Griswold v. Connecticut (1965) declared anticontraception laws contary to right to privacy (14th Am.) Roe v. Wade (1973) extended the right to privacy (14th Am.) to a woman s decision to have an abortion Lawrence v. Texas (2003) declared sodomy laws contrary to right to privacy (14th Am.) Roper v Simmons (2005) capital punishment for offenders under 18 is a cruel and unusual punishment (8th Am.)

22 General Part of American Criminal Law Crime elements = actus reus + mens rea Defenses: Justifications: self-defense, necessity Excuses: duress, insanity Inchoate crimes: attempt Group Criminality: complicity and conspiracy

23 I. Crime elements: actus reus Actus reus Commission Omission Possession No actus reus (MPC): (a) a reflex or convulsion; (b) a bodily movement during unconsciousness or sleep; (c) conduct during hypnosis or resulting from hypnosis; (d) a bodily movement that is not a product of the effort or determination of the actor, either conscious or habitual.

24 I. Crime elements: actus reus State v. Martin Martin was arrested in his home and subsequently taken onto the highway by the arresting officers. While on the highway, he allegedly manifested a drunken condition by using loud and profane language. He was subsequently convicted under a provision of a state statute that provided that Any person who, while intoxicated or drunk, appears in any public place. Reversed because his act was involuntary.

25 I. Crime elements: actus reus Jones v. U.S. (omission offences) Legal duties: 1. Statutory duty 2. Relationship status 3. Contractual duty 4. Voluntary assumption of care for another 5. Created the risk of harm

26 I. Crime elements: actus reus People v. Arzon (causation) Arzon was convicted with the murder of a fireman who had received fatal injuries when, responding to an arson that Defendant committed, he encountered a separate arson fire in the same building. No break of causal chain because Arzon should have forseen the result common law act must be the actual and legal (proximate) cause of the result MPC BUT-FOR (conditio sine qua non) + PROXIMATE Brackett v. Peters: An act is a cause of an event if 2 conditions are satisfied: (1) the event would not have occurred without the act (but-for doctrine); (2) the act made the event more likely.

27 I. Crime elements: mens rea Common law: 1. general intent (rape, battery) it refers to the act, which presumes a general intent it s important to determine: (a) whether the defendant had a reasonable mistake, and (b) whether defendant s belief is honest. 2. specific intent (1 o murder, robbery, larceny, attempt, conspiracy) he wants specific result, no presumption knowledge of the specific result is sufficient Strict liability mainly used for public welfare offences

28 I. Crime elements: mens rea Model Penal Code: 1. Purposely - he is aware & wants the conduct/result and is aware of the attendant circumstances 2. Knowingly he is aware of the conduct, result and the attendant circumstances 3. Recklessly he consciously disregards the risk + a gross deviation from the law-abiding standard of conduct 4. Negligently should be aware of the risk + a gross deviation from the reasonable person standard of conduct

29 II. Defenses Self-defense (justification) Common law elements: 1. actual or apparent threat of death or serious bodily harm 2. threat is unlawful and immediate 3. the response was necessary 4. there is an honest and reasonable belief that deadly force was necessary Model Penal Code: Self-defense is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

30 II. Defenses Departs from American law: a) State v. Rama any kind of assault is sufficient to respond with deadly force b) People v. Goetz - reasonable belief that the force used is necessary to protect oneself is sufficient No retreat doctrines: 1. castle doctrine (old common law) - there is no duty to retreat from your home (it does not exempt person from duty to take flight when attacked in residence of another) 2. true man doctrine (e.g. Tennessee v. Renner) - one need not retreat from the threatened attack even though one may safely do so

31 II. Defenses Necessity = Choice of evils (justification) MPC: -harm done < harm or evil sought to be avoided -allows necessity defense to homicide Common law injury avoided outweighs injury of the protected good -following Dudley & Stephens case, most U.S. jurisdictions don t allow necessity as a defense to homicide

32 Duress (excuse) II. Defenses Common law elements: (1) a threat of imminent death or serious bodily injury led the defendant to commit the crime, (2) the defendant had no reasonable, legal alternative to breaking the law, and (3) the defendant was not responsible for creating the threat. duress applies to crimes other than murder Model Penal Code: actor was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, if a person of reasonable firmness in actor s situation would have not been able to resist.

33 II. Defenses Insanity (excuse) 4 tests: 1. Durham (product) test - he is not responsible if his act is the product of mental desease or a mental defect 2. M Naghten (cognitive) test requires such a defect of reason from disease of the mind that he did not know: a) the nature and quality of the act he was committing; or b) what he was doing was wrong. 3. irresistible impulse test the defendant could not control his act 4. MPC (cognitive-voluntaristic concept): no responsibility if, as a result of mental disease or defect, he lacks substantial capacity to: a) appreciate the criminality [wrongfulness] of his conduct, or b) conform his conduct to the requirements of law

34 II. New Defenses? Battered woman syndrome Cultural defense Rotten social background

35 III. Attempt ACTUS REUS OF ATTEMPT: a) Dangerous proximity theory (common law) b) substantial step theory (MPC and many states) leads to an earlier stage than common law, but it recognizes abandonment c) last act theory MENS REA OF ATTEMPT: a) the kind of culpability required for commission of the crime (MPC) b) if there is a particular result as crime element, in most jurisdictions a specific intent is required (intent to complete crime)

36 IV. Group Criminality a) complicity aiding and abetting Not a separate offence b) conspiracy based on agreement separate (inchoate) offence cumulative punishments for conspiracy and completed offense Pinkerton case - conspirator is liable for any reasonably foreseeable crime that falls within the scope of the conspiracy

37 American Criminal Procedure Jury trials (6th Am. right!) hardly exist More than 90% of cases resolved by plea bargaining

38 Standards of Proof 5% 20% 33% 51% 67% 90% Shred Reasonable Probable Preponderance Clear & Beyond Suspicion Cause Convincing Reasonable Doubt Sentencing Guilt

39 COMMON LAW CIVIL LAW Structure Adversarial Non-adversarial Fact finding Jury Professional judges Guilt & Sentencing Defendant Separate decisions on guilt & sentence 1. Right of self-representation (liberalism) 2. motivated not to testify: purgery liability + avoid crossexam. One decision on guilt & sentence 1. no self-representation in serious cases (paternalism) 2. motivated to testify (no liability) 3. statements to the police can be used (under Miranda rights declaration) Parties in trial, +judge in sentencing Inadmissible (with exceptions) 3. statements to the police cannot be used Evidence Parties & judge initiative Hearsay Admissible evidence Appeal Imput review Output review New No (with exceptions) Yes (with exceptions) evidence

40 Thank you for your attention!