- Aesthetic Standards

- Rules of Etiquette

- Legal Rules

------More important socially

------More formal

------Subject to procedures for deliberate change

------Backed by formal coercive sanctions

- Moral Rules

Mala in se: Things that would be wrong even if the law did not cover that area

Mala Prohibita: Things that are only wrong because the law says they are wrong (e.g. speeding)

What a certain group accepts

Shared public code

(something that is fine in Brazil is not fine in USA)

Things that are wrong in any group standard (e.g. needless killing and torture)

This category can include positive morality as well

The universal morality everyone agrees on

The rightness or wrongness of an action depends solely on the goodness or badness of the consequences

Ethical Egoism: Act is right if it promotes the actors best interest

-------Critics

-----------Committed to al life that is morally degraded

Utilitarianism

 -- Act: act produces as much or more happiness as any other act available

 -- Rule: a defined set of rules which will produce as much or more happiness than any other set of rules

Some actions are intrinsically right or wrong regardless of their consequences.

Divine Command Theory: An act is right if it is obedient to God's command/will

--- Problems

-------Is an act right because God commands it? (arbitrary) or does God love something because it is right (God is just an enforcer)

Kantian Theory: Treat others always as an ends-in-themselves, never just as a means to your own ends

There should be no assignment of criminal liability without

1) An overt, voluntary action against the law (actus reus)

2) A guilty mental state (mens rea)

3) An appropirate connection of '1' and '2'

Ignorance of the law is no excuse

- The Principle of Legality modifies this principle

        - Ignorance of fact can excuse a crime

        - Citizens must have access to the law

Traditional Defenses

1) there is no way to know whether or not someone is lying about no knowing the law

2) the law is an expression of the public morality, so one should know that something is illegal, even if he does not know the specific law.

Crimes of being rather than doing. You perform forbidden acts without any mens rea

addiction

ugly man

alcoholism

Robinson v. California states that one cannot be punished for a status which is something, that is genrally, involuntary... I believe

A legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship to the person who did act negligently.

- Example: a railroad watchman at a train station is posted in order to warn the men when a train is coming so no one gets hit. If he misses a train and someone dies, both he and the foreman who posted him are sent to jail. Each death is automatically five years.

the essence of the crime of attempt is that the defendant has failed to commit the actus reus of the full offense, but has gone past the stage of preparation. The big question with this law, is 'how close do you have  to come to committing an act, for your actions to become illegal' 

- you can be punished for attempted murder or attempting to rob a bank.

-"Inchoate" crimes:  Crimes of attempt, conspiracy and solicitation - i.e. the crime of preparing to commit another crime. No harm has yet been committed, but the point of regulating these actions is to prevent future harm.

Knowledge of circumstances plus foresight of consequences

absence of excusing conditions

There was further intention behind the action than was accomplished. You had the intent to do more than you did.

Example: You assault someone with a hammer. You do not just want to assault them, you also want to kill them.

You intentionally performed the act in question with no further aspirations to do any further harm.

Example: You want to assault someone with a hammer and you do.

A person can sometimes be held liable for unintended consequences of intended actions.

Example: You shoot into a crowd with the intent to kill your ex-lover. You end up hitting the person next to your former lover. The intent of the crime will be transferred to the victim. You cannot claim accident just because you shot the wrong person.

Doctrine of Constructive Intent

If one has the substantial certainty that the result of committing a certain action will bring some result, he is responsible for that result 

You want to beat someone to within an inch of their life with a crowbar to the head, but you accidentally kill them. You will be prosecuted as if you intended to kill them because there was a high likelihood that death would result from your actions, even though you might have had no intent to kill them.

Conditional Intent

Conditional intent was ruled by the Supreme court to be the same as specific intent. This is when you will cause a harm if someone else does, or does not, do something.

Example: A carjacker will only shoot the victim if he or she will not give up his or her vehicle.

Conscious disregard of a substantial and unjustifiable risk. You knowingly do something which is dangerous to other people and you do not care or have any social purpose to excuse your reckless behavior. There is, however, no intent to harm others.

Example: You drive 50mph in a residential neighborhood... where a blind kid lives... and there are puppies, many puppies.

Held liable regardless of mental state. Also known as liability without fault

1) does not need clear mens rea

2) Held liable for an offense even if you, in your mind, are legally innocent

3) Even if you didn't know you were committing a crime and don't want to harm anyone else

Includes

1) Negligence Liability

2) "Tough" Liability

3) Strict Liability

negligence is defined as failure to take reasonable care, culpable carelessness

1) occurs when we don't foresee the harm that we could cause

2) does not involve a sense of not caring about others

--it can be avoided by taking resonable care

-- Morally important difference. It is worse when a person foresees consequences and just doesn't care (I believe this is called recklessness) There is less punishment, I believe, for negligence as opposed to recklessness

Holding you liable for something, even if you had no mens rea. Also known as liability without fault. This denies traditional excuse

1) when you behave carelessly you are still punishable

2) does not require culpable carelessness

Includes

- Public Welfare and Regulatory Offenses

------ Food and Drug Offenses

- Basic Offenses

-----Sexual Crimes

-----Felony Murder

Negligence

Failure to take reasonable care (which the ordinary man of reasonable prudence would take); these actions are termed as culpable carelessness

 - even if you do not recognize the risk involved, you can still be held accountable

 - in the criminal law the negligence must be gross (dangerous acts committed with extreme carelessness)

What is reasonable varies under the specific circumstances

Variables

1) Level of risk of serious harm to which we expose others

2) Social importance of the object to be attained by risky activities

- The reasonable man of ordinary prudence is the measuring stick

- If a person is blind, his reasonable man is also blind.

- Though the reasonable man is always of average intelligence and judgement, those in specialized positions are always held to a higher standard (banking, law) 

Palsgraf v. Long Island RR Co.

Case Background: Two train officials try to help a man onto a train. The package he is carrying, which contains fireworks, falls and explodes. Equipment falls on Mrs. Palsgraf who is standing a ways down the track

Court: Agreed no reasonable man could have foreseen what happened. The majority said that the RR was only negligent toward the man with the package (would only go as far as prop. damage). The Dissent stated that you are responsible for any harm which results from your actions

Any harm caused by your carelessness is your fault.

The liability for the injury should fall on the negligent party, or the person at fault. The liability must fall on someone, and it must be the negligent one because it's not fair for the person who as been harmed by your carelessness to bear the cost of the injury themselves. But for your carelessness they would not have been injured.

Ø  When an action involves negligence, there is always something which could have been easily done to avoid it. Therefore, the negligent party is at fault and should have to bear the costs of the harm he has caused.

Banking

pollution

food and drug (US v. Dotterweich)

liquor

et al.

Certain Sexual Crimes

statutory rape (Regina v. Prince)

Bigamy

I believe this includes all crimes against individuals

Dotterweich, the president of a pharmaceutical company. He was charged with entering mislabeled drugs into interstate commerce. He had no idea that the composition of the drugs had been changed and only chemical analysis could have told him. Dotterweich was held personally responsible for the mistake

Majority Opinion: It is for the greater good that Dotterweich is punished for it will encourage others to be careful.

Minority Opinion: There is no indication that Dotterweich knew about the adulterated drugs. it is a fundamental tenant of AS law that guilt be personal. There is no clear precedent for charging a person in Dotterweich's situation with vicarious liability. Only Congress has the power to decide situations of vicarious liability (I think)

What you did was the best thing to do in the circumstances

self-defense

defense of others

defense of property

consent

necessity

What you did was bad, but you should still be left off the hook

Mistake

Ignorance

Accident

Duress

Provocation

Insanity

Entrapment

Immaturity

Two categories of excuse

1) "I didn't mean to": act was unintended and reasonable

2) "I couldn't help it": actor was not in control (or full control) of choice of action

Note: Mistake of law is not an excuse. Mistake of fact can sometimes be an excuse

Relevant only after liability has been determined. This might lessen the sentence of the guilty party.

strong temptation

efforts by the criminal to diminish harm

syndrome based defenses

Conscious decision to not learn the truth in order to avoid criminal prosecution on the basis of lack of the adequate mens rea.

These defenses have typically not succeeded as courts point out in cases such as the transportation of illegal substances, that the person should have known

A defense of insanity is possible if at the time of the crime the defendant was suffering from a defect of reason

- This defect of reason arose from a disease of the mind

- Due to this disease the defendant either:

       - didn't know the nature or quality of the act

       - didn't know the act was wrong

These rules regulate less of a defect of knowledge than they do a lack of control

A defense of insanity is possible if:

the defendant had a mental disease or defect which caused in the defendant either:

- a lack of capacity to appreciate the nature, quality or wrongness of an act

- a lack of capacity to conform his conduct to the law

This is a possible excuse and it entails a temporary loss of control -- whereas a perinant loss of control would be considered insanity. The court must asses the defendant's mens rea in the light of the challenging actions of others

May be used to get a lighter sentence, but it hardly ever gets the case dismissed

the actions which caused the defendant to break the law were done with a fear of injury.

similar to a plea of guilty because it admits partial culpability. It could lead to a conviction with a reduced charge

- In order for an act to be punishable it should have some moral guilt associated with it.

- Moral culpability is essential to crime

The only legal purpose of a criminal justice system is to punish immorality

- if an act has moral guilt associated with it, that is sufficient for punishment no matter what the consequences are.

- The point of retributivism is to give people the punishment they deserve because they deserve it, and for no other reason

--- if the world were destroyed tomorrow we should execute the criminal today - Kant

Hart's theory

The only legitimate purpose of a system of criminal justice is to promote the general welfare (i.e., happiness).

(1) A gain in total happiness is necessary for punishment to be justified.

(2) A gain in total happiness is sufficient to justify punishment.

(3) The amount and kind of punishment which is justified is determined solely by what best promotes total happiness. - Punishment causes unhappiness to the criminal so to be just it must create a greater good. - Could only pretend to punish criminals but instead send them to an island – would make families and criminals happy. - Allows punishments that seem sever (killing family) or limit those who are punished (those who are unpopular)

people punished are able to choose their fate beforehand because they know what will happen to them since punishment is applied equally to all who commit the same crime under the same circumstances.

Hart

-the point of having excuses is the fact that we get to chose the direction our lives take

-strict liability denies this choice

- Excuses are avenues of escape for dangerous people (there is not difference between the insane and the socially maladjusted)

- This will act as a special deterrence

- Goal is to prevent social harm

- Fault and mens rea should not even be considered

Problems

- There is an intrusion into our lives and characters (the law will look for those most likely to commit crimes)

Objection: Strict Liability is inconsistent with the aims of the criminal law

Response: SL will reduce the number of reasonable mistakes because people will be extra careful

Objection:SL runs counter to widely accepted standards of criminal culpability

Response: 1)There is not liability w/o fault because people were in a special position of control. 2) the fault of these people does not incorporate mens rea, only a failure to take adequate care 3) Similar to negligence liability which we all like

-- Cannot be avoided by lack of mens rea

1)negligence liability: avoided by taking reasonable care

2) "tough liability": avoided by taking extraordinary care (there are all of the advantages of strict liability, but none of the detractors)

3) Strict liability: no amount of care will avoid it

Conditions for the imposition of tough liability

1) the activity regulated must be highly specialized

2) the End advanced by the statute must be important

3) the individuals held liable must be in special positions of control over the activity

4) The punishment assigned under the statue must be proportional to the fault involved

-- genuine strict liability is never justice, only tough liability of the lowest order

Perfect Duties: One which must always be carried out. This includes the duty not to harm others or break into a murderous rampage. This duty basically protects the rights of others (like the right of others not to be harmed). Normally a postive duty.

Imperfect Duties:One which does not always have to be carried out and can be subject to exemptions such as the duty to help the poor. This duty can be carried out at the individuals discretion because it does not corrolate to the rights of others (any homeless man on the street does not have a right to your money). Normally a negative duty.

typically perfect duties are enforced by law, while imperfect duties are not

Positive Duties:Duties which involve actions in order to comply with an obligation

Negative Duties: Refraining from some action

Libertarians sometimes use this distinction as the line which cannot be crossed in the law. On cannot have positive duties.

Duty: Basic obligations and duties which must be performed

Supererogation: acts which exceed what is normally morally required

1) general criminal liability for failure to perform non-perilous rescues

2) Restricted Criminal Liability

3) Civil Liability for failure to rescue

4) Compensation

5) Legal Immunity for Rescuers from Civil or Criminal Liability

Punishment for failing to rescue as stranger regardless of special relationships as long as performing the rescue would not involve substantial threat to the rescuer

-advocated for by Harris an partially by Woozley

Liability would be limited to providing compensation to the person or family for failing to help

Criminal punishment would not be permitted

Background: Jones was tried for involuntary manslaughter of Anthony Lee Green. She had taken on the children for her friend Shirley Green. One of the children died as a result of malnutrition while in her care, and they were found in deplorable conditions by two gas inspectors.

-- Higher court said that the lower court had to inform the jury that they were deciding whether Jones had a legal, rather than moral, duty to care for the children.

-- Clarified an earlier decision in People v. Beardsley. The court defined four situations in which failure to act may constitute a legal breach of duty

- Where a statute imposes a duty to care for another

- Where one stands in a certain special relationship with another

--------------Status relationship (parent, spouse)

--------------Where one has assumed a contractual duty to care for another

--------------Seclusion relationship

Decision: Reversed and Remanded

Is there a moral duty of rescue?

Utilitarian Position -- Harris

There should be a moral duty to rescue, because by rescuing others, the amount of happiness within a society increases dramatically.

If there is the choice between saving someone who you love and saving two other people, you should choose to save the two people

Is there a Moral Duty to rescue?

Libertarian Position -- Mack

We have no moral duty to rescue a stranger

Requiring people to rescue someone is a serious infringement on a person's personal rights. Libertarians traditionally hold that individual rights are sacred and infringement upon them is a gross overstepping of government bounds

The government should not attempt to regulate morality

If the government tried to force us to rescue one, what is to stop them from forcing us to rescue everyone?

Is there a Moral duty to Rescue?

Liberal Position -- Woozley

The liberal position is a compromise between the utilitarian and the libertarian.

The best way to maintain GS laws is to make Samaritans legally liable for

1) easy rescues

2) Special Position

3) Minimal cost

-- if there is a person in a situation of danger and you are the only person who can rescue them, then you have a special relationship with the victim and must rescue them.

the cause of an event is that 'but for which' the event would not have occurred

If this had not happened, this would not have occured

Hart and Honore on Omissions

an omission is a cause only when it is abnormal in the circumstances

- something made the difference between what normally happens and what actually happened

- an omission can be a cause if the omission departs from what normally happens

- The moment that we realize that the harm to human beings could have been prevented we are entitled to see the failure to prevent it as a cause to the harm

Person X's failure to do act A, caused consequence B where:

----- X could have done A

----- A would have prevented B

----- and either:

-------------- A is expected or required of X or

-------------- B involves harm to human beings

- Harm can occur through some expected relationship

- non-actions can cause death

- this argument is fairly utilitarian, though Harris does not recognize it as a utilitarian argument

1) our failure to prevent human harm (where we can) causes that harm

2) We have a duty not to cause harm

3) Therefore, we have a duty to prevent human harm (where we can)

4) Therefore, since failure to prevent human harm is a kind of violence toward others (and the law must prohibit violence). The law ought to compel us to prevent human harm (where we can)

act 'A' is expected of person 'X' if either:

                        (1) X usually does A, or

                        (2) X is morally required to do A

1. We have a duty to prevent human harm
2. we expect others to prevent human harm
3. We have a duty not to cause harm
4. Therefore, we have a duty to prevent human harm
5. Therefore, since failure to prevent human harm is a kind of violence toward others (and the law must prohibit violence), the law ought to compel us to prevent human harm

Add (where we can) to all

Basically: rescue as much as you can, however you can

1. Duty v. Supererogation
2. Unfairness: it is likely only one bad Samaritan will be held accountable
3. diminishes virtue of the rescuer
4. slippery slope
5. erodes personal and civil liberties

- we have moral duties to help strangers

• Mack says this is a bold claim on our morality.
• We do not have any duty to help others who we have no relation to or did not harm

We can be taken to cause any harm we fail to prevent. We should not cause harm to other people, so we must prevent harm

Mack Response

• our failure to prevent harm, does not cause harm.
• Even if we had not been there, the same thing would have happened
• If person A gets shot, he did not die because I did not stop him from getting shot, he died because he was hit with a small projectile traveling at a high velocity

uses claims about moral theories to justify causation claims

Mack Responses

• How does there being a moral duty change anything?
• we have no duties to strangers unless we cause their peril

The only legitimate purpose of a system of criminal justice is to punish immorality (wrongdoing)

1. moral guilt is necessary for punishment to be just
2. Moral guilt is sufficient to justify punishment regardless of the consequences
3. The amount and kind of punishment which is justified is determined solely by what fits the gravity and nature of the moral wrong

- This theory is not arguing for revenge, it is only arguing that the punishment should fit the crime and that those who deserve punishment should be punished while those who do not, should not be punished

-Kant: If the world is ending tomorrow, kill the death row inmate today

- Hammurabi's code: eye for an eye

Problems

• How do we punish those who have done nothing morally wrong? (traffic violation)

The only legitimate purpose of a system of criminal justice is to promote general welfare (i.e. happiness)

1. A gain in total happiness is necessary for punishment to be justified
2. A gain in total happiness is sufficient to justify punishment
3. The amount and kind of punishment which is justified is determined solely by what best promotes total happiness

• does not matter what the criminal deserves, only what generates the most happiness
• Punishment makes the criminal unhappy, but it will make others happy. Punishment is only just when the happiness outweighs the unhappiness
• Punishment is a deterrent to other baddies and it gets criminals off the streets and into rehabilitation (this is happiness)

Problems

• Why not punish the innocent
• family members
• sever penalties for small crimes
• pretend to punish
• torture

Hybrid Theory of Punishment

Hart

Tries to combine the good aspects of utilitarianism and retributivism without taking their problems

• Law as a Choosing System. People chose when they commit crimes and when they don't. The law is clearly defined so people know what they will get when they commit a crime
• the general aim and practice of this system is deterrence
• punishment should be distributed to criminals in a roughly retributivist manner

1. No deterrent value
2. Juries won't convict
3. Possible conviction of the Innocent
4. Unequal Treatment
5. Shows disregard for human life
6. Religious Arguments

Mill's Responses

1. Death Penalty prevents convicted felons from repeating their crimes and it deters (in society) others from following in their footsteps.
2. Should be careful to limit it to the punishment of those who committed the 'most atrocious crimes' since otherwise people will hesitate to enforce it and it will lose its effectiveness
3. This is an acceptable loss. We will get more of the dangerous people
4. There will be a low occurrence of this with our legal procedures (esp. after the Furman case even though this had not happened yet). Also something else...
5. Shows a greater regard for innocent human life when we kill murderers
6. execution is less cruel than the alternative of life imprisonment with hard labor
7. An appeal to autonomy, the impt. of being free to avoid punishment by refraining from crime

Racial bias must clearly be shown in a specific case. General racial bias is not enough to sway sentencing or decisions.

How can we tell there is a racial bias:

• racist remarks made or disproportionate sentencing
• Though there is a clear racial bias in the cases in which the death penalty is sought

There is nothing wrong with punishing McClesky. The fact that a white person might have gotten a lesser sentence has no bearing. Unless the death penalty is shown to be inherently wrong, there is no problem with punishing McClesky.

The court considered three cases. One for rape and two for murder. They ruled that the imposition of the death penalty in these cases constituted cruel and unusual punishment

• Each justice delivered their own opinion. Only Justices Brennan and Marshall were against the death penalty under any circumstance
• Most concentrated on the arbitrary manner in which the death penalty was applied; esp. in regard to race

Ruling extremely unclear: Three interpretations

1. death penalty is unconstitutional on 8th amendment grounds
2. death penalty is only constitutional if it is made mandatory for certain crimes
3. The death penalty is constitutional if the discretion of judges and juries are limited by safeguards

This case invalidated the use of the death penalty in rape cases

A punishment is cruel and unusual if:

1. it degrades human dignity (as in torture or grossly disproportionate punishment)
2. It is inflicted arbitrarily
3. It is rejected as wrong or unjust by society
4. It is unnecessary or ineffective 

Mill's Harm Principle

the sole reason for which society may interfere with the conduct of an individual is the prevention of harm to others.

Rules out:

(1) Paternalistic laws -- where society uses the law to prohibit your harming yourself. We prohibit the use of a motorcycle without the use of a helmet. Why can't we prohibit your choice to eat KFC every night? These laws invade the private sphere (and are totally the product of the use of Christian morality in the United States. My rant)

(2) Moralistic laws -- where society prohibits (otherwise harmless) acts which it sees as immoral (incest, consensual sodomy)

1)   Violations to Basic Interests

a.   Life, health, liberty – Prohibitions on murder, theft, and rape

2)   Offenses to Sensibility

a.   Acts that are annoying, disgusting, inconvenient – Public nudity laws, public drunkenness

There is a question as to whether the offensive person should change his actions or the offended person should change his

• Impairments to Public Welfare
• Violations of Government Interests

1)   Impairments of the Public Welfare

a.   Food and drug violations and pollution

2)   Violations of Government Interests

a.   Society is attacked through an attack on the government e.g. bribing a public official

1. Each society has a public moral structure
2. A strong public moral structure is essential to a society's continued existence
3. Society has the right to require of us what is necessary for its continued existence
4. Society may use the criminal law to secure what it has a right to require of us
5. Even private, consensual immorality endangers the public moral structure
6. Therefore, society has the right to use the criminal law to prohibit even private consensual immorality

Society has a right to regulate the morality of its citizens

1) Private Harm Principle: It is legitimate to prohibit acts which harm other individuals

2) Public Harm Principle: It is legitimate to prohibit acts which harm society as a whole (e.g. treason, counterfeiting)

3) It is legitimate to prohibit acts which offend others

4) Paternalism Principle: It is legitimate to prohibit acts which harm the actor

5) Welfare Principle: It is legitimate to prohibit certain failure to benefit others (e.g. Bad Samaritanism)

1) Standard of Universality: Offenses ought to be universal; reaction can be expected from almost any person chosen at random from the nation as a whole

2) Standard of reasonable avoid ability: People must be able to reasonably avoid the act

---- No one has a right to protection from the state when he can reasonably avoid the offensive act

---- For those acts which can not be avoided, the state should protect the people

Attitude Dependent: A cultural (or belief)  constructed offense. e.g. public nudity (Americans are such prudes)

Natural Offensiveness: Something that is offensive no matter what your belief system or culture is e.g. the smell of rotting sewage

Conscientious: There is a purpose to your offensiveness. You do something for more than purely shock value. e.g. F*** the Draft during the Vietnam war

Non-Conscientious: You do something purely for shock value. Or, I believe, you do not realize what you are doing is offensive

Three-Step Test

1) Would the average person, applying local community standards, find that the work, taken as a whole, appeals to prurient interests?

2) Does the work depict or describe, in a patently offensive way, sexual conduct (as described by state law)

3) Does the work, taken as a whole, lack serious literary, artistic, political, or scientific value?

-- If the answer is yes to each of the three reqa the work is obscene, and it is not legally protected by the first amendment. Its production and distribution can be legally prohibited.

There is a duty to rescue if

1) the rescue is easy

2) The rescuer is in a special position to rescue

3) The costs of rescue are made minimal

Triggerman Rules

- only the person who actually pulled the trigger (killed the person) can be executed. Accomplices cannot be executed

Executing the Retarded

- Perry

------executing the retarded does not violate the eighth amendment

-Atkins

-------executing the retarded does violate the eighth amendment

Underage Killers

- Standford

---- 16 and up are eligible for execution

- Roper

---- 18 and up are eligible for execution

The consequences of everyone acting in for their own self interest (ethical egoism) results in a total loss in welfare for everyone

If both confess = 10 years each

one confessses = He gets 0 years, other gets 50 years

no one confesses = each gets 6 months

Neither can trust the other not to confess