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Detailed Table of Contents (PDF Download) Contents Table of Problem Cases xxxi Preface xxxv Acknowledgments xxxvii BACKGROUND MATERIALS Overview of the Criminal Justice Process: The Steps in the Process xlv Overview of Proving Crimes lxvi Model Penal Code Section 1.12 lxvi Notes lxvi PART I. INTRODUCTORY MATERIALS 1 Section 1. The Nature and Structure of Criminal Law 3 Overview of the Nature of Criminal Law 3 Hypothetical: Fear, Pain, and Bubble Gum (#1) 4 Model Penal Code Sections 5 Notes 5 Overview of the Sources of Criminal Law 9 Notes 9 Overview of the Operational Structure of Criminal Law 12 Hypothetical: Fear of the Daggers (#2) 13 Notes 14 Overview of the Functions of Criminal Law Doctrine 20 Notes 20 Hypothetical: Your Basement Burglar (#3) 21 Section 2. The Legality Principle 31 The Case of Ray Brent Marsh (#4) 32 The Law 38 Code of Georgia Annotated (2002) 38 Cases 39 Model Penal Code Sections 40 Overview of the Legality Principle 40 Notes 40 xi xii Contents Overview of Statutory Interpretation 46 Notes 46 Problems 51 The Human Puppet Master (#5) 51 Is a Fetus a Human Being? (#6) 52 Gangsters Can’t Stop (#7) 53 Marsh Continued . (#8) 53 Discussion Issue and Materials 54 Issue: Should the Criminal Law Recognize an Exception to the Legality Principle When the Crime Is Serious? 54 Report to the President from Justice Robert H. Jackson, Chief of Counsel for the United States in the Prosecution of Axis War Criminals 54 Gerry J. Simpson, Didactic and Dissident Histories in War Crimes Trials 56 Discussion Issue and Materials 59 Issue: Should Criminal Statutes Be Interpreted Using a “Rule of Lenity,” Under Which Ambiguities Are Resolved in Favor of the Defendant? 59 Dan M. Kahan, Lenity and Federal Common Law Crimes 59 Zachary Price, The Rule of Lenity as a Rule of Structure 61 Lawrence M. Solan, Law, Language, and Lenity 63 Section 3. Theories of Punishment 65 The Case of Sara Jane Olson (#9) 66 The Law 71 Deering’s California Penal Code Annotated (1975) 71 Model Penal Code Section 74 Overview of Theories of Punishment: Identifying, Evaluating, and Adopting Principles 74 Hypothetical: Daughters’ Mustard (#10) 74 Notes 75 Problems 88 Sara Jane Olson — Revisited (#11) 88 Stopping Desertions in a Time of War (#12) 88 Air Conditioning Fraud as Strike Three (#13) 89 Discussion Issue and Materials 90 Issue: Which Principle or Combination of Principles Should the Criminal Law Use in Determining How Much Liability and Punishment Should Be Distributed to Whom? 90 Michael T. Cahill, Punishment Pluralism 90 Contents xiii Model Penal Code Section 1.02(2)(a) Commentary (Proposed Amendments) 92 Paul H. Robinson, The A.L.I.’s Proposed Distributive Principle of “Limiting Retributivism”: Does It Mean in Practice Anything Other than Pure Desert? 94 PART II. OFFENSE REQUIREMENTS 99 Section 4. Culpability Requirements 101 The Case of Thomas Fungwe (#14) 102 The Law 104 Michigan Statutes Annotated (1999) 104 Michigan Cases 107 Model Penal Code Sections 108 Overview of Culpability Requirements 108 Hypothetical: Babies and Ditches (#15) 108 Notes 109 Problems 126 Too Young, Too Immature (#16) 126 A Vegan Death (#17) 127 Cut! (#18) 127 The Weight of Authority (#19) 128 Rough Play (#20) 129 Discussion Issue and Materials 129 Issue: What Is the Minimum Culpability, if Any, that Should Be Required for Criminal Liability? 129 Glanville Williams, Reasons for Punishing Negligence 130 Model Penal Code Section 2.02 Commentary 131 Samuel H. Pillsbury, Crimes of Indifference 132 Larry Alexander & Kimberly Kessler Ferzan with Stephen Morse, Negligence 132 Laurie L. Levenson, Good Faith Defenses: Reshaping Strict Liability Crimes 134 Section 5. Culpability and Mistake 139 The Case of Thomas Laseter (#21) 139 The Law 143 Alaska Statutes (1982) 143 Model Penal Code Section 150 Overview of Mistake Defenses 150 Notes 150 Problems 157 xiv Contents Stomach, Kidney, Whatever (#22) 157 Life- Saving Necrophilia (#23) 157 Discussion Issue and Materials 158 Issue: Should the Reasonableness of Beliefs (Including Mistaken Beliefs) Be Judged by an Objective or an Individualized Standard? 158 H.L.A. Hart, Punishment and Responsibility 158 Model Penal Code Section 2.02 Commentary 159 George P. Fletcher, The Theory of Criminal Negligence: A Comparative Analysis 159 PART III. GRADING LIABILITY: THE EXAMPLE OF HOMICIDE 163 Section 6. Homicide: Doctrines of Aggravation 165 The Case of Sabine Davidson (#24) 165 The Law 170 Kansas Statutes Annotated (1997) 170 The Kansas Sentencing Commission Desk Reference Manual (1997) 174 Model Penal Code Sections 179 Overview of Homicide Aggravations 179 Notes on Reckless Murder 179 Hypothetical: Visiting a Witness (#25) 182 Notes on Felony Murder 183 Problems 191 An Exxon Kidnap Gone Bad (#26) 191 Fleeing as Murder (#27) 192 A Robbers’ Dispute (#28) 192 Killing Your Co- Felon Through a Gun Battle with Police (#29) 193 Discussion Issue and Materials 193 Issue: Should the Criminal Law Recognize a Felony Murder Rule? 193 Model Penal Code Section 210.2 Commentary, Felony Murder 194 Guyora Binder, The Culpability of Felony Murder 195 Section 7. Death Penalty 197 The Case of William King (#30) 197 The Law 203 Texas Penal Code (1998) 203 Contents xv Texas Code of Criminal Procedure (1998) 208 Model Penal Code Section 210 Overview of the Death Penalty 210 Notes 210 Problems 213 Drunk Driving as Capital Murder (#31) 213 Child Rape and the Death Penalty (#32) 213 The Original Nuclear Proliferation (#33) 214 Discussion Issue and Materials 215 Issue: Should Capital Punishment Be Allowed? 215 Hugo A. Bedau, Arguments For and Against Capital Punishment 215 Daniel S. Nagin & John V. Pepper (eds.), Deterrence and the Death Penalty 218 Richard C. Dieter, The Future of the Death Penalty in the United States 219 Ernest van den Haag, Punishing Criminals 221 Robert Weisberg, Deregulating Death 221 Section 8. Homicide: Doctrines of Mitigation 223 The Case of John Gounagias (#34) 223 The Law 225 Annotated Codes and Statutes of Washington (1914) 225 Michigan Case 227 Model Penal Code Sections 228 Overview of Homicide Mitigations 228 Notes 228 Problems 234 The Vigilante Mother (#35) 234 A Mercy Killing as His Last Act (#36) 235 Escaping the Aliens (#37) 235 Discussion Issues and Materials 236 Issue: Should One Have the Right to End One’s Own Life? If So, Should Others Be Able to Help if Necessary? 236 Model Penal Code Section 210.5 Commentary 236 Neil M. Gorsuch, The Right to Assisted Suicide and Euthanasia 238 Robert M. Hardaway et al., The Right to Die and the Ninth Amendment: Compassion and Dying After Glucksberg and Vacco 240 xvi Contents Section 9. Causation 245 The Case of Joe Paul Govan (#38) 245 The Law 248 Arizona Revised Statutes (1980) 248 Model Penal Code Sections 255 Overview of Causation 255 Hypothetical: Manny the Master (#39) 255 Notes 256 Problems 260 Two Killers, One Killing (#40) 260 Pulling Out His Own Tubes (#41) 261 A Patriotic Suicide (#42) 261 A Jump to Escape, and Drown (#43) 262 Homicide Review Problem 263 Can You Be Your Own Intervening Actor? (#44) 263 Discussion Issue and Materials 264 Issue: Should Resulting Harm Be Relevant to Criminal Liability? Should a Completed Offense Be Punished More than an Unsuccessful Attempt? 264 Michael S. Moore, The Independent Moral Significance of Wrongdoing 264 George P. Fletcher, A Crime of Self- Defense: Bernhard Goetz and the Law on Trial 267 Paul H. Robinson, The Role of Harm and Evil in Criminal Law: A Study in Legislative Deception? 269 PART IV. INCHOATE LIABILITY 273 Section 10. Attempt Liability 275 The Case of Robert Jackson (#45) 275 The Law 278 United States Code (1976) 278 Federal Case 280 Model Penal Code Sections 280 Overview of Attempt Liability 280 Hypothetical: A Plan to Kill (#46) 280 Notes 281 Problems 293 Second Thoughts on a Holiday Breakout (#47) 293 No Risk, No Foul? (#48) 294 Killing with AIDS (#49) 294 Contents xvii Discussion Issue and Materials 295 Issue: What Degree of Culpability as to a Result Element Should Be Required for Attempt Liability? 295 Model Penal Code, Section 5.01 Commentary 295 Michael T. Cahill, Attempt, Reckless Homicide, and the Design of Criminal Law 296 Paul H. Robinson, Structure and Function in Criminal Law 298 Section 11. Impossibility 301 The Case of John Henry Ivy (#50) 301 The Law 304 Mississippi Code Annotated (1988) 304 Mississippi Case 306 Model Penal Code Sections 307 Overview of Impossibility 307 Hypothetical: The Smuggler’s Deceit (#51) 307 Notes 308 Problems 313 Lethal Spitting (#52) 313 An Impossible Rape (#53) 314 In re “The Nose . .” (#54) 315 Discussion Issue and Materials 315 Issue: If, Under the Circumstances, There Is Little or No Objective Likelihood of an Attempt Being Successful, Should the Attempt Nonetheless Constitute a Crime? In Other Words, Should a Potential for Actual Commission Be Required, or Is a Subjective Belief in the Potential for Commission Enough? 315 George P. Fletcher, A Crime of Self- Defense: Bernhard Goetz and the Law on Trial 316 Model Penal Code Section 5.01 Commentary, Impossibility — Policy Considerations 316 Lawrence Crocker, Justice in Criminal Liability: Decriminalizing Harmless Attempts 317 Section 12. Conspiracy 323 The Case of Sheik Omar Abdel Rahman (#55) 323 The Law 328 United States Code, Title 18 (1993) 328 Federal Cases 337 Model Penal Code Sections 338 xviii Contents Overview of Conspiracy 338 Notes 338 Problems 348 Arranging a Birthday Party Fight, or a Killing? (#56) 348 Truck Driver or Drug Smuggler? (#57) 349 Cannibal Cop or Harmless Fantasizer? (#58) 350 No Risk, No Foul? — Revisited (#59) 351 Discussion Issue and Materials 351 Issue: In Addition to Using Conspiracy as an Inchoate Offense, Should the Law Also Recognize It as a Substantive Offense in Order to Aggravate Punishment for Group Criminality? 351 Developments in the Law: Criminal Conspiracy 351 Model Penal Code Section 5.03 Commentary, Criminal Conspiracy — Introduction 352 Cass R.
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