DOCSLIB.ORG

The Lesser Included Offense Doctrine and the Constitution: the Development of Due Process and Double Jeopardy Remedies

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Lesser Included Offense Doctrine and the Constitution: the Development of Due Process and Double Jeopardy Remedies MARQUETTE LAW REVIEW Volume 79 Fall 1995 Number 1 THE LESSER INCLUDED OFFENSE DOCTRINE AND THE CONSTITUTION: THE DEVELOPMENT OF DUE PROCESS AND DOUBLE JEOPARDY REMEDIES JAMES A. SHELLENBERGER JAMES A. STRAZZELLA* I. Introduction ................................... 3 II. Background of the Lesser Included Offense Doctrine: Definitions, Tests, and Approaches .................. 6 III. Due Process and the LIO Doctrine ................. 14 A. The Supreme Court's LIO Due Process Decisions ... 15 B. The Reach of the Beck Cases as Suggested by Other Supreme Court Opinions ................. 30 C. The LIO Due Process Question in the State and Federal Courts ........................... 39 1. State Court Cases ......................... 39 2. Federal Circuit Court View of the Reach of Beck's Rationale ........................ 42 a. Federal Circuit Court Cases Summarized ..... 43 b. Circuit Court Decisions Refusing to Extend Beck ........................ 46 c. Circuit Courts' Further Limitation of Beck by Limiting the Definition of "Capital" Case . 56 * Associate Professor of Law, Temple University School of Law. A.B. 1969, Lafayette College; J.D. 1972, Villanova University. James G. Schmidt Chair in Law, Temple University School of Law. A.B. 1961, Villanova University; J.D. 1964, University of Pennsylvania. The authors appreciate the research support made possible by Temple University School of Law. MARQUETTE LAW REVIEW [Vol. 79:1 d. The View that Beck Extends to Noncapital Cases ....................... 63 3. The Impact of Federal Habeas Corpus on the LIO Question ....................... 69 a. Hill v. United States . ..................... 73 b. "Hill Analysis" to Determine Availability of LIO on Federal Habeas under § 2254 ..... 76 c. Further Reflections on the "Hill Analysis"; Reed v. Farley .......................... 85 D. Due Process Analysis Generally ................. 89 1. The Current Due Process Approach; Medina and Patterson ....................... 89 2. Supreme Court Decisions on State Court Jury Instructions and Due Process ............. 92 3. Beck v. Alabama and Noncapital Cases Under the Medina-PattersonAnalysis ................ 96 a. Historical Pedigree of the LIO Doctrine ...... 97 b. Contemporary State and Federal LIO Practice . 108 c. Summary of Due Process LIO Doctrine under Medina-PattersonAnalysis ................ 111 E. Due Process Summary ........................ 112 IV. Double Jeopardy and the LIO Doctrine .............. 114 A. Procedural Variations on LIO Problems ........... 115 B. Background of Double Jeopardy as it Relates to LIO s ................................... 117 1. Original Meaning and the Increasing Complexity of Double Jeopardy Law ...................... 117 2. Purposes of the Double Jeopardy Protection ..... 120 3. The "Same Offense" Limitation .............. 121 C. Convictions Followed by Successive Prosecutions .... 126 1. The Greater Offense-LIO Sequence ........... 126 a. Conviction of the Greater Offense Charged and Its Implications for Subsequent LIOs Prosecutions ...................... 126 b. Conviction of the Greater Offense Charged, Reversal on Appeal, and Attempted Retrial for LIO .............................. 137 2. The LIO-Greater Offense Sequence: Conviction of the LIO Followed by Prosecution , for the Greater Offense ..................... 140 D. Acquittals Followed by Successive Prosecutions ..... 152 1995] LESSER INCLUDED OFFENSE DOCTRINE 1. The Greater Offense-LIO Sequence: Acquittal of the Greater Offense Followed by Prosecution for the LIO .............................. 152 a. Acquittals and "Finality" in General ........ 152 b. Express Acquittals in LIOs Submissions ...... 164 c. Implied Acquittals and the Opportunity to Convict ............................ 166 2. The LIO-Greater Offense Sequence: Acquittal of the LIO Followed by Prosecution for the Greater Offense ....................... 171 E. The Interaction Between Double Jeopardy and State Law LIO Approaches ........................ 171 F. The Double Jeopardy Impact on LIO Procedural Choices and Remedies ........................ 177 1. Charging and Severance .................... 179 2. Submitting and Receiving Verdicts ............ 180 3. Appellate Choices and Modification of Verdicts .. 183 V. Conclusion .................................... 189 I. INTRODUCTION The lesser included offense doctrine is important and pervasive. Its involvement in criminal cases is incalculable because of its potential to play some role in the vast majority of both state and federal prosecutions. Constitutional developments of uncertain reach have accentuated the doctrine's importance. From its emergence at common law, the lesser included offense (LIO) principle developed as a doctrine codified by statutes and rules for the benefit of both prosecution and defense. Increasingly, the doctrine has raised federal constitutional questions under the Due Process and Double Jeopardy Clauses, as well as under the Cruel and Unusual Punishment Clause. These constitutionai developments have important procedural ramifications, and remedies constructed to effectuate the constitutional provisions have important pragmatic consequences. In turn, these pragmatic consequences may play a large part in inhibiting how far the courts will go in constitutionalizing aspects of the'LIO doctrine. The general notion that the LIO concept can breed double jeopardy implications is a longstanding one. The double jeopardy proscription traces back to common law and was broadly asserted in early constitutional cases as a given principle. What followed was the tortuous development of the concept's application, in particular, the development of exceptions to the broadly stated double jeopardy principles. By contrast, case law suggesting MARQUETTE LAW REVIEW [Vol. 79:1 that the LIO doctrine may also raise general due process issues is a relatively current development. Recent holdings that the failure to give an LIO instruction was constitutional error were delivered explicitly in the narrow context of capital cases, but the rationale underlying these holdings conceivably has a much wider application. As a result, the courts are struggling to discern how far to extend the Supreme Court's constitutional LIO holdings. The ubiquitous nature and importance of the LIO doctrine calls for an exploration of its increasing federal constitutional overtones. The development of these overtones is the subject of this Article.' It also discusses the evolving remedies used to effectuate these rights, the implications of those remedies, and ways in which underlying problems can be avoided. Overall, this Article examines a number of related constitu- tional issues through the unique prism of the LIO doctrine. In doing so, the authors have attempted to explore the juxtaposition of related issues not extensively dealt with elsewhere in the literature. 1. Analysis of a particular state's law may yield a different result compared with the federal clauses. The state provision may be deemed to afford the same, greater, or lesser protection than does the Federal Constitution. Ultimately, of course, the defendant must be accorded at least the minimum protection given by the federal clause, but a state provision may extend more protection as a matter of state law. See, e.g., California v. Ramos, 463 U.S. 992, 1013-14 (1983) (recognizing that states are free to provide greater protections to defendants than U.S. Constitution). See generally Robert F. Williams, In the Supreme Court's Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result, 35 S.C. L. REV. 353, 354 n.2 (1984) (collecting authorities). Regarding state law and due process LIO issues, see, e.g., People v. Geiger, 674 P.2d 1303, 1307 (Cal. 1984) (en banc) (collecting cases for proposition that California due process provision requires appropriately requested lesser included offense instructions whether or not required by federal due process, and extending principle to cover "related" lesser offenses, even if not necessarily included offenses); cases cited infra notes 125-31 (affording defendants greater protection under state law than required by federal due process). Regarding state law and double jeopardy protection, see, e.g., State v. Lessary, 865 P.2d 150, 157 (Haw. 1994) (finding double jeopardy violation under state, but not federal, constitution); Stephens v. State, 806 S.W.2d 812, 815 (Tex. Crim. App. 1990) (en banc), cert. denied, 502 U.S. 929 (1991) (noting that federal and Texas double jeopardy provisions are conceptually identical); Bennett v. State, 182 A.2d 815, 817 (Md. 1962) (noting that former jeopardy defense, although not provided for in state constitution, is firmly established as part of state common law except as altered by statute); cases cited infra note 555 (affording defendant greater protection than required by federal Double Jeopardy Clause). For various purposes, references to state law appear throughout the Article, but it does not deal directly with state constitutional provisions or state statutes, rules, or case law. See, e.g., MODEL PENAL CODE § 1.08 (Official Draft 1985)(when prosecution barred by former prosecution for the same offense); 18 PA. CONS. STAT. § 109(1) (1983 & 1994 Supp.) (when prosecution statutorily barred by former prosecution for same offense). See also MODEL PENAL CODE § 1.09 (Official Draft 1985) (when prosecution barred by former prosecution for different offense). 1995] LESSER INCLUDED OFFENSE DOCTRINE Section II of this Article briefly discusses the background of the
Load more

Recommended publications
  • Charging Language
    1. TABLE OF CONTENTS Abduction ................................................................................................73 By Relative.........................................................................................415-420 See Kidnapping Abuse, Animal ...............................................................................................358-362,365-368 Abuse, Child ................................................................................................74-77 Abuse, Vulnerable Adult ...............................................................................78,79 Accessory After The Fact ..............................................................................38 Adultery ................................................................................................357 Aircraft Explosive............................................................................................455 Alcohol AWOL Machine.................................................................................19,20 Retail/Retail Dealer ............................................................................14-18 Tax ................................................................................................20-21 Intoxicated – Endanger ......................................................................19 Disturbance .......................................................................................19 Drinking – Prohibited Places .............................................................17-20 Minors – Citation Only
    [Show full text]
  • Reckless Driving; Vehicular Manslaughter; Death of Two Or More) Penal Law § 125.14 (4) (Committed on Or After Nov
    AGGRAVATED VEHICULAR HOMICIDE (Reckless Driving; Vehicular Manslaughter; Death of Two or More) Penal Law § 125.14 (4) (Committed on or after Nov. 1, 2007) The (specify) count is Aggravated Vehicular Homicide. Under our law, a person is guilty of Aggravated Vehicular Homicide when he or she engages in Reckless Driving1 and commits the crime of Vehicular Manslaughter in the Second Degree2 and causes the death of more than one 3 person. The following terms used in that definition have a special meaning: A person ENGAGES IN RECKLESS DRIVING when that person drives or uses any motor vehicle,4 in a manner which unreasonably interferes with the free and proper use of a public highway, road, street, or avenue, or unreasonably endangers users of a public highway, road, street, or avenue.5 1 At this point, the statute continues: “as defined by section twelve hundred twelve of the vehicle and traffic law.” That definition is utilized in this charge in the definition of “reckless driving.” 2 At this point, the statute continues: “as defined in section 125.12 of this article.” 3 At this point, the statute states “other person.” For purposes of clarity, the word “other” modifying “person” has been omitted. 4 At this point, the statute continues: “motorcycle or any other vehicle propelled by any power other than a muscular power or any appliance or accessory thereof.” (Vehicle & Traffic Law § 1212). Such language has been omitted here due to the all encompassing term “motor vehicle.” The additional statutory language should, however, be inserted if that type of vehicle is at issue.
    [Show full text]
  • What's Reasonable?: Self-Defense and Mistake in Criminal and Tort
    Do Not Delete 12/15/2010 10:20 PM WHAT’S REASONABLE?: SELF-DEFENSE AND MISTAKE IN CRIMINAL AND TORT LAW by Caroline Forell∗ In this Article, Professor Forell examines the criminal and tort mistake- as-to-self-defense doctrines. She uses the State v. Peairs criminal and Hattori v. Peairs tort mistaken self-defense cases to illustrate why application of the reasonable person standard to the same set of facts in two areas of law can lead to different outcomes. She also uses these cases to highlight how fundamentally different the perception of what is reasonable can be in different cultures. She then questions whether both criminal and tort law should continue to treat a reasonably mistaken belief that deadly force is necessary as justifiable self-defense. Based on the different purposes that tort and criminal law serve, Professor Forell explains why in self-defense cases criminal law should retain the reasonable mistake standard while tort law should move to a strict liability with comparative fault standard. I. INTRODUCTION ....................................................................... 1402 II. THE LAW OF SELF-DEFENSE ................................................... 1403 III. THE PEAIRS MISTAKE CASES .................................................. 1406 A. The Peairs Facts ..................................................................... 1408 B. The Criminal Case .................................................................. 1409 1. The Applicable Law ........................................................... 1409
    [Show full text]
  • Lifetime Likelihood of Victimization
    U. S. Department of Justice I Bureau of Justice Statistics I Lifetime Likelihood of Victimization by Herbert Koppel people's perception of the meaning of BJS Analyst March 1987 annual rates with respect to their own The Bureau of Justice Statistics lives. If the Earth revolved around the This report provides estimates of the National Crime Survey provides sun in 180 days, all of our annual crime likelihood that a person will become a annual victimization rates based rates would be halved, but we would not victim of crime during his or her life- on counts of the number of crimes be safer. time, or that a household will be vic- reported and not reported to timized during a 20-year period. This police in the United States. These Calculating lifetime victimization rates contrasts with the conventional use of a rates are based on interviews 1-year period in measuring crime and twice a year with about 101,000 For this report, lifetime likelihoods criminal victimization. Most promi- persons in approximately 49,000 of victimization were calculated from nently, the National Crime Survey nationally representative NCS annual victimization rates and life (NCS) surveys a sample of U.S. house- households. Those annual rates, tables published by the National Center holds and publishes annual victimization while of obvious utility to for Health statistics.% The probability rates, and the FBI's Uniform Crime policymakers, researchers, and that a person will be victimized at a Reports (UCR) provide annual rates of statisticians, do not convey to particular age basically depends upon crimes reported to the police.
    [Show full text]
  • Chapter 3-1 Homicide and Related Offenses
    CHAPTER 3-1 HOMICIDE AND RELATED OFFENSES 3-1:01 MURDER IN THE FIRST DEGREE (AFTER DELIBERATION) 3-1:02 MURDER IN THE FIRST DEGREE (FELONY MURDER) 3-1:03 AFFIRMATIVE DEFENSE FELONY MURDER 3-1:04 MURDER IN THE FIRST DEGREE (EXECUTION BASED UPON PERJURY) 3-1:05 MURDER IN THE FIRST DEGREE (EXTREME INDIFFERENCE) 3-1:06 MURDER IN THE FIRST DEGREE (DISTRIBUTION OF CONTROLLED SUBSTANCE ON SCHOOL GROUNDS) 3-1:07 MURDER IN THE FIRST DEGREE (CHILD UNDER TWELVE) 3-1:08 MURDER IN THE SECOND DEGREE 3-1:09 INTERROGATORY (PROVOKED PASSION) 3-1:10 MANSLAUGHTER (RECKLESS) 3-1:11 MANSLAUGHTER (CAUSED OR AIDED SUICIDE) 3-1:12 CRIMINALLY NEGLIGENT HOMICIDE 3-1:13 VEHICULAR HOMICIDE 3-1:14 SPECIAL INSTRUCTION INFERENCES TO BE DRAWN FROM EVIDENCE OF BLOOD ALCOHOL LEVEL 3-1(15) DEFINITION The instructions in this chapter are designed to cover the offenses in §§ 18-3-101 to 107, C.R.S. 3-1:01 MURDER IN THE FIRST DEGREE (AFTER DELIBERATION) The elements of the crime of murder in the first degree are: 1. That the defendant, 2. in the State of Colorado, at or about the date and place charged, 3. after deliberation, and with intent a. to cause the death of a person other than himself, b. caused the death of __________________. 4. [without the affirmative defense in instruction number _____ .] After considering all the evidence, if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the defendant guilty of murder in the first degree.
    [Show full text]
  • A Clarification of the Law of Attempted Murder in Illinois - People V
    DePaul Law Review Volume 28 Issue 1 Fall 1978 Article 9 Specific Intent Made More Specific: A Clarification of the Law of Attempted Murder in Illinois - People v. Harris Nancy Lea Barrett Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Nancy L. Barrett, Specific Intent Made More Specific: A Clarification of the Law ofttempted A Murder in Illinois - People v. Harris , 28 DePaul L. Rev. 157 (1978) Available at: https://via.library.depaul.edu/law-review/vol28/iss1/9 This Notes is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. SPECIFIC INTENT MADE MORE SPECIFIC: A CLARIFICATION OF THE LAW OF ATTEMPTED MURDER IN ILLINOIS -PEOPLE V. HARRIS The essence of the crime of attempted murder is a specific intent to take life. 1 This concept has undergone a subtle but significant change in Illinois law. In a recent decision, the Illinois Supreme Court has sought to define the precise mental element necessary to sustain a conviction of attempted murder. In People v. Harris,2 the court held that "to convict for attempted murder nothing less than a criminal intent to kill must be shown. "3 The significance of this seemingly straightforward holding can be better ap- preciated in light of prior Illinois decisions, many of which have sanctioned attempted murder charges based on something less than intent to cause 4 death.
    [Show full text]
  • Have You Been the Victim of Assault, Robbery, Harassment Or Some Other School-Related Crime?
    Have you been the victim of assault, robbery, harassment or some other school-related crime? If you have, are you: Housed at the UFT and staffed by your colleagues who ➤ Feeling vulnerable, anxious, fearful, angry or understand your school environment and both the pressures depressed? and satisfactions of your job, the Victim Support Program is the only one of its kind in the country. Services include: ➤Confused about procedures and forms? ✓ Individual and group counseling conducted by Frustrated by the paperwork involved in securing your ➤ licensed psychologists, specially trained and medical benefits, claiming line-of-duty injury, or dealing with law enforcement or other agencies? experienced in working with people who are suffering trauma. ➤ Apprehensive about returning to work? ✓ Help with forms and procedures. Call the Victim Support Program. Assistance in dealing with the police department and The Victim Support Program was established in 1989 by ✓ the United Federation of Teachers and the New York City other criminal justice agencies. Board of Education to provide comprehensive, practical ✓ Support as we accompany you to court or the Board’s assistance and psychological support to teachers and other Medical Bureau. school personnel following crimes and violent incidents in Visits to schools following violent incidents to deal school. ✓ with “ripple effect” trauma. Our goal is to help you cope with the aftermath of a criminal incident. We will support you as you strive for recovery after what we know is often a professionally and personally traumatic event. Call us. We can help! (212) 598-6853 Monday-Friday, 10 a.m.- 6 p.m.
    [Show full text]
  • The Larceny Act
    LARCENY THE LARCENY ACT ARRANGEMENT OF SECTIONS 1. Short title. PART I. Inferprefafion 2. Interpretation. 3. Definitions. 4. Offensive weapons. PART 11. Indictable Ofences 5. Simple larceny. 6. Larceny of cattle. 7. Killing animals with intent to steal. S. Larceny, etc., of dogs. 9. Larceny of wills. 10. Larceny of documents of title to land, etc. 11. Taking, destroying, etc., documents for a fraudulent purpose. 12. Damaging fixtures with intent to steal. 13. Praedial larceny. 14. Larceny of goods in process of manufxture. 15. Abstracting electricity. 16. Larceny, etc., of ore from mines, etc. 17. Larceny of postal articles. 18. Larceny in dwelling-houses. 19. Larceny from the person. 20. Larceny from ships, docks, etc. 2 1. Larceny by tenants or lodgers. 22. Larceny and embezzlement by clerks or servants. 23. Stealing or embezzlement by officer of Post Office. 24. Conversion. 25. Conversion by trustee. [The inclusion of this page Is authorized by L.N. 180At20061 LARCENY Factors obtaining advances on the property of their principals. Frauds by director. etc. Fraudulently inducing persons to invest money. Falsification of accounts. Falsification of account books of a bank. etc. Clerks. etc.. making out false dividend warrants. Personating the owner of stock. Personation with intent to obtain land. etc. Falsely acknowledging bail. etc. False pretences. Obtaining credit by fraud. Robbery. Sacrilege. Burglary. House-breaking and committing felony. House-breaking with intent to commit felony. Being found by night armed or in possession of house-breaking implements. Extortion. [Repealed by Act 29 of 200.5.] [Repealed by Act 29 of 2005.1 [Repealed byAct 29 of 2OO5.] Receiving.
    [Show full text]
  • Individual Incident Entry (IIE)
    Individual Incident Entry (IIE) To begin entering a Group A or Group B incident into the state repository, click the “Incident / Arrest” button. Choose Incident or Arrest Click the “Incident Report” button to begin entering Group A incidents or click “Arrest Report” to begin enter Group B incidents into the repository. If you choose Group A, Incident …. Start with selecting either New Case or Get Previous Case Group A, New Case …. 1 2 After clicking on “New Case”: 1) enter the incident number in the box and 2) click “OK” – these steps are mandatory. Group A, Previous Case …. 1 2 After clicking “Get Previous Case”: 1) enter the incident number or partial number in the box and 2) click “Search”. Either one incident or a list of incidents with the partial number will display. Click the “Select” button to choose the appropriate case. Incident data elements …. Optional: Use only if incident date is Mandatory (if known): unknown Date incident occurred (MM/DD/YYYY) (MM/DD/YYYY) Mandatory: Use military 24-hour time; if incident occurs exactly at If an incident needs to be midnight, consider it to have removed from the repository, occurred at the beginning of the “delete” it here. following day. Optional: Physical address or Mandatory: Answer “no” or “yes” only for the latitude/longitude contribute to the offenses of: repository crime mapping feature. All Other Larceny Bribery Burglary/Breaking & Entering Credit Card/ATM Fraud Embezzlement Extortion/Blackmail False Pretenses/Swindle/Confidence Game (Fraud) Impersonation (Fraud) Motor Vehicle Theft Theft From A Building Theft from a Motor Vehicle Robbery Wire Fraud Victim data elements ….
    [Show full text]
  • Legal Term for Cheating on Wife
    Legal Term For Cheating On Wife Is Vassili regular or crackpot after concupiscent Noe generate so awhile? Affordable Gordie untidies very round while Spike remains unbreeched and inspired. How peristomatic is Preston when hard-fisted and prepubescent Wit cackle some underbridge? The unsatisfied spouse cheated on discrimination is attorney for worry, wife on incurable insanity of up until they help When your spouse must be responsible for me at times, the terms favorable settlement. Cultural factors are legal questions are legal term. The intensity that in the outcome of the obligation. You from your letter, on legal term for cheating wife was the dependent spouse wins! We are legal action for legal cheating on wife. Child custody of legal term adultery is something to have terms you ask for you from voluntarily engages in this url into account. Focusing on your spouse cheats does not carry out. This is for spousal support. Imagine your reality, but a number of a petition seeking a person other. To legal term for my wife must show his. If you cheated with someone cheating wife cheats his legal term for adultery, is natural to you and think about outside in terms of. He finishes the similarities between a divorce case law may change their own home to a cheating on wife for legal term relationship to one of trust and pay in the original concept. If one does adultery laws that, it makes people cheat on your marital property. This cheating wife cheats his affection is termed in terms have. That one of. Our sleeves and harmony with your wife cheated with a relationship, emotional infidelity is.
    [Show full text]
  • Competing Theories of Blackmail: an Empirical Research Critique of Criminal Law Theory
    Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory Paul H. Robinson,* Michael T. Cahill** & Daniel M. Bartels*** The crime of blackmail has risen to national media attention because of the David Letterman case, but this wonderfully curious offense has long been the favorite of clever criminal law theorists. It criminalizes the threat to do something that would not be criminal if one did it. There exists a rich liter- ature on the issue, with many prominent legal scholars offering their accounts. Each theorist has his own explanation as to why the blackmail offense exists. Most theories seek to justify the position that blackmail is a moral wrong and claim to offer an account that reflects widely shared moral intuitions. But the theories make widely varying assertions about what those shared intuitions are, while also lacking any evidence to support the assertions. This Article summarizes the results of an empirical study designed to test the competing theories of blackmail to see which best accords with pre- vailing sentiment. Using a variety of scenarios designed to isolate and test the various criteria different theorists have put forth as “the” key to blackmail, this study reveals which (if any) of the various theories of blackmail proposed to date truly reflects laypeople’s moral judgment. Blackmail is not only a common subject of scholarly theorizing but also a common object of criminal prohibition. Every American jurisdiction criminalizes blackmail, although there is considerable variation in its formulation. The Article reviews the American statutes and describes the three general approaches these provisions reflect.
    [Show full text]
  • The Unnecessary Crime of Conspiracy
    California Law Review VOL. 61 SEPTEMBER 1973 No. 5 The Unnecessary Crime of Conspiracy Phillip E. Johnson* The literature on the subject of criminal conspiracy reflects a sort of rough consensus. Conspiracy, it is generally said, is a necessary doctrine in some respects, but also one that is overbroad and invites abuse. Conspiracy has been thought to be necessary for one or both of two reasons. First, it is said that a separate offense of conspiracy is useful to supplement the generally restrictive law of attempts. Plot- ters who are arrested before they can carry out their dangerous schemes may be convicted of conspiracy even though they did not go far enough towards completion of their criminal plan to be guilty of attempt.' Second, conspiracy is said to be a vital legal weapon in the prosecu- tion of "organized crime," however defined.' As Mr. Justice Jackson put it, "the basic conspiracy principle has some place in modem crimi- nal law, because to unite, back of a criniinal purpose, the strength, op- Professor of Law, University of California, Berkeley. A.B., Harvard Uni- versity, 1961; J.D., University of Chicago, 1965. 1. The most cogent statement of this point is in Note, 14 U. OF TORONTO FACULTY OF LAW REv. 56, 61-62 (1956): "Since we are fettered by an unrealistic law of criminal attempts, overbalanced in favour of external acts, awaiting the lit match or the cocked and aimed pistol, the law of criminal conspiracy has been em- ployed to fill the gap." See also MODEL PENAL CODE § 5.03, Comment at 96-97 (Tent.
    [Show full text]