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CRIMES: GENERAL PRINCIPLES

Crime defined by elements: (1) Actus Reus: specified form of conduct (2) Mens Rea: committed w/a particular state of mind (3) Attendant Circumstances: additional defining facts that may need to be proven

A. ACTUS REUS: a voluntary (conscious/volitional, not necessarily desirous) criminal act, either an affirmative act of an omission.

Voluntary Act:

CL: not codified in most jurisdictions, but generally consistent w/MPC formulation MPC §2.01 (1) No guilt unless liability based on conduct including a voluntary act or failure to perform act of which D is capable (omission). (2) NOT voluntary acts: a. Reflex/convulsion b. Bodily movement during involuntary unconsciousness or sleep (Newton) c. Conduct under hypnosis (some juris have excluded) d. Bodily movement otherwise not a product of effort/determination of actor, either conscious or habitual No defense: 1. “Irresistible impulse” due to temperament (Jacobs) Defense: 1. Act forced by another, e.g. police (Martin)(“Schechter”), when ct determines offense “presupposes” voluntariness. Where there are multiple elements, ct may read voluntariness into one or all (e.g. voluntarily being drunk, voluntarily being in public, or both). Can “roll back” act to which voluntariness is ascribed (e.g. drinking late at bar, called out by police for beating wife).

 Note: (1) Defines what acts aren’t voluntary, not what are, (2) “include” language implies perhaps not all acts causing liability must be voluntary, but MPC gives no examples, (3) “include” also allows prosecutors to stretch timing considerations (e.g. driver may not be responsible for injury-causing crash due to unforeseen seizure, but choosing to get in the car knowing a seizure was imminent is a voluntary act that could be criminal).

People v. Newton (CA 1970): D Huey P. Newton convicted of manslaughter, made shots after being shot himself and in state of unconsciousness. Instructions should be given in cases of “involuntary unconsciousness”; involuntary unconsciousness is a COMPLETE defense. Jacobs v. Commonwealth (PA 1888): Jacobs, man of “excitable” temperament, killed another; physician willing to testify to temperament but not allowed. “Irresistible impulses” due to temperament do not excuse liability like “insane impulses” that “destroy free agency.”

Martin v. State (AL 1944): Martin convicted of public drunkenness when police arrested him at home and took him onto a highway. When voluntary act is presupposed (e.g. public drunkenness) cannot be est. when forcibly taken into public by police to arrest. Ct. presupposing for statute (saying it implies voluntariness). Changes if public presence not voluntary but required (e.g. brought outside after row with wife). Courts can “roll back” act to which they apply voluntariness req… circumstances, e.g. placing oneself in a position where future acts will be compelled (being drunk at bar at closing time) help ct. make those decisions. 1. Causation : few states define statutorily. Both CL and MPC use 2-step actual/proximate cause determinations, but MPC “legal cause” reflects legal realism (judges/juries must rely on intuitions in determining what’s not remote/accidental) vs. CL emphasizes “objectively” evaluating foreseeability.

CL: D’s actions are a “cause” when: (1) But-for (necessary to cause harmful result when it occurred); AND (2) Proximate cause (“reasonably foreseeable”) MPC §2.03 (1) D’s conduct cause of a result when: a. It is an antecedent but for which result wouldn’t have occurred, AND b. Relationship b/t conduct and result satisfies any additional causal requirements imposed by code/law defining offense. (2) Knowledge/purpose MR: not est. if actual result isn’t w/in purpose of the actor UNLESS [legal cause]: a. Actual harm differs from that designed only b/c diff person/prop injured OR designed harm worse than that actually caused, OR b. Actual result involves same kind of harm designed and isn’t too remote/accidental in occurrence to have a just bearing on actor’s liability/gravity of offense . (3) Reckless/negligent MR: not est. if result isn’t w/in risk actor is aware of (or should be aware of) UNLESS [legal cause]: a. Actual harm differs from that probable only b/c diff person/prop injured OR probable harm worse than that actually caused; OR b. Actual result involves same kind of harm as probable result and isn’t too remote/accidental in its occurrence to have a just bearing on actor’s liability/gravity of offense . “Foreseeability” cast differently, theories of punishment may inform choice: 1. “Appreciable probability” vs. “highly extraordinary result” (Acosta) 2. Criminal liability if conduct is “sufficiently direct cause” of harm (doesn’t have to be exclusive cause), and “ultimate harm” is something that should’ve been foreseen (Arzon, Kibbe) 3. If evidence does not establish foreseeability of “actual, immediate, triggering cause,” no criminal culpability (Warner-Lambert).

 Note: Alicke suggests concept of “culpable causation” (social psychology): determination of causation may in practice be made by subjective determinations of culpability, e.g. juries will see causation differently for man speeding home to hide drugs vs. to hide wife’s present.

 Acosta/Arzon/WL: doctrine is ambiguous/incomplete, can be argued both ways in most cases.

People v. Acosta (CA 1991): Acosta charged w/ 3 counts 2nd degree murder after leading police on chase for stolen car and 2 helicopters collided (pilot “carelessly and recklessly” operated). Proximate cause: sine qua non test, “but for the defendant’s act would the injury have occurred?” “Highly extraordinary result” standard not met here; but for Acosta’s conduct helicopters wouldn’t have been in position to crash, and given emotions of chase “appreciable probability” that a pursuer may operate negligently/recklessly. Rev’d on other grounds (not suff evidence of malice). DISSENT: Helicopters were not “within range of apprehension” of criminal fleeing on ground, meets “highly extraordinary result” standard.

People v. Arzon (NY Sup. Ct. 1978): Arzon set fire to one level of abandoned building, firefighter Martin Celic died responding to it but due to another arson fire set on another floor. Crim liability if conduct was sufficiently direct cause of death and ultimate harm is something which should have been foreseen as reasonably related to his acts (foreseeable that firemen would respond, made them vulnerable to independent force (2nd fire)). Relies on People v. Kibbe (NY 1974), drunk robbery victim left in cold w/o glasses/clothes, hit by car, robbers liable (sufficiently direct cause)).

People v. Warner-Lambert Co. (NY 1980): 6 workers died at gum plant after 2 machine explosion due, scientific debate about MS dust cause/oxygen liquifaction, insurance inspectors had warned of dust danger but all changes hadn’t been implemented. Here proof as to cause is speculative only/no proof sufficient that defs. should have foreseen danger = no liability. Defs action must be “sufficiently direct cause” of ensuing death for crim liability (higher standard than tort liability). 2. Intervening Act: “new intervening act” doctrine: act of another person may “break the chain” of causation b/t D’s wrongful act and the forbidden result. Said to have this effect when a “voluntary” act by the victim but not when product of “irresponsibility” for which D deserves blame (D’s act remains the “cause”).

CL: 1. Volitional approach: victim’s own act only breaks chain when voluntary. If D’s act renders victim “irresponsible,” chain is unbroken (Stephenson) 2. Reasonableness approach: victim’s own act only breaks chain when based on “reasonable” fear/despair [some juris] (Hendrickson) 3. Victim condition: D’s act remains cause of injury even when it is aggravated due to victim’s own physical/emotional conditions or religious beliefs (Blau) MPC: Silent on intervening acts. Approach through “not too remote or accidental to have a just bearing on the actor’s liability” language (is victim’s act too remote/ accidental?).

 Note: Another issue addressed by Alicke. Concepts of culpable control and culpable causation at play; we choose to see D as having caused victim “irresponsibility” or victim as having/lacking control because of preexisting judgments as to their level of culpability. He says: Volition: doctrine gets it backward, people intuitively know if they want to convict and adjust view of volition accordingly. Reasonable: more realistic, if people think victim is unreasonable, D gets let off hook MPC: most realistic, people intuit what is “just” and fit understanding of causation to that.

Stephenson v. State (IN 1932): D Stephenson attacked and raped deceased victim Madge Oberholtzer on train, then kept her in hotel room for a few days during which Madge was allowed to buy a hat and bought some poison; died about a month later of poison and complications from wound. D held guilty of 2nd degree murder b/c he rendered the deceased mentally irresponsible as a natural/probable result of his actions, question of “loss of volition” —Alicke would say we subjectively determine this (culpable causation).

Hendrickson v. Commonwealth (KY 1887): after violent row with wife, D Hendrickson threatened to kill wife, who left house and died in cold weather outside. However, couple had history of fighting, wife was stronger than crippled husband, and husband did not try to prevent re-entry into house. Jury should have been given instruction that if “fear” compelling her to flee was not “well- grounded/reasonable” accused shouldn’t be held responsible for “forcing” flight. Again, subjective determination—her arg taken less seriously b/c she was a bad wfe.

Regina v. Blaue (Engl. 1975): Jacolyn Woodhead stabbed after refusing sex to unnamed D; died b/c she wouldn’t, as a Jehovah’s Witness, accept blood transfusions at hospital for her wounds. Victim refusal to take action preventing death from mortal wounds inflicted by D, as for religious reasons, does not break causal connection between D act and forbidden result. Wrongdoer “takes his victim as he finds him.”

3. Omissions: exception: when acting would endanger oneself CL: law of most states summarized by MPC MPC § 2.01 (1) D not guilty of offense unless liability is based on conduct which includes a voluntary act of omission to perform an act of which he is physically capable (3) No liability based on omission unless: a. Omission expressly made sufficient by statute defining offense (e.g. taxes, Good Samaritan law), OR b. Duty to perform act otherwise imposed by law (via statute, status relationship, contractual agreement, or voluntary assumption of care for another such that other is dependent on D). (Beardsley, Jones, Pope) Must be specific legal, not moral, duty. Didn’t count: unmarried lover (Beardsley), unspecified-responsibility part-caretaker (Jones), assisting friend (Pope), omission (misprision of felony) out of keeping w/contemporary mores (Pope). Good Samaritan Statutes (a few juris, e.g. VT, RI, WI, MN). Almost never enforced, meager penalties. e.g. VT Stat. Ann. tit. 12: D who knows another is exposed to grave physical harm shall, to extent same can be rendered w/o danger to himself or w/o interference to important duties owed to others, give reasonable assistance to the exposed person unless that assistance is being provided by others.

 Note: most courts follow Benthamite approach and, when ambiguous, under- punish and allow legislatures to clarify rules afterward.

People v. Beardsley (MI 1907): Blanche Burns drank and slept with married D Beardsley over a weekend at his home, then died after taking morphine pills at end of weekend before wife’s return; D tried to prevent her from taking pills but failed and was too drunk to help with her care. Criminal omission requires legal duty, not moral one, including legal duty as “protector,” (no duty to Burns) and omission must be immediate/direct cause of death; D did not owe protective duty to woman who was not his wife. Depends on “special relationships” which are diff by jurisdiction, so diff duties will be owed.

Jones v. United States (DC Cir. 1962): Malnourished baby died after living at home of D Jones, factual contentions as to whether mother or Jones was responsible for feeding baby, no jury instruction as to finding whether D Jones had “legal duty” to baby. 4 ways omission can be breach of legal duty: (1) statute-imposed duty, (2) status relationship-imposed, (3) contract-imposed, (4) one has voluntarily assumed care of another and secluded them so others couldn’t render aid (here remanded to give instruction).

Pope v. State (MD 1979): Joyce Pope found guilty of child abuse and misprision of felony when she was helping insane mother, Melissa, care for child Demiko Lee Norris, whom Melissa killed in a religious fit while Pope was present. They then went to family’s house and church with dead baby and Pope did not report it. Under MD statute, Pope’s omission constituted cruel/inhumane treatment, but she did not satisfy one of the relationships where omission = breach of duty of care (parent, adoptive parent, in loco parentis, or responsible for supervision of minor). May not be held liable for failure to fulfill moral obligation if no legal obligation. Also, crime of misprision of felony doesn’t exist in MD (no obligation to disclose) b/c out of keeping with contemporary mores.

B. MENS REA 1. Mistake of Fact: ignorance/mistake of fact is a defense if it defeats proof of the mental state element of the crime (legislatures don’t define well). About ½ of states have adopted MPC mental states; federal system has not.

CL [less systematic, more value-laden]: If MR Is Clear: 1. If MR is knowledge (”willful”), honest mistake of fact (even unreasonable) is a defense (Tyco) 2. If MR is negligence, only honest and reasonable mistake of fact is a defense 3. If statute specifies SL, no mistake of fact defense. If Statute Silent on MR/Unclear to Which Elements MR Applies: Test: 1. If underlying act, had facts been as D imagined them to be, would’ve been a good act, restrict liability by applying MR requirement to more elements (read in knowledge). (Morissette) 2. If underlying act, had facts been as D imagined them to be, would’ve been a bad act (malum in se), expand liability by applying MR requirement to fewer elements (read in SL). (Prince, Stiffler, Jadowski) a. Public Welfare Cases: where possession of dangerous instrument/ dangerous act puts one sufficiently on notice of creating danger to public welfare that SL is appropriate regardless of intent, even in case of mistake (Balint-drugs, Freed-grenade); SL applied b/c public policy concerns are so strong. But in some cases, negligence rather than SL applies (Staples- gun, Liparota-food stamps). b. Statutory rape: similarly, public policy concerns strong enough to impose SL even in case of mistake (Stiffler, Jadowski) 3. Sometimes: negligence standard read in re: attendant circumstances, allowing for “reasonable mistake of fact” defense (e.g. receipt of stolen property in some juris). Applied for various institutional/theoretical reasons by cts (over-punishing, chilling, notice, etc). (Staples, Liparota) a. Public Welfare Offenses: sometimes ct allows for reasonable mistake of fact if not sufficiently dangerous to be put on notice of threatening public welfare (Morissette-casings, Staples-gun, Liparota-food stamps). b. Statutory rape: minority of states moving toward negligence standard rather than SL. 4. Jurisdictional vs. Material Elements: if mistake relates only to a jurisdictional (not material) element, no mistake of fact defense (Feola). To determine if element is material or merely jurisdictional, look to (1) language of statute, (2) legislative history, (3) common sense/public policy. MPC: [supplies clearer mental state terms and interpretive default rules] MPC § 2.02 General Reqs. Of Culpability (p. 156) 1. Minimum Reqs of Culpability: Unless statute provides otherwise) person not guilty of offense unless he acted purposely, knowingly, recklessly, or negligently, as law may req, w/ respect to each material element of the offense. 2. Kinds of Culpability Defined: a. Purposely : (1) if element involves nature of his conduct or result thereof, conscious object to engage in conduct or to cause such result, AND (2) if there is element of attendant circumstances, he is aware of existence of such circumstances or believes/hopes they exist. b. Knowingly: (1) if element involves nature of conduct/attendant circumstances, aware that conduct is of that nature/circumstances exist, AND (2) if element involves result of conduct, he is aware that it’s practically certain to result. c. Recklessly: Reckless w/respect to any material element of an offense when actor consciously disregards a substantial and unjustifiable risk that the material element exists or will result from conduct. Risk must be of such nature/degree that, considering nature/purpose of actor’s conduct and circumstances known to him, its disregard involves gross deviation from standard of conduct a law-abiding person would observe in the actor’s situation. d. Negligently: Negligent w/respect to a material element of an offense when actor should be aware of substantial/unjustifiable risk that element exists or will result from conduct. Risk must be of such nature/degree that failure to perceive it, considering nature/purpose of actor’s conduct and circumstances known to him, involves gross deviation from standard of care reasonable person would observe in that situation. 3. “If silence, read in recklessness req”: must be purposely, knowingly, or recklessly if not specified in law (Prince, public welfare cases-acquit) 4. “One for all” presumption: if ambiguous, culpability level has to apply to all elements (Morissette-would acquit) 5. Higher-ups satisfy lesser elements: E.g. negligent if reckless proven etc. 6. Req of Purpose Satisfied if Purpose is Conditional 7. Req of Knowledge Satisfied by Knowledge of High Probability 8. Req of “Willfulness” Satisfied by Acting ”Knowingly” 9. Culpability as to Illegality of Conduct: knowledge/recklessness/negligence as to legality of conduct not an element of the offense 10. Culpability as Determinant of Grade of Offense

MPC §2.04 Ignorance or Mistake 1. Defense if: (a) ignorance/mistake negatives purpose, knowledge, belief, recklessness, or negligence req’d to est. a material element of offense, OR (b) law provides that state of mind est. by such ignorance/mistake constitutes defense. Typical CL/MPC Equivalence: Intentionally = MPC purposefully Willfully = MPC knowingly Maliciously = MPC recklessly Negligently = MPC negligently  Note: Prosecution burden includes mental state element. Jury should acquit as long as possibility that the D was mistaken/ignorant prevents the jury from concluding beyond a reasonable doubt that D formed the specified mental state for the offense.  SL reading may have a “chilling effect”: people less likely to engage in what would be lawful behavior in fear it’s based on mistake (e.g. from Prince: nobody eloping with younger-looking women lest they turn out to be under 16, even if it would be legal).  Mistake of fact and child pornography: debate over whether statute required proof that D (in U.S. v. X-citement Video, US 1994) had knowledge of only “distribution” or also “depiction” of minors in videos. Cited Morissette, presumption that scienter requirement should apply to all elements criminalizing otherwise innocent conduct.

Morissette v. United States (US 1952): D Morissette took bomb casings from marked government bombing range, thinking them abandoned, salvaged them for $84 as scrap metal, indicted on “conversion of government property.” Improper instruction on intent given, court determining that that no criminal intent req’d for that crime. Omission from relevant statute of mention of intent will not be construed as eliminating that element from the crimes denounced; not just question of whether he took but whether he sought to wrongfully deprive another (govt).

MR: “knowingly”, AR: “converts”, AC: “thing of value of the US.” QP: should “knowingly” apply to all elements, incl. AC (“thing of value”)? Underlying act was good as D imagined, so ct. restricted liability by applying “knowingly” to all elements, including “thing of value.” Under MPC? Acquittal, 2.02(4) says “knowingly” would have to apply to all elements, D didn’t “know” casings were thing of value of US.

Regina v. Prince (Engl. 1875): Prince “took” Annie Phillips, unmarried girl under 16, from care of her father, thinking she was older. Legislature enacts law so anyone doing wrong act does so at risk of girl turning out to be under 16 (assumptions being wrong); act is wrong in itself regardless of mistake b/c involves taking girl w/o father’s permission. Broad liability (narrow MR application) b/c it’s a “bad act.” DISSENT: There can be no crime in absence of criminal mind; mistake of facts based on reasonable grounds make actor not guilty.

MR: statute is silent, AR: taking unmarried girl from parents, AC: (1) unmarried, (2) age of girl, (3) lack of consent of (4) possessing parents. Underlying act was bad even as D imagined in taking w/o father’s permission, so ct. expanded liability by reading in SL.  Under MPC? Silence = recklessness, jury would have to decide whether act “consciously disregarded” risk re: age. Probably acquittal. United States v. Feola (US 1975): Issue was whether knowledge that intended victim is a federal officer is req for crime of conspiracy to commit offense of assault upon an officer while engaged in performance of official duties. Undercover officers were assaulted when narcotics rip-off deal went awry; Ds didn’t realize they were federal officers until then. D argues that although no scienter req for substantive charge (assault on fed officer), conspiracy to assault fed officer reqs knowledge of fed officer identity. Offender takes victim as he finds him (turns out to be officer); no statutorily-unexpressed req that assailant realize his victim is fed officer; other interpretation would give insufficient protection to undercover officers. Statute intended to federalize assault on federal officers not create a new material element; mistake of fact not relevant for jurisdictional element, only for material elements. DISSENT: If assailant doesn’t know identity, no deterrent advantage to enhanced punishment, makes no sense to regard unknowing assault as more reprehensible than assault of private citizen, aggravated penalty only makes sense if assailant knew victim had some special status or function. Punishing knowing/unknowing assault equally is unfair.

State v. Stiffler (ID Ct. App. 1988): D Stiffler pled guilty to statutory rape, argues it’s unconstitutional to impose criminal liability where reasonable mistake of fact disproves criminal intent. (1)Effect of mistake on criminal intent left to states, (2) where intent is not statutory element of offense (strict liability, as here, with statutory rape), lack of intent is immaterial, (3) legislature is proper forum for changing intent element, (4) mistake may mitigate sentence, not guilt. Public policy declares minors cannot consent, so this is strict liability. DISSENT: Issue of statutory construction, ID code says all crimes involve issues of act + intent/negligence, no exception for rape. (1) Reasonable mistake of fact as to woman’s age may disprove criminal intent, shouldn’t be strict liability, (2) “reasonability” of mistake (negligence standard) should be jury issue.  Knowledge req would disincentivize finding age, so strict liability imposed, chilling effect but ct doesn’t care. This is majority jurisdictions’ rule

State v. Jadowski (WI 2004): 15-yr-old victim fraudulently induced 35-yr-old D to think she was over 16 (age of consent) using fake ID. (1) Statute incl. no language about intent--strict liability crime. Public policy concerns in protecting minors and law enforcement difficulties outweigh heavy punishments (which might suggest leg did not intend for strict liability). D argues statute is unconstitutionally vague and chills his ability to exercise ability to have sex with legal but young-looking women, ct says (2) strict liability is deemed sufficient notice and (3) there may be legal liability w/o moral liability.

United States v. Balint (US 1922): Ds violated Narcotics Act, selling drugs (w/o reporting to IRS) they allegedly didn’t know to be drugs, argued there’s no liability if they didn’t know product to be drugs. Statute silent on mens rea. Issue of legislative intent, Policy of law may, to ensure proper care, req punishment of negligent person even if ignorant of noxious character of what they sell. Legislative intent = injustice of exposing innocent purchaser to drug > injustice of punishing innocent seller.

Staples v. United States (US 1994): Nat’l Firearms Act made it unlawful to possess unregistered machinegun, D did so but argued he did not know gun he possessed had characteristics of machinegun. D owned AR-15, which is semiautomatic unless modified, and D’s was modified. Statute silent on mens rea, and cts must rely on (1) nature of statute and (2) character of items regulated to determine how to interpret silence. In US v. Freed, grenades determined to be strict liability, but in US v. Liparota decided D had to know possession of food stamps was unauthorized. Ct. puts guns with food stamps. Tradition of widespread gun ownership and lack of inherent dangerousness means owners are not put on automatic notice of likelihood to be regulated (so should require mens rea). Also, lack of req would over-ease prosecution’s “path to conviction” and make punishment excessive for relatively innocuous crime. DISSENT: Nature/character of gun IS sufficient to put owner on notice of possibility of regulation, possibility of injustice worth safety standards.

2. Mistake of Law CL: Ignorance or mistake of law NOT exculpatory unless based on: 1. Law itself requires knowledge of the law (e.g. tax code, incentivizes learning law and using loopholes positively) 2. Mistake of collateral law (relates to AC) that is honest and reasonable (universal negligence standard) (Long). Not met if D’s misunderstanding is unreasonable (Marrero) or D is uninformed for failure to investigate law (King). 3. Reliance on official empowered to interpret law (Albertini, Cox) MPC: D must satisfy MR requirement of statute. If mistake of law negatives MR, it’s a defense [generally more forgiving than CL]. Based on:

MPC § 2.02 General Reqs of Culpability (9) Culpability as to Illegality of Conduct: Knowledge/recklessness/ negligence re: what constitutes an offense or re: existence/meaning of law determining elements of offense is NOT an element of that offense, unless code so provides.

MPC § 2.04 Ignorance or Mistake: (1) Ignorance or mistake re: law is a defense if: a. Ignorance/mistake negatives purpose/knowledge/belief/ recklessness/negligence req’d to establish material element of offense OR b. Law provides that ignorance/mistake constitutes defense. (2) Defense of ignorance/mistake not available if D would be guilty of another offense had the situation been as he supposed. But ignorance or mistake will then reduce grade of offense of which he may be convicted to those of the offense which he would be guilty of if situation were as he supposed. (3) A belief that conduct does not legally constitute an offense is a defense if: (a) statute not known b/c not published/available prior to the conduct, OR (b) D acts in reasonable reliance upon an official statement of law afterward determined to be erroneous contained in (i) statute, (ii) judicial decision, (iii) administrative order, (iv) official interpretation of the public officer/body charged by law w/ responsibility for interpretation, administration, or enforcement of law [BROAD]. (4) D must prove a defense arising under (3) by a preponderance of evidence

Long v. State (DE 1949): D prosecuted under bigamy statute when he re-married after getting divorce in AR that was improperly served (and therefore invalid) in re: 1st wife in DE. D had consulted a lawyer who informed him AR divorce was “good” and he was free to re-marry. Different types of ignorance: (1) unawareness that type of act might be crime, (2) concluding in good faith (but mistakenly) that one’s particular act is not a crime, (3) along with #2, making a bona fide effort to ascertain and abide by law (but still making mistaken criminal act). Here, D’s action followed bona fide effort to ascertain law following legal advice (#3), defense applies. Concern of injustice > deterrence here. Burden of proof of efforts falls to D and there may remain civil costs even if criminal charge averted by mistake of law. D was confused about collateral law of marriage (civil), not penal law of bigamy, so mistake of law defense exists. Collateral law rather than “empowered official” mistake b/c simply consulting attorney does not constitute “official” interpretation.

People v. Marrero (NY 1987): D was a federal corrections officer, believed in misreading statute that he was allowed to carry a weapon w/ legal impunity. Mistake wasn’t about penal law re: gun possession, but about collateral law of whether corrections officers qualified as peace officers. Reading of law was unreasonable (no defense to “misconstrue” meaning of statute, only to rely on statute and then find to be erroneous), so liability regardless of intent. (Policy reasons, deny “diversionary stratagems”) DISSENT: If D hasn’t knowingly committed a wrong, no reason to enact retribution. Given modern profusion of legislation, unfair to require every person to fully understand law. Critic suggests negligence standard would be better than strict liability in mistake of law, value of learning law will be higher when law excuses reasonable mistake than when it doesn’t.

State v. King (MN 1977): D charged with possession of phentermine one day after phentermine was added to list of controlled substances by State Board of Pharmacy (effective date in statute amendment was a few months later). D contends (1) pharmacy board lacks authority to designate controlled substances, (2) lack of notice phentermine would be crime. (1) Pharmacy board had statutory authority to designate controlled substances, (2) Phentermine was legally included as controlled substance at time of possession, even if not yet incl. in statute wording—D’s responsibility to investigate before possessing. DISSENT: Unrealistic to expect public to make such an extensive inquiry into development of law.  Note: authority to determine inclusions often delegated to agencies; assumption that regulated parties will make substantial efforts to learn law is built into structure of controlled substances legislation.

United States v. Albertini (9th Cir 1987): D Albertini appealed his convictions for entering military bases without permission (having been barred from them after distributing political leaflets). Trial ct convicted, cir ct reversed (holding that base was a public forum during an open house, could not exclude even someone who had been barred), and Supreme Ct reversed again (saying military base not a public forum and even if it were bar letter still provided reasonable basis for exclusion). However, D Albertini was arrested again between the cir ct and SC decisions when he thought leafleting was ok. Albertini acted during a window of time when he reasonably believed his acts were protected under App Ct decision; defense of mistake of law when it results from D’s reliance on official (but mistaken/later overruled) interpretation of law by an official. To hold otherwise would be an “entrapment” by the government. Cox v. Louisiana (US 1965): D Cox was convicted of leading a civil rights demonstration in violation of statute prohibiting interfering with justice by picketing “near” courthouse. SC held that wording of statute requires on-the-spot advising by officials as to how “near” a courthouse a demonstration may be; here, permission was clearly given by police to conduct demonstration across the street from the courthouse (where it was held), conviction of persons relying upon assurances of public officials would constitute “entrapment” by the state (conviction reversed).

SPECIFIC CRIMES A. Rape

MD 2nd degree (20 yr max) if: (Trad. (a) Vaginal intercourse CL) 1. By force/threat of force w/o consent of other; 2. Victim is mentally defective/incapacitated or physically helpless and D knows/reasonably should know so; OR 3. Victim < 14 and D is at least 4 years older than victim

1 st degree (life max) if: Involves forcible nonconsensual intercourse w/ a weapon, by infliction of serious injury, in league with 1+ other persons, or in commission of burglary. NY Sexual Misconduct (misdemeanor/1 yr max) if: 1. Being male, D engages in sexual intercourse w/female w/o her consent

3 rd degree Rape (4 yr max) if: 1. He or she engages in sexual intercourse w/another person to whom D is not married who is incapable of consent by reason other than factor of being < 17 OR 2. Being 21+, D has sex w/another person to whom D is not married who is < 17.

2 nd degree Rape (7 yr max) if: 1. Being 18+, D has sex w/another person to whom D is not married who is < 14

1 st degree Rape (25 yr max) if: 1. By forcible compulsion; OR 2. Vic incapable of consent b/c physically helpless, OR 3. Vic < 11.

--Female = not married to D --Element of every offense except consensual sodomy that act be committed w/o consent of victim. --“Lack of consent” = forcible compulsion or incapacity to consent. --“Forcible compulsion” = (a) use of physical force or (b) threat, express or implied, which places victim in fear of immediate death/physical injury to herself /another or in fear that she/another will be immediately kidnapped. --Victim incapable of consent when: a. < 17 years old b. Mentally defective c. Mentally incapacitated (by substance not administered on own) d. Physically helpless WI Sexual Assault (Reform ) 1 st degree (class B felony, 40-yr max) if: a. Sexual contact/intercourse w/another person w/o consent and causes pregnancy/great bodily harm, OR b. Has sexual contact/intercourse w/another person w/o consent by use or threat of use of a dangerous weapon or any article leading victim reasonably believe it’s a dangerous weapon.

2 nd degree (class BC felony, 25-yr max) if: a. Sexual contact/intercourse w/another w/o consent by use of threat of force or violence b. Sexual contact/intercourse w/another w/o consent and causes injury, illness, disease, or impairment of a sexual/reproductive organ, or mental anguish requiring psychiatric care c. Sexual contact/intercourse w/victim suffering from mental illness/deficiency rending her incapable of appraising conduct, and D knows of such condition. d. Sexual contact/intercourse w/another under influence of intoxicant rendering her incapable of appraising conduct, and D knows of the condition. e. D knows vic is unconscious

3 rd degree (class D felony, 5-yr max) if: w/o consent

--Consent = words/over actions by person competent to give informed consent indicating freely-given agreement to have sex/contact --Marriage not a bar to prosecution 2nd deg §213.1(1) 2 nd degree rape if victim is NOT D’s wife and: a. He compels by force/threat of imminent death/injury b. He has substantially impaired her power to control conduct by administering drugs/alcohol to prevent resistance c. Female is unconscious d. Female is < 10 yrs old 1st deg §213.1: 1 st degree if: i. actor inflicts serious injury OR ii. victim was not a voluntary social companion and had not previously permitted D sexual liberties [aka “stranger rape”] 3rd deg §213.1 (2): Gross Sexual Imposition (3 rd deg) if NOT D’s wife and: a. compels woman to submit by threat that would prevent resistance by a woman of ordinary resolution OR b. He knows she suffers from mental disease/defect that would prevent her from appraising the nature of her conduct Mis. § 213.4, Sexual Assault: actor guilty of sexual assault (misdemeanor) if he has sex w/ another not his spouse if victim is: (1) Less than 16 and actor is 4+ years older, OR (2) If victim is under 21 and actor is her guardian, OR (3) Victim is in custody of law or detained in hospital/institution and actor is a supervisory/disciplinary authority §211(3): Assent does not constitute consent if given by person who is manifestly unable or known by actor to be unable to make a reasonable judgment as to nature/harm of conduct charged b/c of: a. youth b. mental defect/disease c. intoxication § 213.6 Provisions Generally Applicable to Article 213 (1) Mistake of Age: No defense if child under 10; when criminality depends on other age, it IS a defense for actor to prove by preponderance of evidence that he reasonable believed child to be above that age (2) Spouse Relationships: Language excluding spouse relationships applies to those living as man and wife regardless of legal status but does not apply to separated spouses living apart. Where definition excludes act by spouse or a woman, it does not preclude conviction of spouse/woman as accomplice in sexual act which he or she causes ANOTHER, not w/in exclusion, to perform. (3) Sexually Promiscuous Complainants: Defense against 213.3 and 213.4(6-8) for D to prove by preponderance of evidence that alleged victim had prior engaged in promiscuous sexual relations with others. (4) Prompt Complaint: No prosecution if brought to authorities more than 3 months after occurrence (or if brought by adult on behalf of victim under 16, 3 months after adult learns of offense). (5) Testimony of Complainants: no person shall be convicted upon uncorroborated testimony of alleged victim, but corroboration may be circumstantial. Jury shall receive instruction about special care of evaluating witness testimony in light of private acts/emotional involvement. §213.3: Seduction of Minors (book doesn’t include text)

 Note: controversial features of classic rape law: (1) marriage exception, (2) gender specificity, (3) consent mistake of fact defense, (4) force/resistance requirements.

Mens Rea of Rape When statute doesn’t specify MR requirement for AC of consent, cts read differently:

1. Knowledge (uncommon but trad. CL): “yes sometimes means no,” uncommon but trad. CL, Morgan (Eng.). Allows for “honest” mistake of fact. 2. Recklessness (rare): conscious disregard, rare (only AK)), Reynolds. 3. Negligence (majority): objective standard punishing D who isn’t attentive to norms of community, majority, Fischer (PA), Craigslist (WY). Allows for “reasonable and honest mistake.” E.g. NJ, CA. 4. SL (reform): “no means no,” controls jury’s ability to exercise personal views, Lofkowitz (MA), Simcock (MA), Canada. No statute presents SL, only by reformist ct interpretation. Allows no mistake of fact.

Commonwealth v. Fischer (PA 1998): D Fischer raised mistake of fact defense after rape allegation by another student, claimed her initially aggressive behavior made his act not “forcible” because she seemed to be enjoying it, plus he stopped seeking a second act of oral sex when it was clear victim did not wish to engage. Ct cites other jurisdictions with mistake of fact defenses re: consent (NJ, CA, “reasonable belief” of consent), but does not adopt “compelling” principles b/c of binding precedent (judgment aff’d). Most jurisdictions do not enforce strict liability (e.g. MA) as to consent; majority rule is that a mistake as to consent is a defense if “reasonable”—a negligence standard. “Recklessness” standard is least common of all (e.g AK).

Notes on Consent Reform:

 “No means no” standard, as in Commonwealth v. Lefkowitz (MA App Ct 1985): anything other than woman’s manifestation of non-consent is legally irrelevant, further action is unwarranted and actor proceeds at his peril  Catharine MacKinnon: when reality is split (violated women and honest men who were confused) law tends to conclude that rape did not happen, instituting “reasonable belief” standard without asking to whom it is reasonable and why. Assumes single, objective state of affairs that may often not exist.  Douglas Husak and George Thomas III: if reformers succeed in eliminating mistake-of-fact defense, some men will be convicted of rape even though they had reason to believe consent was given, but that’s not a “just result” in the particular case  Susan Estrich: If inaccuracy or indifference to consent is “the best a man can do”, then it would be unfair to punish, but most men have greater capacity than that. Man who has the inherent capacity to act reasonably but fails to has, through that failure, made a blameworthy and punishable choice.

Actus Reus of Rape AR may or may not have force requirement. Traditional: 1. Force or threat of force 2. Force proven by physical resistance 3. Threat must be enough to make a “reasonable woman” submit (Rusk) Alternatives: 1. Read out force requirement (M.T.S., (NJ)) 2. “Indecent assault”: lack of consent regardless of “force” (Berkowitz (PA)) 3. Broad statutory definition of what constitutes “force” (post-Rusk in PA) ------4. Model Statute (sexual assault/sexual abuse), p. 241 5. Shaming penalties (p. 243) 6. Civil remedies (e.g. Violence Against Women Act (struck down by SC)

State v. Rusk (MD 1981): D Rusk convicted of 2nd degree rape, appeal. Victim Pat gave D Rusk a ride home; vic says D Rusk turned off her car, took her keys, made threatening facial expressions, and started “lightly choking her” when she cried. D Rusk says vic turned car off, that she came willingly to his room, and that he did not make threatening facial expressions, threats, or choke her. Witnesses for D testified as well. App ct decided that in light of facts viewed most favorably to P, no reasonable jury could find elements beyond reasonable doubt for guilt. SC: Reasonableness of victim’s fear was a question of fact for the jury to determine (to determine threat of force element); where persuasion ends and force begins is a factual issue, and if jury believes victim, conviction stands. DISSENT: if an essential element of a crime is not sustained by evidence, the conviction cannot stand. Woman must resist unless D has objectively manifested intent to use physical force, evidence here followed pattern of seduction of female who first suggests disinclination not rape. No evidence of struggle, woman walked across street up to apt, “she certainly had tor realize they were not going upstairs to play Scrabble”. Judge Wilner dissent from App Ct conviction reversal: defining “force” by “resistance” is questionable, cites data re: increased risk of harm accompanying resistance, prevalence of voluntary contact w/assailant, physical force absent in over half of reported cases. Some studies have questioned interpretation, concluding physical resistance is more likely to be a consequence than cause of physical injury and that pre-rape physical resistance does deter rape. 11/9 judges ruled against P, even though SCt ruled for her (Dissent) Force used to show (a) man knew lack of consent, he cannot be sure in absence of force, (b) conception that force is what makes rape bad Ct moves past force to threat of force b/c of insufficient resistance Force: evidence of non-consent, additional evidence of harm  2nd degree WI, 1st degree NY, 25 yrs either way

State in the Interest of M.T.S. (NJ 1992): QP: whether element of “physical force” is met by mere act of non-consensual penetration w/o extra force to accomplish that act. 17 year old boy (MTS) had sex w/ 15 year old girl (CG), neither version of facts credited fully. Trial ct: although they didn’t believe CG was “asleep” at time of penetration as she claimed, she hadn’t consented so still 2nd degree “sexual assault.” App ct: absence of force beyond the act of penetration itself, so no 2nd degree sexual assault. Vic argues “force” = any amount of sexual touching brought about involuntarily, D argues “force” = force used to overcome lack of consent. SC: Reads out force element (1) draws parallel to tort law (as unauthorized touching = battery, unauthorized sexual conduct = crime), (2) privacy expectation violated by any touching that occurs w/o permission, (3) reform of laws must be consistent w/ our evolving understanding of wrongs inherent in forced sexual intimacy. WI: 3rd degree sexual assault NY: sexual misconduct

Commonwealth v. Berkowitz (PA 1994): QP: “degree of force” necessary to prove forcible compulsion element of crime of rape. Vic was looking for a friend, D’s roommate, he locked door, pushed her onto bed, and penetrated despite her saying “no”, contested facts. Viewing facts favorably to P, complainant’s testimony is devoid of any statement re: threat of force against her, was not restrained, did not try to leave through door she knew was unlockable. Saying no is relevant to question of consent, not issue of force; testimony fails to establish forcible compulsion as req’d for rape; however, “indecent assault” involves not forcible compulsion but “indecent contact w/another w/o consent of the other, so THAT’S met. PA amended statute after this case to say “forcible compulsion” may be physical, intellectual, moral, emotional, or psychological  In “no sometimes means yes” world, woman’s verbal profession of nonconsent doesn’t furnish clear evidence, BUT nonconsent will be seen as genuine/”not feigned” if she resists to point that he must use physical force, so force functions as proof of non-consent. Some states, e.g. Alaska in Reynolds v. State, eliminate element of force but say D must “recklessly disregard” victim’s lack of consent (allowing mistake of fact defense)… responds to elimination of force element w/ a more liberal mistake of fact defense, norm-changing laws constrained by norms they seek to change?

Notes on Force Reform

 Catherine MacKinnon (p. 236): Woman has to prove it was not intercourse, because if sex occurred consent is inferred unless she can prove “more force than usual.” But what force is “usual/normal”?  Catherine MacKinnon: Women are socialized to passive receptivity; even if no force is used, sex may be deeply unwanted.  Susan Brownmiller: female victims must work through male-dominated court system that is not in their camp  Victim more often on trial than D when “contributory negligence”-type standard is applied in acquaintance rape cases  Shield laws protect against evidence that may lead jury to improperly infer consent/lies of victim based on past behavior/unchaste character  If “force” doesn’t require more than penetration, do economic and other forms of coercion count? (Domestic employ, drug addict/dealer, etc) B. Homicide: death w/in a year and a day

Federal Statute (representative of CL):

18 U.S.C. § 1111. Murder. Murder is the unlawful killing of a human being with malice aforethought.

1st degree: Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the 1st degree. Punishment: by death or by life imprisonment.

2nd degree: Any other murder is murder in the 2nd degree. . . . Punishment: imprisonment for any term of years/life.

18 U.S.C. § 1112. Manslaughter Manslaughter is the unlawful killing of a human being without malice. 2 kinds:

Voluntary ⎯ Upon a sudden quarrel or heat of passion. Punishment: fined under this title or imprisoned not more than 10 years or both.

Involuntary ⎯ In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death. . . . Punishment: fined under this title or imprisoned not more than 6 years or both. Model Penal Code: [most states have not adopted w/respect to murder, and often those that do return to CL shortly thereafter]

§ 210.1. Criminal Homicide. (1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another human being. (2) Criminal homicide is murder, manslaughter, or negligent homicide.

§ 210.2. Murder. (1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when: (a) it is committed purposely or knowingly; or (b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if: the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape. (2) Murder is a felony of the 1st degree [but a person convicted of murder may be sentenced to death, as provided in Section 210.6].

§ 210.3. Manslaughter. (1) Criminal homicide constitutes manslaughter when: (a) it is committed recklessly; or (b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be. (2) Manslaughter is a felony of the 2nd degree.

§ 210.4. Negligent Homicide. (1) Criminal homicide constitutes negligent homicide when it is committed negligently. (2) Negligent homicide is a felony of the third degree.

Intentional (Purpose/Knowledge) Unintentional (no purpose/knowledge) 1st deg Premeditated -Felony murder (enumerated, PA-style (majority)) 1st deg murder (Serne), killing “in furtherance” of felony murder Carrol (no time too short, inferable from D’s Subject to inherently dangerous/merger, see FM words/actions) vs. Anderson (“genuine” -HI/KY/ abolished, AR/DE limit, OH re-included premeditation: planning/motive/ manner) 2nd deg Intentional but unpremeditated -Felony murder (unenumerated, PA-style 2nd deg murder (majority)), killing “in furtherance” of felony murder -Gross recklessness [cts look for unusual callousness toward others’ welfare, high likelihood of harm, high gravity of harm implying malice] (Malone, PA) -Intent to inflict great bodily harm 2nd/1st deg require malice: “the wickedness of  Depraved and malignant heart murder: exhibit disposition, hardness of heart, cruelty, malice, express or implied. recklessness of consequences, & mind regardless DRUNK DRIVING: of social duty which is termed malice” 1. Malice est. by gross deviation from standard of care such that jury can infer D was aware of (and consciously disregarded) risk of harm, applies if driving not just drunk but dangerously (Fleming, 4th Cir) 2. MPC: exception to recklessness MR requirement for voluntary intoxication (noted in Fleming) 3. Intoxication exception allows murder charge w/o consciousness of risk, “implied malice” if D acts w/high probability of resulting harm and does it anyway w/conscious disregard for life (Watson, CA) [See leg responses, CA and VA] FELONY MURDER: -MI abrogated 2nd degree (1st, for enumerated, still stands) (Aaron) others criticize (CA), NM followed -Subject to inherently dangerous/merger (see FM) “Legally adequate provocation” (Thornton, TN) vs. some acts not sufficient provocation as matter of law (Carr, PA) Volunt Adequate provocation + -Gross negligence or recklessness (depending on Involunta ary heat of passion + jurisdiction) ry Mansla insufficient cooling time -In committing unlawful act, even misdemeanor (a Manslaug ughter few jurisdictions) (means P need not prove any hter culpable mental state) Diff approaches: 1. “Culpable negligence” above ordinary negligence (Barnett, SC, defines) 2. “Ordinary neg with dangerous instrumentality” (e.g. Tophia, CA) 5. “Ordinary negligence” (RPPUTC) suffices (Williams, WA) 3. “Imputation” of recklessness when normal man UTC would’ve realized gravity of danger (Welanksy, MA—didn’t criminalize neg or gross neg, had to get to recklessness) 4. SL misdemeanor violations can’t support mis manSL b/c that requires showing (1) mis occurred and (2) was prox cause of vic death; SL prevents prox cause inquiry (Great White, RI)

MPC Homicide Gradations:

Intentional Unintentional Felony Degree Murder Purpose or knowledge -Recklessness + extreme indiff. to human 1 life -Felony murder: 1. Enumerated: robbery, rape, arson, burglary, kidnapping, felonious escape 2. No merger 3. Engaged in/accomplice to/fleeing from felony) Manslaug Purpose/knowledge AND under extreme Recklessness 2 hter mental/emotional disturbance for which there is explanation/excuse. Reasonableness of explanation/ excuse determined from viewpoint of a person in actor’s situation under circumstances as he believed them to be. Must still be reasonable even from D’s viewpoint, Cassasa, NY (malevolence, not understandable human response deserving mercy) Negligent Gross negligence 3 Homicide

2. INTENTIONAL HOMICIDE: 1st vs. 2nd DEGREE: generally, premeditated vs. unpremeditated, but application of terms is flexible

Commonwealth v. Carrol (PA 1963): Man of good repute shot nagging/sadistic wife following argument, 5 mins elapsed b/t wife’s last remark and shooting, pre-loaded gun was already w/in reach. (1) Intent is inferable from words/conduct . Ct disagrees w/D’s argument that he had insufficient time to “premeditate”, esp. considering good character, time/place of crime, difficulty of concealing body/lack of escape plan. “ No time too short for wicked man to premeditate crime.” (2) Psychiatric testimony has little weight outside insanity cases, and cts cannot abdicate duty of determining criminal liability to a psychiatrist. (3) Society would not be protected if mere emotional impulse were a defense to killing.

People v. Anderson (CA 1968): D pleaded insanity after stabbing gf’s 10-yr-old daughter to death, many superficial/severe extremely brutal wounds, D almost nude during attack, drinking during the day. Brutality does not itself prove premeditation. Presumption = 2 nd degree murder, burden of P to show beyond reasonable doubt that killing was genuinely premeditated (not spontaneous ) to elevate to 1 st degree. 3 forms of evidence ). Ct usually requires all 3 or very strong #1 or #2 + #1/#3. (1) Planning activity (e.g. surreptitious conduct/control of vic/kidnapping (Hillery), preventing from IDing assailant or calling for help (Kemp), superficial wounds to dull victim resistance (Cartier, Stroble) (2) Motive based on relationship w/vic (e.g. adulterous spouse relationship (Cartier), sexual molestation history (Stroble) (3) Manner of killing (so exacting it must have been by design (e.g. direct stabbing attack not superficial wounds (Hillery, Stroble), deliberate strangling (Kemp), butcher-like cutting (Cartier) Compared to Granados, where evidence was lacking for all 3 (sending vic’s brother from house not sufficient planning, alleged molestation/question re: virginity not sufficient motive, brutal hacking not exacting manner of killing). Here (Anderson), also lacked all 3 (no planning, no motive, chaotic killing not preconceived design). Note: after this case, CA did about-face on premeditation following ousting of liberal SC justices blocking carrying out of death penalty

3. INTENTIONAL HOMICIDE: MURDER vs. VOLUNTARY MANSLAUGHTER: D must show (1) adequate provocation, (2) heat of passion, (3) insufficient cooling time

State v. Thornton (TN 1987): D walked in on separated wife having sex, intending to take pictures for divorce proceedings, though bigger vic was going to attack him, shot in hip wanting to disable him, vic died of wound infection. “Provocation doctrine”: passions of a reasonable person would have been inflamed in the situation to point of legally sufficient provocation. Encountering cheating spouse almost always sufficient to reduce manslaughter absent actual malice (e.g. previous grudge, revenge). Cooling time unclear, 1 hr may not be enough (Toler), 17 hours is enough (Ashland), usually a jury question of what is sufficient Rationale of “provocation doctrine”: (1) anger is like insanity (reduces choice capability), (2) penalty should correlate to character (lack of control in killing may relate to extraordinary situation, not bad character). ”Legally adequate”: common law used to define what was adequate provocation (e.g. blow to face rather than ear) but most jurisdictions now permit factfinder to decide (Carr) Infidelity the classic CL application of provocation mitigation to manslaughter, some say reflects outmoded patriarchal norms (but may be invoked as often under MPC anyway). MD only state where, by statute, adultery is a non- cognizable ground for manslaughter mitigation. Misdirected retaliation: impassioned offender who kills someone other than provoker not entitled to mitigation of murder to manslaughter (e.g. killing adulterous wife and sleeping son)

Commonwealth v. Carr (PA 1990): D shot 2 lesbian lovers in woods (killed 1), alleged he did so in heat of passion caused by provocation of their lovemaking b/c of his history of rejection by women. PA employs “objective test” for “legally adequate provocation”: (1) whether reasonable actor under circumstances would become impassioned to point incapable of cool reflection, (2) if so, whether actor actor acted in heat of passion when committing the homicide, and (3) if so, whether there was sufficient cooling time. Homosexual lovemaking not sufficient reason #1, reasonable person would not be so impassioned but merely move on. Recalling a past injury/insult is also not a foundation for legally adequate provocation.  Some cts treat homosexual propositions as inadequate provocation as a matter of law

MPC Manslaughter (210.3) [very few states adopt] 1. Homicide which would otherwise be murder committed under influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse, the reasonableness of which is determined from the viewpoint of a person in the actor’s situation under the circumstances as he believed them to be.  Meant to enlarge number of impassioned/impulsive killers eligible for mitigation, under policy theory that emotional impairment reduces culpability and deterrability. Comparison to CL: CL: adequacy of provocation measured by effects on a reasonable person (compares to contemporary community norms) MPC: considers “reasonableness” of D conduct from viewpoint of actor in D’s situation. Allows for greater subjectivity, doesn’t exclude personal characteristics like sense of honor or fearful temperament (D must show feelings were “intense”, not that they were at all appropriate to situation). Can be less spontaneous than CL “heat of passion” if trauma affects for a substantial time (according to ct in Cassasa). Affects kind of evidence allowed (e.g. psychiatric testimony v. important to Ds under MPC but of little worth under CL). Outcomes not necessarily different (jury still has to be convinced by D)

People v. Cassasa (NY 1980): D obsessed ex-boyfriend stabbed ex-gf after visiting her apt in attempt to reconcile. Psychiatrists testified on both sides (D emotionally disturbed by obsession with ex-gf/emotional disturbance not w/in meaning of law b/c it was not produced by external factors but a self-created fantasy). NY law allows “extreme emotional disturbance” (EED) based on MPC formula but as an affirmative defense (D burden of proof); emotional disturbance can be less spontaneous than the “heat of passion” CL doctrine (if significant trauma affects for a substantial time) but still requires: (1) D acts under EED AND (2) reasonable explanation/excuse for EED determined by viewpoint of person in D’s situation under circumstances as D imagined them. Here, D did act under EED (1) but EED was not reasonable, it was instead peculiar to D and unworthy of defense (2). Only consider #2 if #1 met, gives factfinder opportunity to mitigate on facts but not obligation to do so.

4. UNINTENTIONAL HOMICIDE: INVOLUNTARY MANSLAUGHTER MPC: neither knowingly nor purposefully, jurisdictions divided over what mental state SHOULD be. Most states: gross negligence or recklessness.

State v. Barnett (SC 1951): Culpable negligence definition: more than failure to use ordinary care toward others, must be gross and flagrant, a course of conduct showing reckless disregard of human life/safety or want of care such as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety/welfare of the public, or such indifference to rights of other as is equivalent to intentional violation of such rights. In many jurisdictions, “ordinary negligence” suffices for involuntary manslaughter when D has caused death w/a dangerous instrumentality. Guns count, cars don’t.

Commonwealth v. Welanksy (MA 1944): D nightclub owner was absent from premises in the week preceding club fire but knew exits were few/locked/hard to find, massive fire killed many patrons when they couldn’t get out. Fire in public places is an ever-present danger; even if particular D is too stupid/heedless to realize danger, he cannot escape the imputation of wanton/reckless conduct in his dangerous act (or omission, as here) if an ordinary person under the same circumstances would have realized the gravity of the danger. Great White Case (RI 2003): [SL NOT SUFF. FOR MISDEMEANOR MANSL] D’s concert pyrotechnics in violation of fire code started fire that killed many patrons. Misdemeanor violation of fire code was a strict liability offense, raising specter of manslaughter liability for non-negligent act. Misdemeanor manslaughter requires that state show (1) misdemeanor occurred, and (2) misdemeanor was a proximate cause of death; strict liability offenses cannot give rise to misdemeanor manslaughter b/c proximate cause issue cannot be raised in strict liability offenses.

State v. Williams (WA Ct App 1971): [ORDINARY NEG] Undereducated Native American couple failed to seek medical attention for their baby, who died following during several-day period of illness w/ signs of seriousness (abscessed tooth started, ultimately died of pneumonia). Under WA statute, “ordinary negligence” sufficient for involuntary manslaughter (not gross negligence, as under CL), RPPUTC would have deemed it necessary to seek medical help during the period when the child could have been saved. Couple’s ordinary negligence was prox cause of baby’s death, involuntary manslaughter conviction.

Kyron Huigens, Virtue and Criminal Negligence : negligent actors are responsible because of their own flawed judgment/ordering of priorities and blameworthy because their past choices/life plan brought them to heedless disaster (negligence = character judgment for D’s failed practical judgment).

H.L.A. Hart, “Punishment and Responsibility”: in punishing criminal negligence, cts must choose to ask one or both: (1) did D fail to take precautions of RPPUTC? (2) could D, given mental/physical capacities, have taken those precautions? Represents “invariant standard” vs. “individualized conditions of liability”. “Absolute liability” results when cts do not apply #2.

Clarence Thomas, Crime and Punishment: punishment directs society’s moral indignation toward those who violate its rules; a system that doesn’t hold people equally accountable makes them less than full citizens (should not have individualized conditions).

“Sentence in Fatal DWI Spurs Rage in Victim’s Supporters” (2003): D charged with DWI (misdemeanor) after hitting pedestrians who ran in front of her car. Driving while intoxicated not itself criminal negligence/recklessness (in MA); neg/recklessness relates to how car is driven, not driver’s intoxication (evidence showed D wasn’t speeding/driving outside lanes/etc).

MPC § 210.3 Manslaughter (1) Criminal homicide = manslaughter when (a) it is committed recklessly… Comment encourages a strict distinction b/t negligence and recklessness according to MPC definitions. Under MPC, negligence gets negligent homicide, recklessness gets manslaughter or murder. Recall MPC 2.02(2) definitions: Recklessly: Reckless w/respect to any material element of an offense when actor consciously disregards a substantial and unjustifiable risk that the material element exists or will result from conduct. Risk must be of such nature/degree that, considering nature/purpose of actor’s conduct and circumstances known to him, its disregard involves gross deviation from standard of conduct a law-abiding person would observe in the actor’s situation. Negligently: Negligent w/respect to a material element of an offense when actor should be aware of substantial/unjustifiable risk that element exists or will result from conduct. Risk must be of such nature/degree that failure to perceive it, considering nature/purpose of actor’s conduct and circumstances known to him, involves gross deviation from standard of care reasonable person would observe in that situation.

5. UNINTENTIONAL HOMICIDE: DEPRAVED & MALIGNANT HEART MURDER

Commonwealth v. Malone (PA 1946): D 17-yr-old killed 13-yr-old friend when playing “Russian poker”, pulled trigger 3 times (60% chance w/5-chamber gun). Malice evidenced by intentional doing of an uncalled-for act in its callous disregard of its likely harmful effects on others, lack of motive does not exculpate. Ordinary recklessness suffices for manslaughter, but murder requires judgment as to whether actor’s conscious disregard for risk UTC manifests extreme indifference to human life which can be “fairly assimilated to” purpose/knowledge. Q for trier of fact.  Mere recklessness may elevate to “depraved/malignant heart murder” (CL) or “extreme indiff to human life” recklessness (MPC) b/c of high probability of death

U.S. v. Fleming (4th Cir 1984): D Fleming driving while drunk on GW Pkwy at 70-100 mph, weaving to opposite lane, hit vic traveling in opposite direction when he crossed highway. D argues no malice aforethought (under 18 USC §1111 elevates from manslaughter to murder). Malice est. by reckless/wanton behavior that is such a gross deviation from reasonable standard of care that the jury can infer D was aware of serious risk of death/harm; MPC also notes that when recklessness est. an element of the offense, self-induced intoxication making D unaware of risk is immaterial if he would’ve realized the risk if sober (§ 2.08(2)). Usual drunk driving = reckless not purposeful, but here not just driving drunk but driving esp. dangerously such that charge elevates to murder recklessness. People v. Watson (CA 1981): Drunk D speeding, nearly missed one collision but then hit a car in the next intersection. “Gross neg” (manslaughter) and “implied malice” (2 nd degree murder) require awareness of risk of harm, but to different degrees. “Implied malice” if D acts w/high probability it will result in death/harm and does it anyway w/a conscious disregard for life. Ct says there was sufficient evidence here for determination to get to jury. DISSENT: decision rewrites implied malice law to make all vehicular homicides involving alcohol 2nd degree murder. Drinking alcohol doesn’t = conscious disregard for life (many drunks make it home safely, act of drunk driving not “likely” to kill).

Ct decision/Leg Response Interactions: CA decision: Watson (murder sustainable when malice is “implied” by conscious disregard for life in driving drunk and dangerously). Leg response [mitigating]: Involuntary manslaughter if D causes death w/o gross negligence but under influence, gross vehicular homicide if w/ gross negligence (but doesn’t preclude finding of murder upon facts exhibiting wantonness/disregard for life sufficient for implied malice). VA decision: drunk driver only liable for involuntary manslaughter unless state proved independent “malice”. Leg response [bumping]: involuntary manslaughter if D under influence and unintentionally causes death, aggravated involuntary manslaughter if D’s conduct so gross/wanton/culpable as to show disregard for life.

6. FELONY MURDER

Regina v. Serne (Eng. 1887): D took out insurance policies on imbecile son and furniture, house burned and 2 sons died. Any act known to be dangerous to life and likely in itself to cause death, done for purpose of committing a felony, which causes death = murder. Here, doesn’t matter if D wanted children to live; if he set fire, comparable to stabbing kids. FM relieves P of need to prove premeditation Many states have supplemented classic 1st degree FM list. Most states (PA-style majority): arson, rape, robbery, burglary. Some additions: espionage (fed), cocaine distribution (FL), carjacking/trainwrecking (FL), use of WMDs (ID). Unenumerated felonies = “other kinds of murder”, 2nd degree. England repealed FM, states differ. HI/KY abolished, AR/DE limit, OH purposefully re-included, MPC critical but includes FM b/c “extreme indiff to human life” can be “presumed” where person causes death in course of enumerated felonies.

People v. Aaron (MI 1980): Abrogated FM rule. For murder, felony does not satisfy mental element. D must have intent to kill/harm or wanton/willful disregard of likelihood for murder, and issue of malice is ALWAYS a jury question. Enumerated felonies will still bump to 1st degree (but mental element must be met, purposefully/knowingly/grossly recklessly causing death). NM followed MI Other states declined to follow (e.g. CA, saying ct violating separation of powers authority to overrule statute even if out of favor).

JUDICIAL LIMITATIONS:

“ Inherently dangerous”: cts may limit application of FM to: 1. “Dangerous” felonies, e.g. CA, typically a list (“elements test,” lumps together every crime w/in a felony category (arson, rape, etc)). Cts disagree on which offenses are “inherently dangerous” (e.g. cocaine dealing). 2. “Inherently dangerous acts” e.g. MA, (“facts test,” case-by-case as to whether act was inherently dangerous to life).

People v. Phillips (CA 1966): D chiropractor may have told family he could cure daughter of eye cancer w/o surgery, girl died w/o proper treatment, charged $700 for care/meds he did provide. D could be prosecuted for grand theft ($700 meds charge) but not for FM; grand theft not an “inherently dangerous” felony looking to the elements of the felony in the abstract (not facts of particular case). W/o felony murder, instruction should require jury to find implied malice, express or implied (intent w/conscious disregard for life to commit acts likely to kill), and false representations to family do not conclusively show D’s intent w/conscious disregard for life to kill (not clear D subjectively appreciated peril/no conscious disregard for life). FM not viable, jury Q as to consciousness of disregard.

“ Merger”: inherently dangerous act cannot be part of the act of killing, lesser offense merges into greater offense. Assault can’t serve as predicate felony for FM b/c assault is presupposed by murder charge.

People v. Smith (CA 1984): [No FM] D Child abuser parents hit child who died: does the child abuse merge with the killing? No, b/c no independent purpose for the child abuse, purpose was the very assault that resulted in death. Ireland (1969): 2nd degree FM instruction not proper when based upon felony which is an integral part of the homicide and is shown by evidence to be an offense included w/in offense charged (e.g. assault w/a deadly weapon). Wilson (1969): assault w/deadly weapon again merges. Burglary also merges where entry would be nonfelonious but for intent to commit assault, and the assault is integral to the homicide. Sears (1970): assault still merges when it was intended for someone other than an intervening victim (e.g. intended victim’s daughter). Burton (1971): refined FM rule: (1) felony included in facts of homicide and integral thereto? (2) does homicide result from conduct for independent felonious purpose (e.g. armed robbery) or is it a single course of conduct w/single purpose (e.g. assault/killing of wife w/gun)?  Ct notes that FM doesn’t deter w/o an independent purpose (rationale for merger) Ct suggests appropriate underlying felonies for FM: furnishing narcotics, driving under influence of narcotics, poisoning food/drink/medicine, armed robbery, kidnapping, child abuse by malnutrition/dehydration.

--Criticism—

James Tomkovicz (1994): (a) Kantian argument: FM inconsistent w/several modern notions of culpability: (1) doesn’t reflect notions of intent (accidental still punished the same), (2) absence of gradations (negligent killings punishable as murder, not the usual gross recklessness limitation), (3) not proportionate liability/condemnation across offenses (only requires malice, not premeditation) [Kantian argument, people should get own just desserts]. (b) The alleged “deterrent” benefits of FM are a “delusion”, not shown that felons actually hear rule’s deterrent message as cts imagine, so out FM departure from normal fault conceptions is not justified. (c) Social experiments show most people morally equate non-reckless felon culpability w/reckless non-felon crime which would usually result in manslaughter. If anything, should be felony manslaughter not felony murder.

ATTEMPTS: note: merges w/offense if attempt is completed (crime). Attempted FM also not an option in most juris.

CL MPC (most juris use, stricter but allows renunciation) MR [exc: some cts Purpose (specific intent) no matter what the For conduct crimes (e.g. drug possession): allow neg/reck MR of the offense (e.g. murder, must have same MR as underlying offense when prosecuting purpose to kill not just recklessness) For result crimes (e.g. homicide): purpose to SL crimes, e.g. cause OR belief (knowledge) that conduct will attempted stat likely cause the result (5.01) rape] AR Dangerous Proximity: factfinder must Substantial Step: D must take substantial determine if D came dangerously close to step, strongly corroborative of criminal completing crime (Peaslee yes/soliciting fire- purpose, toward committing crime (lower bar setter was D’s last act vs. Rizzo no/case-by- than DP) (Buffington no/planning not an case basis but here not DP when not even in “appreciable fragment” of robbery (Braman: presence of intended victim) probably wrong, ct having trouble switching from DP test, normally having Note: a few cts use “equivocality test”: how weapons/laying in wait WOULD constitute close to D’s actions speak to having the SS), Dorsey no/not having enough drug purpose of committing the crime? ingredients means no SS)

NOT insufficient as matter of law: a. Lying in wait/searching for/following victim b. Enticing victim to go to place of commission c. Reconnoitering place of commission d. Unlawful entry to place of commission e. Possession/collection/fabrication of materials to be used f. Soliciting innocent agent to engage in crime Renunciation Abandonment NO defense once liability Complete and voluntary renunciation req’d, attaches cannot be motivated merely by circumstances increasing risk of apprehension or desire to move/postpone crime advantageously) Factual/Legal -Factual impossibility is no defense (e.g. trying (same, see CL) Impossibility to break into safe through incantations) -Legal impossibility IS a defense (e.g. trying to buy firearm thought to be illegal that’s actually legal)

NOTE: cts often decide culpability and label as they want, b/c often possible to characterize either way. P will argue factual/D will argue legal (e.g. accepting “stolen” goods that weren’t really stolen) Punishment Reduced factor, usually ½ penalty of offense Equal to full offense, EXC: capital crime/1st (see CA/fed e.g.s in long notes) degree felony = felony in the 2nd degree (max 10 yrs) as attempt

Why Punish Attempts? a. Posner: deterrence, increases cost to potential criminal w/o increasing penalty for crime, incentivizes changing mind at last minute, if attempt = same punishment as successful crime, D will just try again b. HLA Hart: (Kantian): why punish attempter less when equally wicked intent? Guilt of D is the same even if injury felt by attempt victim is less.

Commonwealth v. Peaslee (MA 1901): D Peaslee intended to burn building/goods, arranged good for max combustion, solicited younger man to set fire, man refused, D and young man drove toward building again but changed minds and drove away. Preparation is not attempt unless it comes dangerously close to success (case-by-case determination; here solicitation of fire-setter would have been D’s “last act” and sufficient for conviction if successful/properly set out).

People v. Rizzo (NY 1927): Ds had intention to rob a man of a payroll, set out in car searching for man they believed possessed it but did not find him at any of the places they stopped or when they were arrested (cops followed them). Attempt only = those acts tending to commission of crime that are so near its accomplishment that in all probability crime would’ve been committed if not for interference, hard case-by-case inquiry. Here, still looking for payroll man, no $ drawn yet, had plan but opportunity never came, so not guilty of attempt (no dangerous proximity) if D didn’t reach presence of victim target (parallels robbery, murder, burglary, etc).

U.S. v. Buffington (9th Cir 1987): Informant told police Ds intended to rob bank, drove by, wore disguises, but power outage interfered and they drove away after bank locked doors. Mere planning does not suffice as a substantial step corroborative of firm criminal intent; here, despite intent, planning was not an “appreciable fragment” of a bank robbery nor a step of such substantiality that, unless frustrated, the crime would’ve occurred. * Suggests difficulty in moving to substantial step from dangerous proximity (Braman says usually this would constitute substantial step (had weapons, laying in wait), but it’s a fuzzy line and cts interpret differently)

People v. Dorsey (IL Ct App 2005): D charged w/intent to manufacture 30-150 grams of meth, told police of that intent, but only had enough material to make max ~15 grams (by either expert’s estimate). D can be convicted of unlawful possession of meth ingredients w/intent to manufacture, but cannot be classified under intent to manufacture more than what he has taken a substantial step (obtained materials) to make (sentence reduced to reflect amount had). DISSENT: D does not need to have intent AND present ability to commit crime; intent w/ plan to obtain rest of necessary materials suffices. GROUP CRIMINALITY

Complicity: attaches underlying offense to members of group when 1+ of them commits underlying crime Conspiracy: separate offense distinct from underlying crimes group wishes to commit

ACCOMPLICE

AR Solicit/aid/agree to aid/encourage (Wilcox, concert). MPC (2.06) notes: may incl causing innocent person to commit crime, failing to fulfill legal duty to prevent crime, and (2.06(4)) “when causing a result is part of an offense, guilty of complicity to offense if causing result w/kind of culpability sufficient for commission of the offense”

--Low bar, can be simply depriving victim of an advantage (Talley, telegraph) --Can be convicted even if principal doesn’t know of aid/encouragement or isn’t convicted himself MR 1. Mental state req’d by underlying offense (Wilson, felonious intent is a jury Q, here lacked intent to break into own store) + 2. Purpose to assist principal. CL: “stake in the venture” or less commonly “nexus” b/t encouragement and crime (though neither sufficient nor required), MPC: “purpose of promoting/facilitating” crime (Gladstone, no stake in drug-selling venture of another, charged w/aiding sale not purchase, Hamilton, Hamdan) Possible --Derivative Liability— Defenses? CL: Generally, principal must have felonious intent (Hayes, aiding “thief” who only wanted to entrap D) but sometimes accomplice is still liable, e.g. law enforcement (Vaden) MPC: still liability (5.01(3)) regardless of whether principal has felonious intent

-- Gebardi Exception (victim/inevitably incident)— E.g. transported prostitutes, drug buyers, lovers of adulterers, stat rape victims, those supervised by kingpin (Pino-Perez) but NOT those “assisting” kingpin (Pino-Perez-supplier, Ambrose-bought cops) —note: 2nd Cir disagreed, those “assisting” are NOT liable as “aiders/abettors” (Amen, also Pino-Perez dissent) Punishmen FED SENTENCING: t [Aggravating] 1. If D was organizer/leader of 5+ participants, up by 4 levels 2. If D was manager/supervisor of 5+ participants, up by 3 levels 3. If D was manager/organizer of any other criminal activity, up by 2 levels [Mitigating]: 1. If D was minimal participant, down by 4 levels 2. In between, down by 3 levels 3. If D was minor participant, down by 2 levels

May also created alternative statutory crimes (e.g. kingpin statute) to punish differently

 Fletcher: 5 ways of participating in crime: (1) single actor, (2) co-perps, (3) perp-by-means (e.g. child/insane person brought in to implement crime, (4) aid/abet, (5) instigate/solicit crime. German/Soviet rules punish accessories less severely (should be in proportion to wrongdoing/culpability, accessory less culpable), but Anglo-American and French systems say accessories/perps should be punished alike.

 Studies: respondents usually grade liability depending on degree of assistance (disagree w/prevailing American rules punishing accomplice/perp equally). AR: solicit, aid, agree to aid, attempt to aid Wilcox v. Jeffrey (Eng. 1951): D writer attended illegal concert by American musician (labor laws forbid) in order to get story for his paper. D aided/abetted concert, might be diff if he had protested but went, paid, encouraged, wanted story for paper. --Encouragement sufficient

Martin v. Tally (AL 1894): D Tally wired telegraph operator friend to prevent warning telegraph to get to vic (Ross) fleeing from family of D that was angry he had seduced a relative. Vic was killed by Skelton family, D Tally was an accomplice to murder. Aid/abet assistance doesn’t need to be but-for cause, enough if it renders crime easier for perp by causing any disadvantage/lost chance of life to vic (even if perp would have succeeded anyway). Hypo: crowd encouraging killing. AR: encouraging (aiding, bar is very low), MR: purpose -Can be convicted even if principal doesn’t know about the encouragement

Wilson v. People (CO 1939): D Wilson was drinking with perp Pierce, who stole Wilson’s watch (Pierce denied). “To get even” D Wilson helped Pierce break into drugstore (Wilson did not enter but went to father DA’s office to phone police), convicted of aiding/abetting burglary/larceny of Pierce. Jury question as to whether assistance was given with felonious intent or not. -Accomplice must have the mental state req’d by underlying offense

State v. Gladstone (WA 1980): Undercover cop asked D Gladstone to sell him marijuana, D Gladstone said he didn’t have enough and referred him to another person, Kent, who had amount and drew a map to Kent’s house. Charged with aiding/abetting sale of marijuana not purchase. Although aider need not be present at commission of crime, conviction depends on proof that he did something in association/connection w/principal to accomplish crime; mere communication that another might commit crime is not sufficient. -Accomplice must purposefully assist the principal. Cts look for: stake in venture, nexus (neither is sufficient or req’d though) DISSENT: Jury warranted in finding D entertained purpose to instigate crime of selling marijuana, jury is in a better position to evaluate intent than ct (institutional argument).

U.S. v. Hamilton (2d Cir 2003): D Hamilton was a cop convicted of aiding/abetting maintenance of a residence for drug distribution; he provided crack in exchange for info leading to dealers. Charge stood b/c it was for aiding/abetting knowingly maintaining place for drug distribution, not aiding/abetting sale (regardless of purpose re: drug sales, intent to maintain residence was there).

Hamdan v. Rumsfeld (D.C. Cir. Pending): Hamdan drove Osama bin Laden to farms in order to earn money for family. Aiding and abetting terrorist plots?

--DERIVATIVE LIABILITY: accomplice liability usually only attaches through principal, but not always! Policy considerations.

State v. Hayes (MO 1891): D Hayes assisted Hill (who he thought was a co-perp but actually was related to storeowner) in entering shop through window and stealing bacon, then accepted bacon outside store before being captured (Hill was not arrested). D cannot be guilty of aiding/abetting if principal doesn’t have a felonious intent and merely wants to entrap D; Hill’s duty was to condemn any preexisting plan to steal and not engage D Hayes (principal’s intent is a jury question).  Under MPC, accomplice (5.01(3))

Vaden v. State (AK 1989): Undercover agent Snell illegally hunted foxes with help (provided shotgun, maneuvered aircraft) from hunter D Vaden after tip re: illegal practices, D Vaden charged as accomplice in illegal hunting. Abettor’s state of mind determines guilt, not principal’s; public authority justification defense (also entrapment/duress/heat of passion defenses) is personal to agent and does not transfer to accomplice. DISSENT: Criminal act was provided by agents, w/o it, D’s acts don’t amount to crime even if done with evil intent. Must be limits on degree of police involvement in criminal activity which will be tolerated. Under MPC, accomplice (5.01(3))

Gebardi v. U.S. (US 1932): Mann Act criminalizes transporting in interstate/foreign commerce a female for purpose of prostitution/debauchery/immoral purpose; consent of victim/inevitably incident actor does not subject him/her to conspiracy liability (also e.g. lover of adulterer, victim of statutory rape, drug purchasers).

U.S. v. Pino-Perez (7th Cir 1989): D Pino-Perez supplied cocaine for drug kingpin Nichols in WI, employees no accomplice liability b/c inevitably incident, but for supplier aid/abettor must associate w/venture and participate as something he wishes to bring about (Hand), determines where liability stops (so suppliers still included, but discludes those supervised). Distinguishes from Ambrose, which said judges could sentence aiders/abettors to a reduced minimum provision (not 10 yrs, the kingpin minimum); Pino-Perez says accomplice gets same sentence as principal, otherwise exceeds judicial authority in sentencing, aiding/abetting implies fuller engagement w/activity anyway, and there’s been no case where principal punishment was not unreasonable for accomplice anyway because of egregiousness of conduct. DISSENT: (1) Treating aider/abettor as kingpin is to demolish graduated punishment structure, (2) introduces crazy patterns of liability (e.g. assistants outside organization receive higher punishments as aider/abettors than operatives w/in organization) (3) prosecution should still have to prove supervisory role. CONSPIRACY: 1 overt act + MR of purpose + agreement = conspiracy (lower burden than attempt). B/c of group nature, can overcome individual Ds’ venues/SOLs, changes evid/hearsay rules.

AR (1) Agreement b/t 2+ individuals that 1 will commit crime a. Does NOT need to be express if concerted action was contemplated/invited and participants adhere to scheme (Interstate) b. May or may not be inferable from conduct (Alvarez 1-not guilty and 2-guilty) c. Agreement to ancillary details (e.g. why money was dirty, Stavroulakis) NOT needed as long as agreement to “essential nature” of plan (NOT Rosenblatt, didn’t know money was dirty in first place)

(2) 1 “overt act” toward commission of lesser crime (MPC + majority, CL doesn’t always req), NOT necessarily needed for major crime

--Liability begins at moment of agreement MR (1) Purpose to agree (2) Intent for crime to succeed (note: mistake of fact/law defeating underlying offense defeat conspiracy too, Rosenblatt, above) Possible (1) Merger? NO, conspiracy is a separate crime. Rationale: greater dangers posed by group activity, Defenses? separate penalties make recruitment harder/allow cops leverage to flip small fry to pursue higher- ups, calibrating penalties disincentivizes getting into bigger crime

(2) Impossibility? NO defense

(3) Didn’t agree to all acts/consequences (e.g. shooting cop during robbery)? MPC/reform states: not liable, traditional states: liable for all resulting acts. Pinkerton: conspirator liable for any reasonably foreseeable crime that falls w/in scope of conspiracy, even if he himself didn’t commit it. Fed sentencing calibrated by “relevant conduct” usually excludes, but it remains an option esp under specializes statutes (e.g. drug conspiracies)

(4) Withdrawal (MPC+majority, CL minority DISALLOWS): D must show: (a) he has taken affirmative steps to disavow/defeat objectives of conspiracy, AND (b) made reasonable effort to communicate those acts to co-conspirators or disclose scheme to law enforcement. --P burden to show withdrawal, otherwise continued participation presumed (Pinkerton)

(5) Bilateral requirement? SOME cts require bilateral agreement to conspire, so if 1 party is faking/incompetent/undercover cop, no conspiracy. Other cts: only unilateral agreement needed Punishmen CL (majority): “CUMULATIVE” punishment for conspiracy AND target offense, non-merged t MPC (+reform juris, incl fed): prohibit cumulative punishments

Pinkerton v. United States (US 1946): Brother Ds Walter and Daniel Pinkerton were indicted on several substantive counts of IRS fraud and one each of conspiracy; evidence showed that Daniel did conspire but did not participate directly in substantive offense. Daniel was in jail at time of substantive offense. Still, without withdrawal, partnership in crime continues and over act of one = overt act of all, joint liability regardless of which partner committed. Places burden on D to show withdrawal, if none, continued participation presumed.  DISSENT: creates too broad a standard of vicarious liability, evidence of general conspiracy agreement should not cover substantive crime of one

Interstate Circuit v. United States (US 1939): Ds: 8 film distributing co.s, 2 film exhibiting co.s, D Interstate (one of latter 2) sent letter clearly addressed to all 8 distributors asking compliance w/restrictive price-fixing/film showing requirements as condition of continuing to receive Interstate’s exhibition (resulted in higher ticket prices and less business to other exhibitors and net income to Interstate). No direct testimony as to agreement, but inference of agreement can be drawn when all 8 knew of gains if working together and loss if not (motive for concerted action). Agreement not a prereq to conspiracy liability if concerted action was contemplated and invited and participants adhere to scheme, otherwise non-agreeing party would outprice the others. Distinguishable from cases like Gnutella, relies on participation of all, also have to have sufficient # violations of file sharing which most users don’t meet

U.S. v. Alvarez (5th Cir 1980): D Alvarez dropped off drug importers at airport and helped to load appliances on plane, responded with “smile and nod” to undercover cop’s question of whether he’d be there at unloading (of marijuana) on their return. D needs 2 intents: (1) intent to enter into agreement, (2) intent to commit underlying unlawful act. Promise to assist in uncommitted offense does not in itself show knowledge of conspiracy/agreement to join, promised to unload plane (lawful act), requires too-long chain of inferences to think he agreed to underlying act (no evidence he agreed to essential plan, even if he had nefarious purpose). Different kind of crime? Whole endeavor (unlike Interstate) not certain to fall apart if not everyone agrees U.S. v. Alvarez (5th Cir 1980 en banc): Alvarez’s joinder in agreement IS inferable, evid that he went there was enough, (1) evid he intended to be at unloading site, (2) nodded head can be viewed as assurance to assuage jittery accomplice (furtherance of conspiracy). DISSENT: Smile/nod not sufficient to prove participation, was doing lawful act, high potential for injustice.

U.S. v. Stavroulakis (2nd Cir 1992): D Stavroulakis conspired w/ Kostas Giziakis to launder money, S knew it was from narcotics but G thought it was from gambling (had objection to laundering drug money). Conspirators do not have to understand/agree to all ancillary details (eg why money was dirty) just agree to “essential nature” of plan (laundering money made dirty by one of enumerated causes). Unlike Rosenblatt, where one partner didn’t realize money was dirty (thought he was helping with tax evasion of clean money), didn’t agree to “essential” nature. Bilateral/Unilateral Views: some cts: conspiracy must be bilateral, if one is faking/incompetent/undercover cop, no conspiracy; other cts: disagree, only unilateral agreement needed

Specific Statutory Conspiracies

Racketeer Influenced and Corrupt Organizations Act (RICO) a) Using/investing proceeds of “racketeering activity” (extortion, money laundering, murder, etc) to acquire an enterprise b) Acquiring/maintaining an interest in an enterprise through racketeering activity c) When a person employed by or associated with an enterprise conducts or participates in the conduct of the enterprise, directly/indirectly, through racketeering activity, d) A conspiracy to commit any of the above offenses. Enterprise must have some existence apart from that inherent in the racketeering activity If conspirators share common purpose, each responsible for acts of others  New concept of criminal “enterprise,” object of conspiracy not merely to commit predicate crimes but to violate a substantive RICO provision

State Gang Laws: like RICO, attacks participation in criminal enterprise and provides additional punishment for offenses if committed as part of an enterprise e.g. CA (p. 367): (1) association of 3+ ppl, (2) common name or sign/symbol, (3) one of primary activities = commission of certain specified criminal offenses and engages through members in a pattern of criminal gang activity. Zermeno, one member assaulted a non-member and another member prevented non-member’s friends from joining fight, pattern of criminal gang activity not established (2nd member only aid/abettor, and they together commit 1 offense).  Usually punish participation not membership (some states even found latter unconstitutional) Punish using economic conception of deterrence, (1) sentencing enhancements bolster deterrence re: group crime, (2) forfeiture laws seize fruits of crime

DEFENSES: (1) Negative: P can’t prove all elements (2) Positive: (a) Justifications (self-defense/necessity, D made the right choice in a hard situation) or (b) Excuses (duress/involuntary intoxication/insanity/sometimes self-defense: D made the wrong choice but shouldn’t be blamed anyway)

SELF-DEFENSE

Classic (1) Threat, actual or apparent, of use of deadly force against D (2) Threat is unlawful and immediate [exc: BWS] (3) D honestly and reasonably believes deadly force was necessary to prevent imminent peril (some juris define as “death/GBH”) [exc: TMD/BWS] Nahak, Expands #3: East a. May be imminent threat of gross individual indignity too Dakota b. Honest belief suffices, even if unreasonable (MPC allows too) Imperfect Many juris: if D’s belief was honest but unreasonable, D gets partial defense mitigating to manslaughter Self- (Goetz) Defense True Man Split juris: no duty to retreat, even if safe to do so, if: Doctrine (1) D is w/o fault in provoking confrontation and (2) D is in a place he has a lawful right to be (3) There placed in reasonably apparent danger of imminent harm (4) Force used was reasonable

EXC: castle doctrine, even juris WITH a duty to retreat immunize when attack occurs w/in the home. Some, e.g. LA, also allow homeowner to subjectively decide when deadly force is reasonable necessary. EXC: some states: when family member/resident of same house Battered Cts divided (Norman 1, yes, vs. Norman 2): Allows D to proffer evidence of BWS to overcome “imminent” Woman threat requirement (#2) and get to jury on question of “reasonableness” UTC of BWS Syndrome

People v. Goetz (NY 1986): D Goetz shot 4 unarmed kids on subway after they asked him for money, had been previously mugged and maimed but took time to thoroughly shoot them all in special “pattern of fire”. NY law: what D “reasonably believes” to be necessary to defend against what he “reasonably believes” to be imminent force. D doesn’t have to be correct about force necessary but must meet objective notion of “reasonableness” UTC (hypothetical reasonable person in D’s circumstances, incl physical movements, relevant knowledge, physical attributes of those involved, etc), differs from MPC: “culpability which arises from a mistaken belief in the need to use such force should be no greater than culpability such a mistake would give rise to if it were made w/respect to an element of a crime”D only needs to show “belief” force was necessary to prevail on self-defense claim After case, changed standard to closer to what Goetz requested, subjective standard of reasonability from point of view of actor under circumstances

State v. Norman (NC Ct App 1988): D Norman killed her husband, who abused and prostituted her, when he was asleep. Victim’s passiveness at moment of killing does NOT preclude defense, considering BWS (jury Q as to reasonableness). 1. Appeared necessary? Yes, in light of abuse likely to recur. 2. RPP belief? Yes, vulnerability, inability to withdraw. 3. Not the aggressor? Yes, provoked considering totality of circumstances. 4. Didn’t use force beyond what reasonably appeared necessary? Yes, battered victim does not need to wait for attack for defense to apply, appeared necessary to protect self.

State v. Norman (NC 1989): Speculative beliefs about future harm do not constitute reasonable belief of immediate harm, even where there is evidence of BWS, imminent harm or threat are needed to justify deadly force (as a matter of law). Relaxed standards would make homicidal self-help ok  No majority position, cts divided  Some suggest bad science and bad policy (faulty case studies, insufficient proof)

State v. Kelly (NJ 1984): Expert testimony should be allowed in BWS cases re: self-defense, relevant to (1) D’s credibility re: beliefs, (2) reasonableness of D’s belief that she was in imminent danger (needed to educate jury, but remains jury Q ). Meets usual expert requirements: (1) subject outside usual juror’s knowledge, (2) field is developed enough that expert’s testimony can be sufficiently reliable, (3) witness has sufficient expertise. NECESSITY: D chooses lesser of 2 evils. Justification/criticism: prevents greater harm vs. slippery slope of letting individuals take law into own hands.

CL MPC 1. Imminent Threat MUST be imminent Choice must be reasonable, imminence not req’d but Threat? bears on reasonability/no alternatives 2. D CANNOT have brought on choice of evils No restriction (but D may be liable for crime of Responsibilit neg/reck if neg/reck brought about conditions y for choice? requiring the choice) 3. Homicide? D CANNOT kill (Dudley)(majority) No bar, D can kill 4. Contrary to No defense if contrary to public policy No defense if contrary to public policy decision public policy? decision (Schoon, Hill) (Schoon, Hill)

Applications:

Prison Escape Unger, absence of Lovercamp factors not fatal, jury determination Lovercamp: narrower, must be: a. specific, immediate threat b. no time for complaint/history of futility of complaints c. no time/opportunity to resort to cts d. no force/violence used in escape e. prisoner immediately reports to authorities when safe Civil Protest Schoon/Hill, necessity impossible in INDIRECT civil disobedience (e.g. trashing IRS office or trying to kill abortionist) even if harm is imminent b/c: a. no legally cognizable harm, so can’t be “lesser” evil b. no causal relationship b/t conduct and harm averted (not likely to abate) c. legal alternatives exist

A. Prison Escape

People v. Unger (IL 1977): D escaped low-security “honor farm” area of prison, claimed he did so to escape assault and sexual molestation by other inmates with intent to return to the prison after he got help. Testimony sufficient to raise necessity defense (broad) (D still exercises free will, not compulsion, but chooses lesser evil), absence of one of Lovercamp factors not fatal, defense should be allowed for jury determination. DISSENT: necessity justification for prison escape must be narrowly available; should be available, but narrowly, using: Lovercamp factors: (1) specific immediate threat (death/substantial bodily injury/sexual assault) (2) no time for complaint to authorities/history of futile complaints (3) no time/opportunity to resort to courts (4) no force/violence used in escape toward prison personnel or innocents (5) prisoner immediately reports to proper authorities when safe. B. Civil Protest

United States v. Schoon (9th Cir 1992): Ds protested US involvement in El Salvador, trashing IRS office. Asserted “necessity” of avoiding further bloodshed in El Salvador as defense. Must show: (1) chose lesser evil, (2) acted to prevent imminent harm, (3) reasonably anticipated causal relationship b/t conduct and harm averted, (4) no legal alternatives. Necessity never proven by indirect civil disobedience, b/c (1) no legally cognizable harm, can’t be lesser evil, (3), no likelihood of abatement, (4) legal alternatives exist (congressional action), even though (2) harm protested may be imminent.

C. Murder/Protest/Necessity?

U.S. v. Hill (N.D. Fl. 1994): D shot a doctor at an abortion clinic, raised necessity defense (intervening on behalf of fetuses). Must meet 4 elements, clinic killing cannot b/c (1) no legally cognizable greater harm, (2) imminent “harm” was not legally cognizable, (3) causal relationship not linked to legally cognizable “harm”, (4) conflicts with public policy. Cannot be applied to justify averting acts expressly declared by highest court to be constitutionally/legally protected. CL: simple response, no defense to homicide  Rationale: don’t want to let jury relitigate Roe

Regina v. Dudley and Stephens (Eng. 1884): Seamen lost at sea with a younger boy ate him after 20 days, no rescue in sight, he was likely to die first and they probably would not have survived without eating him. No necessity defense in case of homicide, slippery slope (if principle admitted, could excuse inexcusable crimes), if too harsh, sovereign can give mercy. Like Dudley, most Am. Juris say no necessity defense to homicide, MPC disagrees (net saving of innocent lives is ethically preferable, choice should at least be available) DURESS: Rationales: voluntarist: D is excused for bad act b/c she could not resist the threat of force. Where will is overborne it is impossible to deter and unjust to punish, expressive: D is excused from bad acts if they reflect appropriate values. As with necessity, ct must weigh moral quality of choice made. NO applicability to POWs post-Fleming.

CL MPC Threat of: Death/GBH Unlawful force Against: D or close friend/relative Any person Reasonable: “Ordinary person” would yield Person of “reasonable firmness” [BWS: compare Romero would not resist vs. Webb] Imminence: Must be imminent (Contento- Need not be imminent Pachon, followed on (Toscano, threat of future harm plane/immediate threat to sufficed) family in Colombia, no escape, reported to authorities ASAP) Self-created: NOT self-created Not recklessly, knowingly, or purposefully created Involving murder: NOT involving murder (MAY involve murder)

People v. Romero (CA App Ct 1992): Ds Terrance and Debra Romero (battered woman) were charged with robbery and attempted robbery, BWS testimony is as applicable to duress cases as self-defense cases (robbery at batterer’s insistence vs. killing of batterer), relevant to showing duress: reasonable doubt that D acted in exercise of her free will by showing she committed the charged crime under threats or menaces sufficient to create a good-faith, objectively reasonable belief that there was an imminent threat of D/GBH (not available as defense to homicide).

U.S. v. Webb (5th Cir 1984): D June Webb charged with accessory to murder/2 counts injury to child after being implicated in physical abuse of child (died after scalding by father). D argued she did not seek medical care for child out of fear of husband (abuser), even if not under duress, general involuntariness instruction should have been given. Less stringent instruction would render meaningless, fear of reprisals does not constitute coercion strong enough to make act involuntary, not reasonable despite BWS (contrast to Romero —more about character evaluation than whether will is overborne?) .

State v. Toscano (NJ 1977): D Toscano aided in preparation of fraudulent insurance claims (conspiracy to obtain money by false pretenses) but said he did so under threats to self and family, did not report to police, no compensation, moved/changed phone number/applied for gun. Incorporates MPC approach , duress shall be a defense to crime other than murder if D engages in conduct he was coerced to do by threat of unlawful force against him or another which a person of reasonable firmness in his situation would have been unable to resist (middle road, doesn’t ignore subjective estimate as to degree of danger but doesn’t bend to weaknesses/strengths of particular defendant), evid enough to raise here. Under CL, no defense (not imminent, just words), had other options (go to police, move, etc)

U.S. v. Fleming (C.M.R. 1957): D accused of collaborating with the enemy (propaganda) while a POW, acted under threat of being marched to “Caves” where many died. D argued threat of a slow death served as coercion as well as immediate threat of death, rejected, (1) acted under mere assertion of threat (unclear if it would actually cause death), (2) danger must be “ immediate ” such that D is at “last ditch”.  After case, military code reformed so that there is NO duress defense to POWs  Duress defense DOES apply to civilians

U.S. v. Contento-Pachon (9th Cir 1984): D swallowed bags of cocaine and transported them to US, charged w/ drug possession and intent to distribute, D claimed he had been threatened in Colombia, didn’t report to police b/c of corruption. D met elements of duress : (1) immediate threat, (2) no escapability, (3) surrender to authorities when possible (D submitted to stomach x-ray at security), but did not have necessity defense (1) source in natural rather than human forces, (2) must act to promote general welfare (to be lesser evil). Compare to Fleming (again, expressive evaluation of the choice made, who’s put at risk, etc). CL (majority rule for duress), not so different from necessity defense in practice, not a lot of use for duress, MPC diff (homicide defense) (e.g. faking insurance docs, Toscano—same result under either?)

INSANITY: note: juries often convict as often under different standards, extra-doctirnal character judgments at play. See long notes for various rationales.

M’Naughten Rule D excused when, b/c of illness, he lacks the capacity to understand the nature or -Majority wrongness of his act (e.g. mom squeezing baby like grapefruit/D thinking he was (reemerged after told by president to kill someone) Hinckley) --Burden of proof of insanity on D -Cognitive --“Guilty but insane” punishment may apply (below) Durham Rule D excused when he wouldn’t have committed the crime but for mental illness -Volitional --Shifts burden of proof of sanity to P (Green, schizophrenic killer, if act consistent -Used briefly w/sanity or insanity tie goes to D) MPC Rule D excused when, b/c of illness, he can’t control his behavior (wrong is due to an -Volitional “irresistible impulse”) (Freeman, addict seller, Bobbitt) Guilty but Insane Some cts use stricter M’Naghten-style rule but allow different penalties for those whose mental illnesses don’t rise to level of insanity Abolition/MR Model D excused ONLY when insanity completely negates an element of a crime. If D had (UT, ID, KS, MT) intent to commit act, liable even though definition of crime may require more specific MR, like malice. --Removes P burden of proving specific intent re: wrongfulness --Some cts have expressly rejected, saying insanity defense req’d by due process

1. M’Naghten Rule (reemerged as majority), cognitive: (a) D does not know nature /quality of act he is doing (e.g. mother squeezing baby thinking it’s a grapefruit) OR (b) if D does know nature of act, does not know wrongness (police officer thinks president ordered him to kill someone) Criticism: unfair/out of touch w/medical science in compartmentalizing brain, worse for society (more convictions leading to release back into the community after as opposed to real treatment), unrealistic for experts (“professional perjury” to testify as to knowing right/wrong). 1. Durham Standard, causal: expanded definition (used briefly), D excused when person would not have committed the crime but for mental illness. More acquittals, shifted burden of proof of sanity to P (Green, TN) Criticism: eliminated right/wrong dichotomy and ended expert problems but fails to give factfinder any real standard by which competency of D can be judged 2. MPC, volitional: D excused when a mental disease impairs her capacity to control her behavior (“irresistible impulse” standard, excused if mental disease impairs control), similar to Durham [Freeman, 2nd Cir, Bobbitt, less stringent instruction] 3. Post-Hinkley Trend: backlash, compromise b/t M’Naghten and Durham and/or changed burden and standards of proof 4. Guilty But Insane: some juris allow stricter definition of sanity but retain different penalties for those whose mental illnesses do not rise to level of insanity 5. Abolition and the Mens Rea Model (ID, UT, KS, MT): abolished as defense to crime, insanity only admissible as it relates to a material element of a criminal offense, e.g. intent; only where insanity completely negates a material element is D acquitted (if person had intent to commit a particular act, she is held liable even though definition of crime may req more specific MR, like malice), removes P’s burden of proving specific intent re: wrongfulness Some cts reject, finding insanity defense part of due process

US v. Freeman (2d Cir 1966): D found guilty of selling narcotics, was himself a longtime heroin addict and alcoholic who had suffered repeated brain traumas and delusions, expert testimony under trial ct’s M’Naghten test had conflicted as to whether he knew the difference b/t “right and wrong.” Ct adopted MPC test as best [rationales listed above]

State v. Green (TN 1982): D Green, a paranoid schizophrenic with longtime symptoms, killed a police officer, had previously had some interactions with people and police officers where he seemed normal, but evid of schizophrenia and violence were also overwhelming. Under Durham standard, P burden to prove sanity beyond reasonable doubt, here they didn’t (acts at time of killing were arguable consistent with sanity AND insanity, burden not met (should’ve used med experts to stand alone, counter D’s)

Bobbitt: less restrictive “irresistible impulse” instruction given, req’d only that her “mind was so impaired by disease that she was unable to resist the impulse to commit the crime”, squeezed BWS into MPC, but drs testified that she was too purposeful/goal-oriented to meet the normal definition, which was “impel random attacks on friend or foe alike w/o regard to consequences”  Choice of insanity defense over self-defense (former doesn’t require cognizance, latter does to some degree)

State v. Guido (NJ 1963): D killed her sleeping husband, dr experts conferred with defense atty and changed their rpt (not in terms of actual medical findings but to reflect changed understanding of what constituted legal sanity). Ct said too much of a big deal was made of this at trial b/c can’t look to experts to provide definition of what is “disease” relieving blame (here under M’Naghten), that’s an ethical question beyond scientific truth (jury Q). EXTRA STUFF

Why Punish?

A. Optimal Deterrence (“utilitarian”) Punishment can benefit society as a whole.

 Jeremy Bentham, Principles of Penal Law Humans’ passion for calculation allows society to set up disincentives to crime, though effect of punishment is limited by uncertainty and distance. Punishments may be too small or great. Greater danger lies in error on minimum side (inefficacious), but greatest disposition to err is on side of excess due to natural antipathies of humans (lawmakers).

 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation Laws’ purpose is to maximize happiness, but “all punishment is in itself evil.” Utility dictates that the increased happiness resulting from a punishment must outweigh that evil. In all cases, punishment should be avoided if groundless, inefficacious, unprofitable, or needless.

 Consider hubcap problem: 1/5000 caught, $50 each, deterrent fine would be $250,000. Imprison?  Concern with substitution effect: why steal hubcap when penalty same as robbing bank. Deterrence can be used to justify v. strict or no penalties.

B. Individual Desert (“fairness”) Offender should be punished because they deserve it, not for greater social end.

 Immanuel Kant, The Philosophy of Law Individuals should not be treated in terms of their purpose to another (as in optimal deterrence). If guilty, punishment is a categorical imperative.

 Robinson: If you treat people fairly, they’re more willing to respect law/obey it. So if your interest is utility, it can still make sense to punish deserts (Kant and Bentham not incompatible).

C. Expressive Condemnation (“social meaning”) More descriptive than normative; asserts that punishment makes value statement for society

 Jean Hampton, An Expressive Theory of Retribution Action is wrong only if it expresses something about the person being harmed. Crime demonstrates that offender believes worth of victim low so as to make such treatment permissible.

 Jean Hampton, The Retributive Idea “If punishment is a protection of one’s value, then its infliction on a wrongdoer is a reflection of that value.” Insufficient punishment may be interpreted as placing lower value on victim (or opposite).

**Deterrence/individual desert/expression often argued together, not against each other (e.g. justify capital punishment position each way)

State v. Chaney (Alaska 1970): woman robbed and repeatedly raped, Chaney sentenced to 1 year w/ early parole possibility. Light sentence appealed as it would not reform or express community condemnation.

People v. Du (CA Ct. of Appeal 1992): D Soon Ja Du shot and killed Latasha Harlins during scuffle at her liquor store over juice she thought Harlins was stealing. Claimed she did not know how gun worked and was in fear of gang violence in area. Gun was faulty. “Voluntary manslaughter” but 10-yr prison sentence suspended/given probation due to lawful/defensive gun ownership, no record, provocation. Raises race questions.

How Do We Punish?

United States v. Bergman, S.D.N.Y. 1976: D Bergman, elderly man of widespread popularity, owned nursing homes and defrauded Medicaid/submitted false partnership returns. No need for rehabilitation (unlikely to re-commit). Court can take age and reputation into account in sentencing, but will still punish for general/indiv. deterrence and to avoid depreciating seriousness of crime.  Restorative Justice: Dan M. Kahan, “What’s Really Wrong With Shaming Sanctions.” In searching for an alternative to the U.S.’s dependence on short-term incarcerations for first-time offenders, restorative justice may be better than shaming sanctions. Avoids “zero-sum game” of “symbolic politics. “ “Combines degradation and rehabilitation, communal responsibility for ameliorating crime with individual accountability.”

 Accountability-Enhancing Sanctions: Donald Braman, “Punishment and Accountability.” Across many social groups, significant populations desire accountability-based sanctions (work, drug treatment, etc) instead of merely mass incarceration. Seen as providing greater return to society and offender’s families/communities.

What to Punish?

 Joseph R. Gusfield: “On Legislating Morals: The Symbolic Process of Designating Deviance.” Government’s act may have symbolic importance because it affects designation of public norms. “The courtroom decision or the legislative act often glorifies the values of one group and demeans those of another.”

Wisconsin v. Mitchell (U.S. 1993): D Mitchell convicted of aggravated battery of white boy attacked out of racial prejudice. Because of intention, Court sentenced Mitchell to higher than usual prison term (within WI statutory provision). Mitchell challenged under 1st Amendment right to free speech. SCt. Says: (a) Physical assault not “expressive conduct” protected by 1 st Amendment (b) Penalty-enhancement provisions acceptable because of state interest in “bias-inspired conduct” that is “thought to inflict greater individual and societal harm; interest is “over and above mere disagreement with offenders’ beliefs and biases.”

Bowers v. Hardwick (U.S. 1986—overruled, Lawrence v. Texas, 2003): D Hardwick convicted of sodomy in Georgia, argued statute violated constitution based on 9th Amend./Due Process of 14th Amend. S.Ct. says precedent protects marriage/family/procreation, so protection doesn’t extend to homosexuals, plus Court should be wary of expanding Amend. rights.

Lawrence v. Texas (U.S. 2003): Refers to Stevens’ dissent from Bowers and states that fact of historical moral condemnation is not sufficient to continue illegalizing and intimate decisions are “a form of ‘liberty’ protected by the Due Process clause.”

 Patrick Devlin, The Enforcement of Morals Society held together by common morality, so society is justified in taking steps to protect deeply-held beliefs (e.g. condemnation of homosexuality).

 Dan M. Kahan, “The Secret Ambition of Deterrence” Expressive condemnation view—Hate crime sentences send more powerful message to hate criminals whose acts connote more profound denial of worth of victim than regular crimes. Also affirm community value of equality.

 Richard A. Posner We shouldn’t have greater punishment for motivations we find repugnant, but there can be merit to hate crime sentencing based solely on dangerousness (less protection for vulnerable groups, greater psych damage to victim). Person seeking to harm group more dangerous than one seeking to harm individuals.

THE INSTITUTIONAL DIMENSION: Who Should Say What the Law Means?

1. Courts vs. Legislatures

 Desuetude: failure to enforce law in face of widespread violation invalidates law. U.S. generally averse to desuetude (sep-of-powers concern, e.g. Stowell). But some criminal jurisprudence supports (e.g. Poe v. Ullman, S.Ct. 1961, said S.Ct. doesn’t need to address constitutionality of CT anti-contraception statute b/c of virtual nonenforcement).

Commonwealth v. Stowell (Mass. 1983): MA adultery statute argued to be unconstitutional b/c of invasion of right to privacy (14th Amend.) as set forth in Roe v. Wade. Ct. says right to privacy does not extend to private, consensual acts that state retains power to police; absent unconstitutionality, must address to legislature.

 Richard Posner, Sex and Reason: CT/MA anti-contraception statutes could not be maintained for plausibly secular goal, must be relig. Motivation->not ok.

 Concept of Legality : Focused on notice. (1) Bar on retroactivity, (2) strict statutory construction, (3) bar against vague statutes.

Legality: conduct must be specifically prohibited by law before it can be punished, and laws cannot be so vague that a person does not have fair notice to whether his conduct constitutes a crime. Purposes: (1) provides notice as to what is lawful, (2) confines discretion of police in enforcement, (3) prevents judges/juries from arbitrarily creating new crimes, (4) ensures that criminal law only operates retrospectively. Keeler v. Superior Court (Cal. 1970): P Keeler wanted writ of prohibition against holding him guilty of murder (kicked cheating pregnant ex-wife, caused death of her fetus) b/c law didn’t specify that killing viable fetus = killing person. Court cannot construe statute in non-evident way (exceeds sep of powers), benefit of construction must go to defendant; doing otherwise violates due process (defendant does not have notice of what law expects). Note: other states handle diff (e.g. Hughes in OK, ct. said would not prosecute in instant case before them, but in future statute interpreted to include killing of fetus).

 Issues of expressive condemnation in Keeler affected by debate about abortion at the time (what would it say to make fetus a separate crime?). Also, issue of lenity affects (idea to construe criminal statutes narrowly to be fair to defendant when ambiguity exists—lots of exceptions though e.g. RICO)

United States v. Zavrel (3rd Cir. 2004): D Rosemary Zavrel mailed 17 envelopes of cornstarch during anthrax scare to various officials/locals/president. Violation of 18 USC §876 because it constituted a “communication” which a reasonable person would perceive as a “threat of harm” under the circumstances. DISSENT: Zavrel’s act communicated “I just poisoned you,” not future “threat to injure,” interpreted too broadly (wants lenity).

2. Courts vs. Community

City of Chicago v. Morales (US 1999): Chicago City Council’s Gang Congregation Ordinance, prohibiting “criminal street gang members” from “loitering…in any public place” deemed too vague, violating due process. Vagueness can invalidate crim law for (1) failing to provide notice of prohibited conduct and (2) authorizes or encourages arbitrary/discriminatory conduct. Concurring: too vague as it was but suggests it could be re-worded to be ok. Dissent: Not too vague, relies on appropriate enforcement which shouldn’t be addressed unless shown to be inappropriate. Also prioritizes gang members’ rights over regular citizens’.  Amicus brief from Chicago Neighborhood Organizations: Ordinance was a “permissible balance between liberty and order,” striking down does disservice to community, minority communities now represented in law enforcement and want to use it to create greater safety in their communities, ordinance = more effective “social norm”-changing strategy than crackdowns.

 David Cole p. 87: Idea that police discretion and discrimination are no longer of concern ignores persistent discrimination (e.g. bus sweeps, traffic stops), plus minorities disproportionately represented in law-making to begin with and also able to discriminate against own groups in enforcement positions.

3. The Jury Duncan v. Louisiana (US 1968): Racially-charged scuffle, charged with battery, not given jury trial. In crime determined to be serious and not a petty offense, accused guaranteed a jury trial regardless of state rules thanks to 14th and 6th Amendments (does not want to draw serious/petty line in opinion). DISSENT: States have right to make own rules re: jury trials by crime, political process/courts available to correct “experiments” that prove unfair.

 F.R.Crim.P. 23(a): (p. 96) cases req’d to be tried by jury shall be so tried unless waived by Defendant w/ Court approval.

 Kalven and Zeisel, The American Jury: advantages/disadvantages to juries: competence? Will they follow law? Uneven administration of justice?

United States v. Moon (2nd Cir. 1983): Moon charged with false income tax returns, got massive negative press so wanted bench trial (not jury trial). Insistence on jury trial does not violate due process/fair trial if jury chosen carefully (as here). Decision based on Singer v. U.S., which left open possibility that in a special case a Def. might require bench trial over pros. Objection (but Courts almost never find this situation to be satisfied).

--Nullification—

United States v. Dougherty: “DC Nine” case, judge refused to instruct jury as to their right to acquit w/o regard to law or evidence. Court does not need to instruct jury as to nullification prerogative; too dangerous to expand “self-initiated exception.” (Similar to judge’s reasoning in movie!) DISSENT: Lack of nullification instruction = “deliberate lack of candor,” power to nullify should be explicitly stated.

 Irwin A. Horowitz’ studies on effects of jury instructions  (1) instructions do make a diff in how juries perform (esp. “radical nullification” instructions, (2) effect of nullification depended on nature of case, (3) lawyers’ arguments mattered more than judge instructions.

 Racially-motivated Verdicts: (a) p. 103 “Color-Blinded” article: 66% of blacks believe criminal justice system is racist compared to 37% of whites; some choose to protest injustice by verdict and refuse to put more blacks behind bars (b) Paul Butler, “Racially Based Jury Nullification: Black Power in the Criminal Justice System”: moral responsibility of black jurors to emancipate some guilty offenders, esp. in “victimless” malum prohibitum cases. (c) Randall Kennedy, Race, Crime, and the Law: Butler’s call for nullification may call into question rights of blacks to be selected for jury service and based on destructive desire to care about one’s “own” race. (d) P. 107 Fully Informed Jury Association (FIJA) distribute info, want jurors to be informed of nullification power

 Braman, “Criminal Law and the Pursuit of Equality” p. 109: Improving juries and results: (1) Jury polling, egalitarians should harness good sense of public by forcing judges/legs to pay attn to concerns of people at sentencing; (2) universalizing jury service, mandated/paid one week a year, would better protect minority defendants and right to access of the jury by minorities.

 Judge James Gwin: study on jury polling showed median juror recommended sentences generally lower than Guidelines.

Paul Butler Reading: Nullification: advocates use in drug cases (possession/dealing), 2 purposes: self help (benefits community) and expressive Problems with current incarceration rate: --“Tipping point” problem: can’t lock up all the criminals (plus replacement effect), and when too many are locked up communities become MORE unstable (destabilizing families on the outside, unemployed males post-release, mass incarceration makes crime normal/less respect for law) --$60 billion a yr (not incl courts) --Racial disparity (e.g. black/white, 8/1) --Good government (e.g. crack cocaine penalties, need to balance democracy and expertise) --War on Drugs: has become focused on punishment not treatment, dramatic increase in prison population attributable to this, 1/5 fed prisoners are low-level drug violators (take nonviolent offenders, expose them to worse ones, return to community where they’re now more likely to commit crimes) --Compare to Prohibition: doesn’t get rid of product but creates illegal market that better-compensates suppliers; increase in users, vast army of lawbreakers, open dismissal of law, rise in crime --Alternatives: every $1 invested in treatment saves $7.46 in other costs, 96% fewer crimes w/lower cost drug supply, ½ of property crimes/robbery/burglaries result of high drug costs. Harm reduction programs: (1) decriminalize small possession, (2) treatment programs available for all addicts, (3) needle-exchange and drug testing servs should be available to reduce risks of disease/overdose

Broken Windows Policing Seeing someone doing something = you’re more likely to do it, broken window indicates lack of monitoring (1 week vs 1 day), policing designed to be a less intrusive form of crime control: manage highly visible minor crimes, clean up streets, reduce other forms of crime Compstat: intense pressure to reduce crime statistics every week/year, incongruous w/hospitalization rates for assaults, Schoolcraft: issue is statistics fudging Revealing drugs etc: defenses—duress? Mistake of law, relying on official to interpret? Problem: need someone high enough up to be authorized to interpret (when needed in the time/place), police officer not sufficient, also would be problematic to require police to tell truth at all times. Entrapment? Problem: objective (behavior of govt official is suff to cause reasonable person to engage in the illegal behavior) vs subjective (whether person would’ve committed crime but for actions of the state), NY stat uses objective (tougher) standard

Federal Entrapment Doctrine 1. Govt inducement (persuasion/coercion) of the crime—shown if govt created a substantial risk that an offense would be committed by a person other than one ready to commit it, AND 2. D’s lack of predisposition to engage in the criminal conduct—focuses on D was an unwary innocent vs. unwary criminal who readily availed himself of the opp to commit the crime, est. by “ready commission” of the act

Hossain: wanted a loan to keep his pizzeria afloat, offered a $50k loan all of which he would pay back except $5k, told money came from sale of terrorist missile launcher by govt agent (underlying crime was laundering money). Wanted to pursue D Aref but approached through Hossain b/c he needed money. Predisposed? No Induced? Yes, but slightly harder

Fort Dix Conspiracy: Criminal informant (who would otherwise be deported) befriended (at FBI direction) group of 5 men who wanted a questionable video copied at Circuit City; bought rifles supplied by FBI and found guilty of conspiring to kill American soldiers, at informant encouragement, even though there were no specific targets and they were months away from any concrete plan. Rationale: safety > privacy, can’t afford to be wrong.

Detroit Sleeper Cell: Prosecution fell apart after evidence of extensive evidence tampering arose Adnan Mirza—conspiracy or entrapment? FBI agents posed as friends, recorded conversations and took pictures w/guns, reported to be “training”/sending money to Taliban (was $900 he raised for questionable or righteous purpose?), refused plea bargain, 15-yr sentence

“Legitimacy/Deterrence Effects in Counter-Terrorism Policing” Among Muslim Americans in New York: 1. Central role of procedural justice in policy formation/implementation in shaping cooperation w/anti-terror policing efforts. 2. Instrumental explanations of cooperation receive only weak support (cooperation not generally linked to views of whether terror is a serious problem, view on police presence, etc) 3. Religious/political factors not central to shaping cooperation, although perceptions of discrimination were

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