CRIMINAL LAW OUTLINE RACHEL BARKOW SPRING 2014 TABLE OF CONTENTS I. Introduction A. The Criminal Justice System in the US B. The Role of the Prosecutor C. The Role of the Jury D. What to Punish? E. The Justification of Punishment II. Building Blocks of Criminal Law A. Legality B. Culpability and Elements of the Offense 1. Actus Reus/Omissions 2. Mens Rea a) Basic Conceptions and Applications b) Mistake of Fact c) Strict Liability d) Mistake of Law and the Cultural Defense III. Substantive Offenses A. Homicide and the Grading of Offenses 1. Premeditation/Deliberation 2. Provocation 3. Unintentional Killing 4. Felony Murder 5. Causation B. Rape 1. Introduction 2. Actus Reus 3. Mens Rea C. Blackmail IV. Attempts A. Mens Rea B. Actus Reus/Preparation V. Group Criminality A. Accountability for the Acts of Others 1. Mens Rea 2. Natural and Probable Consequences Theory 3. Actus Reus B. Conspiracy 1. Actus Reus and Mens Rea 2. Conspiracy as Accessory Liability 3. Duration and Scope of a Conspiracy 4. Reassessing the Law of Conspiracy 1 C. Corporate Criminal Liability VI. General Defenses to Liability A. Overview B. Justifications 1. Self Defense 2. Defense of Property 3. Necessity C. Excuses 1. Insanity 2. Expansion of Excuses 3. Duress VII. The Imposition of Criminal Punishment A. Sentencing B. Proportionality 2 INTRODUCTION Criminal Justice System in the U.S. I. Mass Incarceration and its Causes and Consequences A. Mass incarceration • Massive in terms of total numbers • Massive in terms of disproportionate impact on people of color B. Causes 1. Tough on crime policies • Examples of these policies: • Policing, arrest, charging, and convictions • Longer and mandatory sentences • Three-strikes laws and other recidivism laws • Federalizing crimes • What led to these policies? • High crime rates, especially the homicide rate • Actors with an interest in the system being like this • Private prison industries (for-profit systems) that make money by putting people in prison • Voters with an interest in these issues + anyone who doesn’t want people in prison voting • Victims and victims’ families • Death penalty abolitionists who advocate for life without parole as an alternative • Rural communities for whom prisons are a source of income • Prosecutors • Careerist rationales • Do-good rationale (acting in the good-faith public interest) • Limited resources • Not enough people with power on the other side • Some public interest lawyers, families, Sentencing Project, but mostly people who do not have the means to enact change or who are not politically favored • One group with power = fiscally concerned 2. War on drugs • Huge part of the federal crimes (25%) and accounts for about 30% of the state increase in crimes C. Consequences • Disproportionate impact on people of color • Roughly 33% of African Americans ages 20-29 are in some form of criminal supervision • Strained resources The Role of the Prosecutor I. Prosecutorial Discretion A. Types of prosecutorial discretion: 1. Charging sentencing 2. Selective enforcement 3. Plea bargaining B. Differing standards • ABA requires a prosecutor to dismiss charges when he or she “reasonably believes that proof of guilty beyond a reasonable doubt is lacking.” ABA recommends that prosecutors consider the strength of evidence, harm caused, possible disproportion between authorized punishment and gravity of particular crime, defendant’s willingness to cooperate in the prosecution of others, and the likelihood of prosecution in another jurisdictions. • DOJ authorizes prosecutors to bring charges when they have “probable cause” that the person committed a federal offense • Even when there is evidence that prosecutors believe shows guilt beyond a reasonable doubt, can choose not to pursue charges (often because of limited resources/the need to individualize justice/overcriminalization) C. Federal versus state prosecution 3 • Many of the important federal crimes can also be charged as state crimes. State penalties are typically much lower • Decision to refer a case for state rather than federal prosecution can be as significant as the decision whether to prosecute the case at all. D. Internal/external review • Not much internal oversight on discretionary decisions (supervisors) generally • There are few additional mechanisms other than the trial process to police prosecutorial overreaching or misconduct in bringing charges E. Inmates of Attica Correctional Facility v. Rockefeller (1973) • Facts: Inmates want to have a writ of mandamus to force prosecutors to investigate the people who beat/ mistreated the inmates during this riot. The inmates want the state to charge and prosecute, and/or the federal government. • Background: Attica is a NY prison which was the site of a massive prison riot during which prisoners took hostage of prison guards. The prisoners wanted to negotiate prison conditions. There was also a lot of racial tension during this time period. During the riot, Governor Rockerfeller didn’t go into negotiate and instead authorized government officials to try to take back the prison by force. There was a gunfight and lots of teargas, during which lots of inmates and hostages died. After the prison was reclaimed, the corrections officers beat all of the inmates. • Issue: Can the court force state or federal prosecutors to investigate/prosecute? • Holding: It is the discretion of prosecutors to decide whether to charge or not; it is not up to the court to decide when to prosecute. There is no mandatory duty the court can put upon the state/federal prosecutors to bring such prosecution. • Rationale: The judiciary can’t force the prosecutors to prosecute because it is hard to draw the line, resource constraint problems, the problem of confidential information prosecutors don’t want to disclose, etc. • Significance: Establishes a general principle that the court cannot insist on prosecution. A victim or another person also cannot go to court and make a prosecutor bring charges. Private prosecution violates American separation-of-power principles and additionally, if this were allowed, it cannot be assured that the powers of the State are employed for the public interest broadly. F. U.S. v. Armstrong (1996) • Facts: Respondents were indicted in federal court on various crack charges. Respondents filed a motion for discovery, alleging that they were selected for federal prosecution because they are black. The claim is that white defendants are prosecuted in state courts, where penalties are generally lower. • Background: The Anti-Drug Abuse Act of 1986 and subsequent legislation established a regime of high penalties for the possession and distribution of crack cocaine, which treat one gram of crack as the equivalent of 100 grams of powder cocaine. There is also a disparity between the severity of punishment imposed by federal law and that imposed by state law. The brunt of these elevated penalties fell most heavily on blacks, even though 65% of the persons who had used crack were white. • Issue: What is the appropriate standard for discovery for a selective-prosecution claim based on discrimination? • Holding: The claimant for a selective-prosecution claim must demonstrate that the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose, by showing that similarly situated individuals of a different race were not prosecuted. Respondents’ evidence did not constitute this evidence. • Not enough to show effect; have to show purpose as well. Statistics can show effect but this doesn’t show purpose. To get intent, need other forms of evidence. • Rationale: Respondents failed to identify individuals who were not black and could have been prosecuted (though this information only would have been available if discovery were ordered and prosecutors released their data on charges), and their other evidence was hearsay. Sentencing data further shows that in 90% of federal crack sentences, the convicted person was black. If discovery were ordered, this would divert prosecutors’ resources and disclose the Government’s strategy. • Dissent: Defendants shouldn’t have to prepare sophisticated statistical studies to receive mere discovery. This is a dangerous pattern and should be examined. • Significance: Really high threshold for discovery in these cases. We would need evidence on all the cases brought and then rejected. We would need numbers on rates of use of the drugs in both populations. We would need numbers on distribution. However, can’t get this information unless given discovery. Can’t get discovery until proof with this information (meaning discovery has to be done by the person seeking discovery). • Difficulty in balancing policy interests: don’t want to make it too easy for people to bring these claims, but also don’t want to make them do too much to get discovery . 4 • Post-Armstrong, these cases are rarely brought and when they are brought they are VERY rarely successful. The policy rationale is wanting to give government the benefit of the doubt unless the defendant can show the evidence that there is discrimination. This is the main rationale for having a high, demanding threshold. II. Plea Bargaining A. Plea bargaining • Can threaten someone with just about anything as long as there is evidence for the threat • If there are a range of laws under which one can be charged, a prosecutor can threaten the defendant with the law that has the highest penalty to get the defendant to plead guilty and accept the lower penalty • Almost always a range of penalties which the prosecutor can try to bring • Plea bargaining is called the “trial penalty” B. Plea bargaining v. guilty plea • Guilty plea is very prevalent; 95% of state felony convictions and 96% federal • Accepting a guilty plea waives three principal rights: • Privilege against self-incrimination • Right to jury trial • Right to confront one’s accusers • Guilty plea rate is not necessarily considered the same as the bargaining rate • Some defendants enter a guilty plea with no expectation of receiving more lenient treatment in return • Indirect inducements v.