DOCSLIB.ORG

Defining Federal Crimes, Daniel C

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Defining Federal Crimes, Daniel C Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2012 Defining ederF al Crimes – Chapters 2-4 Daniel C. Richman Columbia Law School, [email protected] Kate Stith [email protected] William J. Stuntz [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Criminal Law Commons Recommended Citation Daniel C. Richman, Kate Stith & William J. Stuntz, Defining ederF al Crimes – Chapters 2-4, DEFINING FEDERAL CRIMES, DANIEL C. RICHMAN, KATE STITH & WILLIAM J. STUNTZ, EDS., WOLTERS KLUWER, 2014; YALE LAW SCHOOL PUBLIC LAW WORKING PAPER NO. 253 (2012). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1757 This Working Paper is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. Defining Federal Crimes (chapters 2-4) Daniel C. Richman Paul J. Kellner Professor of Law Columbia University Kate Stith Lafayette S. Foster Professor of Law Yale University William J. Stuntz Henry J. Friendly Professor of Law Harvard University Forthcoming Aspen Publishing. © 2012, all rights reserved. 1 Electronic copy available at: http://ssrn.com/abstract=2103868 Chapter 2 Jurisdiction: Federal Criminal Law and the Commerce Power The Framers of the Constitution did not envision that the federal government would play much of a role in criminal enforcement. To the extent that they contemplated substantive federal criminal law at all, their discussions centered on piracy, crimes against the law of nations, treason, and counterfeiting. The document they produced made no effort to give the federal government general police powers of the sort that states exercised. By one count, only 426 criminal cases were brought in federal courts between 1789 and 1801, a large fraction of which related to the Whiskey Rebellion. See Dwight F. Henderson, Congress, Courts, and Criminals: The Development of Federal Criminal Law, 1801-1829 at 13 (1985). In the absence of relevant federal statutes, Federalist judges simply invoked federal common law and looked to state law to try and punish the rebels. See Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815, 417-18 (2009). Congress was not eager to address crime even in areas where it clearly had constitutional jurisdiction to do so. In 1818, the Supreme Court threw out the conviction in a case where a marine had murdered a cook’s mate on board the U.S.S. Independence while it was anchored in Boston Harbor. United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818) (see also infra p. x [Chapter 3]). Writing for the Court, Chief Justice John Marshall explained that while Congress could have passed a murder statute covering federal warships, it had not, and the matter was thus left to Massachusetts’s exclusive jurisdiction. Indeed, exclusive state jurisdiction over criminal matters was very much the rule during most of the nineteenth century. When Congress did pass penal legislation, it generally targeted activities that injured or interfered with federal property (see Art. IV, sec. 3, cl. 2) or interfered with the function of the federal government itself, particularly its ability to collect taxes. In the last quarter of the nineteenth century, federal criminal law began to take on a new role. No longer was it primarily a means of self-protection. Rather, it became part of a more general (albeit fitful) state-building effort. For a classic account of this general turn, see Stephen Skowronek, Building a New American State: The Expansion of National Administrative 2 Electronic copy available at: http://ssrn.com/abstract=2103868 Capacities, 1877-1920 (1982). Congress could have relied—and in time did rely—on any number of constitutional jurisdictional grants to spin its thickening web of federal criminal law. In Chapter 4, we will see how the Postal Power supported an ever-growing body of mail fraud law. Chapter 6 will show the Spending Power to be a potent weapon against state and local corruption, and Chapter 7 will consider the increasing recourse to the Reconstruction Amendments as a basis for right-deprivation prosecutions. Yet, it is the Commerce Clause that has provided the basis for the vast majority of federal criminal laws enacted by Congress since the post-Reconstruction period. We therefore begin with this fountainhead of federal criminal jurisdiction. Section A explores that part of Commerce Clause jurisdiction on which Congress has chiefly relied: the power to regulate “commerce . among the several states.” Section B considers the part to which Congress has given increasing attention in recent years: the related power to regulate “commerce with foreign nations.” A. “COMMERCE . AMONG THE SEVERAL STATES” 1. Historical Development There is no evidence that any of the Constitution’s Framers thought about criminal law when drafting the Commerce Clause. The commerce power later became a useful source of criminal jurisdiction not because commerce and crime were so obviously connected, but because there was so much commerce. In the late nineteenth and early twentieth centuries—the period of the first great upsurge in federal criminal law—the United States had the fastest-growing and, soon, the largest economy in the world. Both immigrant labor and investment dollars flowed into the country in massive amounts. The United States also had, by a large margin, the most railroads serving the most people across the largest distances of any country in the world. Movement of goods and people across state borders was exploding. The crimes that members of Congress were chiefly interested in prohibiting were commercial in character, though the “commerce” was of a different sort than Madison and his friends imagined when they penned the clause. The late nineteenth and early twentieth centuries were an era of anti-vice crusades—crusades against gambling, prostitution, drugs, and, the biggest crusade of all, liquor. These goods and services are bought and sold in markets, and the relevant markets require the interstate movement of merchandise and/or people. At the same time, with respect to each of these vices, most transactions were (and remain) local: both buyer 3 and seller reside and do business in the same state, usually the same city. The following propositions set patterns for federal criminal law that still hold today. First, the federal government had power only over interstate commerce, and thus could not forbid all markets relating to the vices in question. When, for example, Prohibitionists sought a nationwide ban of the manufacture and sale of alcoholic beverages, they assumed that they needed a constitutional amendment to enact it. The second proposition followed from the first: the federal criminal law of vice would have to coexist with and overlap state law. Federal criminal law would cover territory that states covered as well, rather than dealing with offenses that the states could not touch. Third, the jurisdictional justification for federal vice laws, regulating the interstate movement of goods and people, had little to do with the substantive justification for those laws—that is, the desire to ban the relevant vice. Thus, the jurisdictional “hooks” for the wave of federal vice statutes passed beginning in the 1880s were just that— hooks, not reasons for the criminal prohibitions. See Louis B. Schwartz, Federal Criminal Jurisdiction and Prosecutors’ Discretion, 13 Law & Contemp. Probs. 64, 79-80 (1948) (discussing how courts tend to focus on jurisdictional problems at the expense of focusing on substantive issues of criminality). One more proposition—an intensely practical one—is crucial to understanding the historical evolution of the commerce power and its effect on federal criminal justice. Throughout the nineteenth century, the federal law enforcement bureaucracy remained very small. Agents of the postal service protected the mails; United States marshals protected judges and performed sundry other duties; treasury personnel fought smuggling; and, after its creation in 1865, the Secret Service targeted counterfeiting. There were, however, very few agents and prosecutors available to enforce the broad federal crimes of which Congress soon grew fond. Though the office of the Attorney General dates back to the Founding, there was no Justice Department prior to 1870. Until then, the United States Attorneys brought prosecutions in their respective federal districts, but with little national coordination and with little control over the how federal law enforcement personnel were deployed. Even after its creation, the Justice Department had scant resources, and initially had to rely on the Treasury’s Secret Service agents or Pinkerton Detective Agency operatives for investigative support. The justice system that enforced the law grew much more slowly than the laws that required enforcing. The following case marks a critical stage in the growth of federal Commerce Clause authority. By the end of the nineteenth century, it was clear that Congress could use its plenary authority to exclude things it did not like—e.g., pornography, lottery tickets, and contraceptive 4 devices—from the U.S. mails. See, e.g., Ex parte Jackson, 96 U.S. 727 (1877) (upholding conviction for mailing of lottery circular); Donna Dennis, Licentious Gotham: Erotic Publishing
Load more

Recommended publications
  • STACY LEA BAKER, ) Case No. 10-90127-BHL-7 ) Debtor
    Case 10-59029 Doc 59 Filed 09/28/11 EOD 09/29/11 08:04:30 Pg 1 of 20 SO ORDERED: September 28, 2011. ______________________________ Basil H. Lorch III United States Bankruptcy Judge UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF INDIANA NEW ALBANY DIVISION In re: ) ) STACY LEA BAKER, ) Case No. 10-90127-BHL-7 ) Debtor. ) ) ) MURPHY OIL USA, INC., ) ) Plaintiff, ) ) v. ) Adv. No. 09-59029 ) STACY LEA BAKER, ) ) Defendant. ) JUDGMENT This matter is before the Court on the Plaintiff’s Complaint to Determine Liability and Non-Dischargability of Debt Under 11 U.S.C. § 523, as supplemented by its More Definite Case 10-59029 Doc 59 Filed 09/28/11 EOD 09/29/11 08:04:30 Pg 2 of 20 Statement of the Claim [Docket # 41].1 The Court tried the matter on June 1, 2011. The Plaintiff and Defendants submitted post-trial briefs [Docket #s 71 and 72, respectively] on June 17, 2011. Murphy Oil USA, Inc. (“Murphy”), the Plaintiff, seeks a determination that the Defendants, John M. Baker and Stacy Lea Baker, are liable to it under various state law theories. Further, Murphy seeks a judgment liquidating the Bakers’ alleged obligations to Murphy and finding that the debts are excepted from discharge in their respective Chapter 7 bankruptcy cases pursuant to 11 U.S.C. § 523(a)(2), (4), or (6). Having considered the foregoing, and for the reasons set forth below, the Court finds Mr. Baker to be liable to Murphy in the amount of $691,757.78, which judgment may not be discharged in Mr.
    [Show full text]
  • October 1988 Federal Sentencing Guidelines Manual
    UNITED STATES SENTENCING COMMISSION GUIDEUNES MANUAL [Incorporating guideline amendments effective October 15, 1988] UNITED STATES SENTENCING COMMISSION 1331 PENNSYLVANIA AVENUE, NW SUITE 14OO WASHINGTON, D.C. 20004 (202) 662-8800 William W. Wilklns, Jr. Chairman Michael K. Block Stephen G. Breyer Helen G. Corrothers George E. MacKinnon llene H. Nagel Benjamin F. Baer (ex officio) Ronald L. Gainer (ex officio) William W. Wilkins, Jr. Chairman Michael K. Block Stephen G. Breyer Helen G. Corrothers George E. MacKinnon llene H. Nagel Benjamin F. Baer (ex-officio) Ronald L. Gainer (ex-officio) Note: This document contains the text of the Guidelines Manual incorporating amendments effective January 15, 1988, June 15, 1988, and October 15, 1988. TABLE OF CONTENTS CHAPTER ONE: Introduction and General Principles. Part A - Introduction 1.1 1. Authority 1.1 2. The Statutory Mission_ 1.1 3. The Basic Approach 1.2 4. The Guidelines' Resolution of Major Issues 1.5 5. A Concluding Note 1.12 Part B - General Application Principles 1.13 CHAPTER TWO: Offense Conduct 2.1 Part A - Offenses Against the Person 2.3 1. Homicide 2.3 2. Assault 2.4 3. Criminal Sexual Abuse 2.8 4. Kidnapping, Abduction, or Unlawful Restraint 2.11 5. Air Piracy 2.12 6. Threatening Communications 2.13 Part B - Offenses Involving Property 2.15 1. Theft, Embezzlement, Receipt of Stolen Property, and Property Destruction 2.15 2. Burglary and Trespass 2.19 3. Robbery, Extortion, and Blackmail 2.21 4. Commercial Bribery and Kickbacks 2.25 5. Counterfeiting, Forgery, and Infringement of Copyright or Trademark 2.27 6.
    [Show full text]
  • Self-Help in the Collection of Debts As a Defense to Criminal Prosecution
    Washington University Law Review Volume 24 Issue 1 1938 Self-Help in the Collection of Debts as a Defense to Criminal Prosecution Milton H. Aronson Washington University School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Criminal Law Commons Recommended Citation Milton H. Aronson, Self-Help in the Collection of Debts as a Defense to Criminal Prosecution, 24 WASH. U. L. Q. 117 (1938). Available at: https://openscholarship.wustl.edu/law_lawreview/vol24/iss1/11 This Note is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. 19381 NOTES SELF-HELP IN THE COLLECTION OF DEBTS AS A DEFENSE TO CRIMINAL PROSECUTION Adverse economic conditions present the spectacle of petty creditors going to unusual lengths to collect. Some apply cajol- ery, trickery, threats, even force in attempting to secure pay- ments. But save in instances of self-defense, recaption and repri- sals, entry on lands, the abatement of nuisances, and distraint, the right to self-redress is not recognized,' because The public peace is a superior consideration to any one man's private property; and * * * , if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided that this natural right * * * shall never be exercised where such exertion must occasion strife and bodily contention, or endanger the peace of so- 2 ciety.
    [Show full text]
  • Infanticide in Early Modem Gennany: the Experience of Augsburg, Memmingen, Ulm, and Niirdlingen, 1500-1800
    Infanticide in Early Modem Gennany: the experience of Augsburg, Memmingen, Ulm, and Niirdlingen, 1500-1800 Margaret Brannan Lewis Charlottesville, Virginia M.A., History, University of Virginia, 2008 B.A., History and Gennan, Furman University, 2006 A Dissertation presented to the Graduate Faculty of the University of Virginia in Candidacy for the Degree of Doctor of Philosophy Department of History University of Virginia May, 2012 i Abstract Between 1500 and 1800, over 100 women and men were arrested for infanticide or abortion in the city of Augsburg in southern Germany. At least 100 more were arrested for the same crime in the three smaller cities of Ulm, Memmingen, and Nördlingen. Faced with harsh punishments as well as social stigma if found pregnant out of wedlock, many women in early modern Europe often saw abortion or infanticide as their only option. At the same time, town councils in these southern German cities increasingly considered it their responsibility to stop this threat to the godly community and to prosecute cases of infanticide or abortion and to punish (with death) those responsible. The story of young, unmarried serving maids committing infanticide to hide their shame is well-known, but does not fully encompass the entirety of how infanticide was perceived in the early modern world. This work argues that these cases must be understood in a larger cultural context in which violence toward children was a prevalent anxiety, apparent in popular printed literature and educated legal, medical, and religious discourse alike. In the sixteenth and seventeenth centuries, this anxiety was expressed in and reinforced by woodcuts featuring mass murders of families, deformed babies, and cannibalism of infants by witches and other dark creatures.
    [Show full text]
  • Proof of Guilt Presumption
    PROOF OF GUILT PRESUMPTION OF INNOCENCE ­ Requires the government to prove the guilt of a criminal D and relieves D ​ of burden to prove their innocence ● Why do we have it? ○ Cost­benefit determination ­ some errors were worse / more costly than others ○ Reduces the risk of error ○ Commands the respect of citizens ● Proof Beyond a Reasonable Doubt ○ Proof of such a convincing character that you would be willing to rely and act upon it without hesitation in most important of your own affairs ○ Differing instructions: ■ The “Moral Certainty” Instruction ­ If the juror cannot say to a moral certainty that ​ they feel an abiding conviction, after all evidence is compared, considered ■ The “Firmly Convinced” Instruction ­ If juror believes there is not a real possibility of ​ the D being not guilty ■ The No Waiver or Vacillation Instruction ­ If juror’s feeling is one that is not stable ​ but wavers or vacillates then there is reasonable doubt ■ The “No Real Doubt” Instruction ­ Not to mathematical certainty but reasonable/real ​ doubt exists about non guilt ■ The “Thoroughly Convinced” Instruction ­ No explanation of grounds but rather in ​ their truth of conscience being thoroughly convinced of their impression of the evidence PRINCIPLES OF PUNISHMENT Theories: ​ ● RETRIBUTIVIST ○ Goal: to make the D suffer in order to pay for their crime ​ ■ Punishment is justified because people deserve it (eye for an eye) ■ Personal blameworthiness, social harm caused ■ Looks backward to punish for the crime ○ Two categories: ■ Negative Retributivism
    [Show full text]
  • SENATE BILL No. 254 _____
    Introduced Version SENATE BILL No. 254 _____ DIGEST OF INTRODUCED BILL Citations Affected: IC 35-31.5-2; IC 35-32-2-1; IC 35-43-4-2. Synopsis: Organized retail theft. Makes theft a Level 6 felony if a person: (1) knowingly or intentionally exerts unauthorized control over property and the person uses the Internet to sell, deliver, or distribute the property; or (2) knowingly or intentionally exerts unauthorized control over retail property having a value of less than $750 and certain other conditions apply. Makes theft a Level 5 felony if: (1) the value of the retail property is at least $750 and less than $2,500 and certain other conditions apply; (2) the retail property is a firearm; (3) the retail property is exchanged for cash, a gift card, a merchandise card, or other item of value; or (4) the person has a prior unrelated conviction for theft or criminal conversion. Makes theft a Level 4 felony if the value of the retail property is at least $2,500 and certain other conditions apply. Provides that, in determining the value of the property, acts of theft committed in a single episode of criminal conduct may be charged in a single count. Provides that theft of retail property that occurs in more than one county over a six month period may be tried in any county where the theft occurred. Effective: July 1, 2019. Ruckelshaus January 3, 2019, read first time and referred to Committee on Corrections and Criminal Law. 2019 IN 254—LS 6622/DI 123 Introduced First Regular Session of the 121st General Assembly (2019) PRINTING CODE.
    [Show full text]
  • The Legal Career of Harry Claiborne
    UNLV Retrospective Theses & Dissertations 1-1-2008 Country lawyer in a maverick boom town: The legal career of Harry Claiborne J. Bruce Alverson University of Nevada, Las Vegas Follow this and additional works at: https://digitalscholarship.unlv.edu/rtds Repository Citation Alverson, J. Bruce, "Country lawyer in a maverick boom town: The legal career of Harry Claiborne" (2008). UNLV Retrospective Theses & Dissertations. 2807. http://dx.doi.org/10.25669/iflf-kxkg This Dissertation is protected by copyright and/or related rights. It has been brought to you by Digital Scholarship@UNLV with permission from the rights-holder(s). You are free to use this Dissertation in any way that is permitted by the copyright and related rights legislation that applies to your use. For other uses you need to obtain permission from the rights-holder(s) directly, unless additional rights are indicated by a Creative Commons license in the record and/or on the work itself. This Dissertation has been accepted for inclusion in UNLV Retrospective Theses & Dissertations by an authorized administrator of Digital Scholarship@UNLV. For more information, please contact [email protected]. COUNTRY LAWYER IN A MAVERICK BOOM TOWN: THE LEGAL CAREER OF HARRY CLAIBORNE by J. Bruce Alverson Bachelor of Science University of Nevada 1964 Juris Doctorate University of San Francisco 1970 Master of Arts University of Nevada, Las Vegas 1995 A dissertation submitted in partial fulfillment of the requirements for the Doctor of Philosophy Degree in History Department of History College of Liberal Arts Graduate College University of Nevada, Las Vegas August 2008 UMI Number: 3338177 Copyright 2009 by Alverson, J.
    [Show full text]
  • The General Articles, Articles 133 and 134 of the Uniform Code of Military Justice
    St. John's Law Review Volume 35 Number 2 Volume 35, May 1961, Number 2 Article 5 The General Articles, Articles 133 and 134 of the Uniform Code of Military Justice Gilbert G. Ackroyd Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Symposium is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. THE GENERAL ARTICLES, ARTICLES 133 AND 134 OF THE UNIFORM CODE OF MILITARY JUSTICE LT. COL. GCILBIRT G. ACKROYD t INTRODUCTION W E begin this discussion by taking certain liberties with ' the Uniform Code of Military Justice, for that Code mentions only one "General Article," Article 134, and we are going to use that description in referring to Article 133, "Conduct Unbecoming an Officer and Gentleman," as well. However, considering the history and indeed the very nature of these two articles, the reader will readily understand that the term "general" is here being used merely in a sense opposite to the term "specific," that is, in regard to the rather generic ideas of criminality or misconduct, which in some instances consist only of a failure to comply with certain necessary mil- itary standards, expressed in both of these articles. It also will be found that some of the particular acts or omissions which run afoul of these two articles do not always have con- venient criminal connotations of the type immediately recogniz- able by one trained in the common law, but perhaps somewhat unfamiliar with military life, customs, and historical devel- opment.
    [Show full text]
  • Criminality and the Common Law Imagination (1700-1900)
    Criminality and the Common Law Imagination (1700-1900) by Erin Leigh Sheley A.B. in English, June 2002, Harvard University J.D., June 2006, Harvard University A Dissertation submitted to The Faculty of The Columbian College of Arts and Sciences of The George Washington University in partial fulfillment of the requirements for the degree of Doctor of Philosophy May 17, 2015 Dissertation directed by Tara Ghoshal Wallace Professor of English The Columbian College of Arts and Sciences of The George Washington University certifies that Erin Leigh Sheley has passed the Final Examination for the degree of Doctor of Philosophy as of March 27, 2015. This is the final and approved form of the dissertation. Criminality and the Common Law Imagination (1700-1900) Erin Leigh Sheley Dissertation Research Committee: Tara Ghoshal Wallace, Professor of English, Dissertation Director Daniel DeWispelare, Assistant Professor of English, Committee Member Maria Frawley, Professor of English, Committee Member ii Dedication The author wishes to dedicate this dissertation to her parents, Janet and G. Michael Sheley. iii Acknowledgements The author wishes to thank Maria Frawley, Daniel DeWispelare, Kathryn Temple, Judith Plotz, Robert McRuer, David Mitchell, Constance Kibler and Jonathan Gil Harris for their support and guidance throughout the process of writing this dissertation. Above all she wishes to thank Tara Ghoshal Wallace for many years of mentorship, inspiration, encouragement, and friendship. iv Abstract of Dissertation Criminality and the Common Law Imagination (1700-1900) This dissertation explores the relationship between the legal account of criminality and the cultural narratives sustaining it during the eighteenth and nineteenth centuries. It considers how the singular importance of precedent to Anglo-American law resulted in an imagery of historical legitimacy that came to shape the cultural construction of criminality.
    [Show full text]
  • The Baghdad Penal Code
    PRICE Rs. 2. (> ^ ©> cy ^ THE BAGHDAD PENAL CODE J I, Lieutenant-General William Rame Marshall, Knight Com­ mander of the Bath, Knight Commander of the Star of India, by virtue of the authority vested in me as General Officer Commanding- m-Chief His Britannic Majesty's Forces in Mesopotamia, do hereby proclaim and order as follows :— 1. The Law entitled " The Baghdad Penal Code *' is hereby promulgated and shall be brought into force on the 1st day of January, 1919. Copies of the said Law shall be open to inspec­ tion and shall be on sale at the offices of all Political Officers and Assistant Political Officers in the Baghdad Wilayet. 2. Offences committed against members or followers of the British Forces or any authority established by order of the British authorities may be punished either under the provisions of " The Baghdad Penal Code " or under the provisions of " The Indian Penal Code ". 3. The Code shall take effect and be applied subject to the exigencies of the Military Occupation of the Territories to which it .applies, and to the laws and customs of war. Made at Baghdad this 21st day of November, 1918. W. R. MARSHALL, LIEUT.-GENERAI., Commanding-in-Chief, Mes. E%. Force. MEMORANDUM EXPLANATORY OF THE BAGHDAD PENAL CODE. " The Baghdad Penal Code " has been prepared as a temporary and provisional law for use in the Courts which have been established by the British Military Authorities in the Baghdad^ Wilayet. In accordance with the policy that so far as possible the local laws in existence at the date of the Occupation should be continued, the Baghdad Penal Code is based on the Ottoman Penal Code which at the date of the Occupation was in force in the Baghdad Wilayet as elsewhere in the Ottoman Empire.
    [Show full text]
  • Unjustified: the Practical Irrelevance of the Justification/Excuse Distinction
    University of Michigan Journal of Law Reform Volume 43 2009 Unjustified: The Practical Irrelevance of the Justification/Excuse Distinction Gabriel J. Chin University of Arizona, James E. Rogers College of Law Follow this and additional works at: https://repository.law.umich.edu/mjlr Part of the Criminal Law Commons, and the Law and Psychology Commons Recommended Citation Gabriel J. Chin, Unjustified: The Practical Irrelevance of the Justification/Excuse Distinction, 43 U. MICH. J. L. REFORM 79 (2009). Available at: https://repository.law.umich.edu/mjlr/vol43/iss1/5 This Essay in Response is brought to you for free and open access by the University of Michigan Journal of Law Reform at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in University of Michigan Journal of Law Reform by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. UNJUSTIFIED: THE PRACTICAL IRRELEVANCE OF THE JUSTIFICATION/EXCUSE DISTINCTIONt GabrielJ. Chin* INTRODUCTION In recent decades, the distinction between justification and ex- cuse defenses has been a favorite topic of theorists of philosophy and criminal law. Paul Robinson offers this representative general definition: Justified conduct adheres to the criminal law's rules of con- duct and is to be encouraged (or at least tolerated) in similar circumstances in the future.... An excuse, in contrast, repre- sents a legal conclusion that the conduct is wrong and undesirable, that the conduct ought not to be tolerated and ought to be avoided in the future, even in the same situation. Criminal liability nonetheless is inappropriate because some characteristic of the actor or the actor's situation vitiates the actor's blameworthiness.
    [Show full text]
  • IC 35-43-4 Chapter 4. Theft, Conversion, and Receiving Stolen Property IC 35-43-4-0.1 Application of Certain Amendments to Chapt
    IC 35-43-4 Chapter 4. Theft, Conversion, and Receiving Stolen Property IC 35-43-4-0.1 Application of certain amendments to chapter Sec. 0.1. The amendments made to section 4 of this chapter by P.L.84-2001 are intended to specify that the scope of the amended terms includes retail sales receipts, universal product codes (UPC), and other product identification codes. The amendment of these definitions shall not be construed to mean that these terms did not cover retail sales receipts, universal product codes (UPC), and other product identification codes before July 1, 2001. As added by P.L.220-2011, SEC.598. Amended by P.L.63-2012, SEC.52. IC 35-43-4-1 Definitions Sec. 1. (a) As used in this chapter, "exert control over property" means to obtain, take, carry, drive, lead away, conceal, abandon, sell, convey, encumber, or possess property, or to secure, transfer, or extend a right to property. (b) Under this chapter, a person's control over property of another person is "unauthorized" if it is exerted: (1) without the other person's consent; (2) in a manner or to an extent other than that to which the other person has consented; (3) by transferring or encumbering other property while failing to disclose a lien, adverse claim, or other legal impediment to the enjoyment of that other property; (4) by creating or confirming a false impression in the other person; (5) by failing to correct a false impression that the person knows is influencing the other person, if the person stands in a relationship of special trust to the other person; (6) by promising performance that the person knows will not be performed; (7) by expressing an intention to damage the property or impair the rights of any other person; or (8) by transferring or reproducing: (A) recorded sounds; or (B) a live performance; without consent of the owner of the master recording or the live performance, with intent to distribute the reproductions for a profit.
    [Show full text]