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JUSTIFICATIONS FOR PUNISHMENT Punishment is the social practice of intentionally inflicting suffering on certain individuals 2 main justifications: (1) Retributive (looks back); (2) Utilitarian (looks forward)
Retribution Punishment is deserved b/c people deserve it KANT: Punishment should be imposed only b/c person has committed a crime. Person is morally wrong and owes a debt to society. Right or retaliation must drive public court but must preserve human dignity. Punishment should be measured by principle of equality (eye for an eye) / proportionality. And death for murder, although punishment should be painless, unless other people might be regarded as participators in the murder. STEPHEN: It is morally right to hate criminals and the infliction of punishment gives definite expression and justification to that hatred. ROYAL COMMISSION on CAPITAL PUNISHMENT: No matter what the deterrent effect, punishment on criminals should adequately reflect the revulsion felt by the great majority of citizens for them; proportionate punishment maintains respect for the law FEINBERG: Punishment is a way in which society expresses its denunciation of wrong doing, no matter if there is a deterrent effect. Punishment therefore has a symbolic significance in showing community’s strong disapproval of criminal acts and getting back at the criminal. DURKHEIM: Punishment keeps society together by sustaining common consciousness MOORE: We are justified in punishing because offenders deserve it and this justification gives society the duty to punish. MORRIS: Connecting punishment with the violation of the mutuality system of benefit and burden is both reasonable and just. Offenders, otherwise, retains the benefit without be constrained by the burden. BENTHAM: Laws should augment total happiness in community. Punishment is itself evil and should only be done to exclude some greater evil. Thus, punishment should not be inflicted where it is groundless, inefficacious, unprofitable, or needless MURPHY: (Marxist Take) Retributive theory presupposes men are of a community of shared values and rules; punishment is deserved b/c one owes payment for shared payment. But inequality creates need from some and capitalist society encourages greed. Bring lower income into social fold and they might recognize benefit of retribution. MACKIE: Retributive principles cannot be defended even though retributive attitudes prevail. Repayment, Annulment, and Fair Play are not valid reasons for retribution. MOORE: Mixed theory that punishment is justified if and only if it achieves a net social gain AND is given to offenders who deserve it. prevention, rehabilitation, and incapacitation (utilitarian) are not sufficient or acceptable to society; so, retributivism is left
Utilitarian: Deterrence Punishment designed to prevent the commission of future offenses General deterrence deters potential offenders in the general community Specific deterrence deters the offender only Deterrence through threat of imprisonment o BENTHAM: Rational-Actor Model - Men are rational calculators, driven by pain & pleasure. Threat of pain deters. o POSNER: Across social and economic classes, criminals respond to changes in opportunity costs so rational-actor model is good o WILSON: Where probability of going to prison for robbery is low and robbery rates are high can mean deterrence works or that high robbery rates ―deter‖ the prosecution o GILLIGAN: Rational self-interest does not work in extreme psychological duress because people do not calculate. And not everyone has a choice in their way of life. o FLEISHER: The lives are street hustlers are a result of default, not career choices. o Strict punishment for all dangerous crimes and things like ―3 strikes and you’re out‖ can cause criminals to do more harm b/c do not fear greater punishment o Increase deterrent effect by increasing certainty of punishment. Increasing severity of punishment has a doubtful deterrent effect. Deterrence Through Stigma o KAHAN: Public shaming has financial and social implications - substitute for imprisonment. o MASSARO: On the other hand, shaming may encourage offenders to seek out subcultures that accept the ―particular norm violations.‖ o GILLIGAN: The emotion of shame is the ultimate cause of all violence; increase it and you’ll get more, you fools; prisons and fines are at least controllable, measured by the state
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o o o o WHITMAN: System of shaming means abandoning courts’ duty to be the imposers of measured punishment. ANDENAES: Punishment may have three sorts of general-preventive effects: (1) deterrent effect, (2) strengthen moral inhibitions, and (3) stimulate habitual law-abiding conduct. SEIDMAN: Most important method of teaching moral inhibitions is the criminal law. ROBINSON & DARLEY: Our society relies on the criminal law for norm-nurturing. There is evidence that people are inclined to accept the law as a source of moral authority. With this legitimacy, people more likely to regard judgments about right and wrong as appropriate. The criminal law must make clear its overriding concern is doing justice in order to gain this credibility.
Utilitarian: Rehabilitation Rehabilitating criminals with psychological ―treatment‖ so that they can be safely returned to the streets by studying the personality of the offender in order to successfully attack the crime. Goal is preventing recidivism (repeat offender). The effects of rehabilitation efforts have been questioned. RADZINOWICZ: Penal policy moved through 3 stages: (1) utilitarian deterrence (extreme punishment for any offense); (2) retributive and proportionality (individual fairness, but individuals objectively); (3) subjective individual fairness MOORE: Rehab ideals: 1) make streets safer, 2) improve offenders’ lives. Second, paternalistic approach unwarranted b/c it takes resources away from those more worthy, value of liberty threatened unless disorderly or young, and the threat of misuse VITIELLO: Certain offenders are amenable to rehabilitation and could warrant resources HIRSH & MAHER: Programs that succeed in rehab are generally well-funded, staffed, and implemented. Blameworthiness and susceptibility to treatment are not necessarily correlated
Utilitarian: Incapacitation Keep people in prison so they are off the streets DIIULIO, JR: Keeping offenders in prison is cheaper than letting him loose. (unless the offender is a first-time drug offender). Diiulio is criticized b/c the empirical analysis of his study is faulty. Prisoners do not commit offenses uniformly over their entire adult life-times. Also, there are ethical concerns b/c offenders would be imprisoned for a longer period b/c of predictions of their future and not actual criminality. Also, the creation of more prisons is expensive. DEPT. of JUSTICE: Target high-rate offenders-selective incapacitation. Critics argue unequal sentences for equal crimes unfair b/c future behavior unpredictable. But arguably judges already do some of this subjective sentencing. DONOHUE & SELIGMAN: Redirect cost of incarceration to early crime prevention?
Punishment Applied Regina v. Dudley and Stephens (1884) 135 o Ds on a ship with no food or water, killed a boy on the boat for food (would have died of starvation otherwise o ISSUE: Was the killing murder under the circumstances? o HOLDING: Court decided that killing under the circumstances was murder and that the sentence to Ds was death. Killing is only justified as self-defense. ―To preserve one’s life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it.‖ Even though we set standards that we cannot reach ourselves, there was no legal justification or necessity for killing the boy and not anybody else. Dudley punished to deter other from doing cannibalism. Judges merged morality and law o RULE: Temptation to act in these circumstances does not constitute necessity. Necessity to preserve life is not unqualified. ARE THEY DESERVING OF PUNISHMENT? Crown reduced punishment from death to 6 months drastic reduction Theories of punishment applied to Dudley and Stevens (1) Rehabilitation – No reason to reform Ds and judges seems to concede that they would act if similarly if in that situation so probably not abnormal requiring rehab (2) Deterrence – Judges did not accept ―custom of the sea‖ argument. There is no real general deterrence because people in that situation lose their rationality and won’t think of consequences when death is imminent. (3) Retribution – Ds did what anyone would do in that situation so not really blameworthy Law and morality cannot be separated entirely (HYPOs: mountain climber cut loose, ship captain closing off part of ship hit by iceberg) If Dudley and Stevens get off, then where do you draw the line on extreme circumstances?
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ACTUS REUS (conduct) Voluntary Acts Notes o Liability is based on voluntary acts—people don’t deserve retribution when they didn’t mean to do something; people can’t be deterred from involuntary acts o Involuntary acts are acts done by the muscles without any control of the mind o Voluntary acts include habitual acts, acts with unforeseeable consequences, impulsive acts, unintentional acts o Hypnosis: MPC says involuntary actions, some courts hold voluntary o Possession requires that the D knew or should have known (178—US v. Garrett—gun in purse at airport, she forgot but should have known) o Legal insanity v. involuntary acts D gets B/P for legal insanity (elements of crime can still be proven) and effect of acquittal is commitment P has B/P for voluntary act (necessary element of the crime) and effect of acquittal is freedom o 2 situations where human actions misfire actions are done mistakenly, accidentally, or compulsorily—want to mitigate responsibility or excuse the act actions result from seizures, convulsions, reflex movements, sleepwalking—not an excuse, but as if no act occurred at all Martin v. State (AL Ct App 1944) 173 o D convicted of being drunk on a public highway o Statute: Any person who, while intoxicated or drunk, appears in any public place where one or more persons are present, . . . and manifests a drunken condition by boisterous or indecent conduct, or loud and profane discourse, shall, on conviction, be fined‖ o Conviction overturned—statute presupposes a voluntary appearance, D was involuntarily and forcibly carried to the highway (wasn’t a product of the effort of the actor) o AL: all aspects have to be voluntary Winzar v. Chief Constable of Kent (1983) 174 [similar to MPC, opposite Martin] o D was taken to a hospital; when doctor realized he was drunk, told D to leave o Police called when D was found in hallway slumped on a chair, took D to their police car, charged him with having been found drunk on a highway (where car was parked) o D tried using involuntary presence as a defense but court upheld conviction b/c they felt ―found drunk‖=perceived to be drunk, didn’t care that his presence was involuntary o Only one aspect has to be voluntary People v. Newton (CA DC of App 1970) 175 o D found guilty of voluntary manslaughter, appeals o Police officer pulled D over, a struggle ensued—D was shot in stomach then shot police officer o D testified that he had no gun and didn’t remember anything after he was shot—was unconscious; MD’s testimony agreed o When not self-induced, unconsciousness is a complete defense to criminal homicide—was prejudicial error to not instruct the jury on this o Holding: (1) if D was unconscious, he is not liable (2) D presented sufficient evidence to show unconsciousness Sleepwalking—Mrs. Cogdon 178 o Murdered her daughter while sleepwalking, experts testified on her behalf and P didn’t argue, jury believed her story, act was not regarded as her own→she was acquitted o Possible that she could have known (like Decina) from the night before and should have locked her door or tied herself up, maybe a different view People v. Decina 179 o D had epileptic seizure while driving, killed 4 people o Knew of his epilepsy and chose to drive alone; disregard of consequences—this makes him negligently culpable—he was convicted of criminal negligence in the operation of a vehicle resulting in death o It is not a voluntary act if a disabling attack occurs without any prior knowledge or warning, but it is if the condition is known MPC § 2.01(1) o ―A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable‖ o involuntary acts: reflex/convulsion; bodily movement during unconsciousness or sleep; conduct during hypnosis or resulting from hypnotic suggestion; a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual
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o Omissions Notes o Omissions also require voluntary choice o Omissions can only be a crime if there is a legal duty and a capacity to act (MPC [2.01(3)] and CL agree) o Omission liability Simple omission liability: law creates a duty to act, if you don’t act, you are liable (not registering a gun) Complex omission liability: commission by omission (failing to prevent harm) o Good Samaritanism In Europe and Russia, failing to be a Good Samaritan is a criminal offense Anglo-American tradition—law doesn’t determine whether one shall be a Good Samaritan, it is left to the individual’s conscience We like to stay away from each other, don’t want to put people in danger, infringe on liberties, or legislate virtue RI, VT, and WI have Good Samaritan statutes (see 189) Pope v. State (MD Ct App 1979) 183 o D found guilty of child abuse and misprision of felony under common law Child abuse statute (183) Misprision of felony—old common law crime—not a chargeable offense in MD o Facts: D took Norris and her child into her home for the weekend, Norris went into a religious frenzy and beat the infant to death. D didn’t do anything to stop Norris or save the child o To be convicted of child abuse, evidence has to be legally sufficient to establish that the person Was responsible for the supervision of a minor child AND Caused abuse to the child in the form of physical injury sustained by child as a result of cruel or inhumane treatment or malicious act by such person o Pope’s conduct qualified as cruel and inhumane treatment o Pope would have to be responsible for the supervision of the child to be convicted of the felony o While Pope had a moral obligation to help the child, she had no legal obligation to do so—the mother was always present Court doesn’t want to set precedent that would cause people to fear being Good Samaritans or cause people to interfere with parent-child relationship o Pope’s conviction was reversed People v. Heitzman (Cal 1994) 190 o D charged with neglecting an elder—statute imposed felony liability upon ―any person . . . who willfully permits . . . any elder or dependent adult . . . to suffer . . . unjustifiable pain or mental suffering‖ o D was a daughter whose father was being neglected by her siblings; court held that she didn’t have a legal duty (didn’t live with him)—reading the statute as it is implies ANYONE would be liable (unconstitutional—people need to be on notice) o Conviction overturned Jones v. United States (DC C 1962) 190 o D found guilty of involuntary manslaughter for failing to care for infant who starved to death o 4 situations where one has a legal duty statute status relationship (parent-child, husband-wife, etc.) contractual duty if one voluntarily assumes the care of another and secludes the helpless person so others cannot provide aid [5th not in case—creating peril] o Issue: whether D had a legal duty to infant (omission→legal duty is element) o Conflicting evidence as to whether mother was living with D or paying D to care for children—issue of fact [jury question] o Jury instructions did not impart the necessity of finding a legal duty—case reversed and remanded Commonwealth v. Cardwell (PA 1986) 192 o D=Julia, Alicia’s mother and Clyde’s wife o C sexually abused A for 4 years before A told Julia; 10 months after Julia found out, A ran away and Julia was convicted of child abuse for failing to protect her o Court felt that J didn’t do enough [she wrote letters to C, applied for A to transfer schools, and tried moving into her mother’s house (which burned down); 4 months after fire, A ran away] only one aspect has to be voluntary (if crime has to do with being drunk and D voluntarily drunk, still liable)
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The person charged with the duty of care is required to take steps that are reasonably calculated to achieve success (but what is reasonable?) o Court did not feel that J’s attempts were enough—convicted of child abuse o Was this fair? Judges assume that a maternal instinct to protect her children overcomes any barriers to escape, but to what extent should a mother be forced to risk her own life in order to avoid criminal liability for injuries inflicted intentionally by her spouse/boyfriend? MPC 2.01(3): Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: (a) the omission is expressly made sufficient by the law defining the offense; or (b) a duty to perform the omitted act is otherwise imposed by law o
MENS REA (mental state) Basic Conceptions Notes o o o o Mens rea in its special sense—the mental state required by the definition of the offense We are concerned with what the D intended, knew, or should have known when he acted Legislature is often ambiguous, courts need to impart mens rea requirement MPC 1.13(9) defines elements; 1.13(10) tells us when these elements become material elements— (1) when stated in statute; (2) when they become justification or excuse (not jurisdictional/venue) o Material elements of a crime: conduct (voluntary acts, required), attendant circumstances (any other aspect that the statute specifies that must be in place before there can be a conviction, not required), result (not required) Specific intent is an additional requirement P needs to prove—doesn’t speak to mens rea o P must show that each material element exists as well as the appropriate level of culpability o Culpability levels: PURPOSELY, KNOWINGLY, RECKLESSLY, NEGLIGENTLY, [S/L] o MPC application to statutes doesn’t always get results legislature intended Regina v. Cunningham (1957) 204 o D convicted of violating § 23; D stole a gas meter (convicted of larceny, not in dispute) without turning off gas—gas seeped through basement walls and reached his duplex neighbor o § 23 material elements Conduct: administering a poison or noxious thing AC: to a person Result: endangering life or to inflict grievous bodily harm o TC imparted strict liability (malicious=wicked) o AC defines maliciously as either intending harm (MPC purposely) or foreseeing risk but doing it anyway (MPC recklessly) o Jury was wrongly instructed—they should have decided whether D foresaw that the removal of the gas meter might cause injury to someone but removed it anyway o Conviction quashed Regina v. Faulkner (1877) 206 o D sailor on a ship, went to steal rum, lit a match to see, rum caught on fire; ship was destroyed (No intent to burn ship) o D convicted of violating the Malicious Damage Act for maliciously setting fire to ship o P proposes that if a person is engaged in committing a felony or has committed a felony and accidentally does some collateral act, which if done willfully would be another felony, he is guilty of the latter felony (boot-strapping) o Court rejects this proposition—too broad; conviction quashed Santillanes v. New Mexico (1993) 211 o D cut 7 year old nephew’s neck during an altercation and was convicted of child abuse under a statute defining child abuse as including ―negligently . . . causing . . . a child to be . . . placed in a situation that may endanger the child’s life or health . . .‖ o Jury was instructed with a standard definition of negligence (only sufficient for civil liability) rather than the proposed definition based on MPC’s definition of negligence (criminal liability)—S Ct found erroneous—statute requires criminal negligence MPC 2.02—General Requirements of Culpability (1041) o A person is not guilty of an offense unless he acted with the culpability required by law for each material element of the offense (no more boot-strapping—Faulkner and Cunningham were the beginning of the view that this was not good practice) o Subjective standard asks D’s state of mind; Objective standard asks what a reasonable person would think (but what is reasonable?—subjectively determined)
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PURPOSE (Subjective) Conduct Actor’s conscious object to engage of conduct of that nature Actor’s aware that conduct is of that nature Actor consciously disregards a substantial and unjustifiable risk; gross deviation from the standard of conduct a law-abiding person would observe in the actor’s situation Gross deviation from the standard of care that a reasonable person would observe in the actor’s situation Attendant Circumstance Actor is aware of the existence of such circumstances or believes or hopes that they exist Actor is aware that such circumstances exist Actor consciously disregards a substantial and unjustifiable risk that the circumstances exist Result Actor’s conscious object to cause such a result
KNOWLEDGE (Subjective) RECKLESS (Subjective—D knows of risk and Objective— Risk is substantial and unjustifiable)
Actor is aware that it is practically certain that his conduct will cause such a result Actor consciously disregards a substantial and unjustifiable risk that the result will occur
NEGLIGENCE (Objective—what would a reasonable person think?—assumes D didn’t think) o o o o o Application
Should be aware of a substantial and unjustifiable risk that the material element exists
Should be aware of a substantial and unjustifiable risk of the result
If no mens rea level is specified within the statue, assume reckless (unless S/L crime) If a mens rea level is mentioned for one element, it applies to all elements Negligence easiest to prove, anything above proves it (follows all the way up) [2.02(7)] Awareness of a high probability=knowledge (unless D doesn’t actually believe it exists) Willfully=knowingly
Notes o Willful blindness instructions often used to help P meet requirements of knowledge (drugs, theft, securities fraud, pollution)—mostly regulatory offenses o In order to prevent juries from convicting on basis of negligence, some courts require that in order to give willful blindness (ostrich) instructions, evidence must establish that (1) D was subjectively aware of a high probability of illegal conduct and (2) D purposefully contrived to avoid learning of the illegal conduct United States v. Jewell (9th C 1976) 220 o D convicted of knowingly transporting marijuana from Mexico to US o D appeals: didn’t have positive knowledge of the presence of pot even though he knew of secret compartment o D wanted jury instructed that he absolutely had to know it was there (AC thinks this would allow deliberate ignorance to be a defense to Drug Control Act) o Court told jury that gov’t must prove beyond reasonable doubt that D knowingly brought pot into country and knowingly possessed it o Court also gave jury an instruction that didn’t require knowledge, only the awareness of a high probability that the fact existed [reckless] o Knowingly requires subjective knowledge; this instruction possibly allows for conviction of ignorant people o MPC 2.02(7) states that knowledge is established if a person is aware of a high probability, as long as he doesn’t actually believe it exists o Willful blindness=knowledge; conviction upheld o Ostrich instructions=Jewell instructions o Dissent 3 defects in jury instructions in light of MPC doesn’t mention requirement that Jewell be aware of high probability of substance being in car doesn’t alert jury that Jewell can’t be convicted if he actually believed there were no drugs in car (subjective belief is determinative factor) states that Jewell could be convicted if found ignorant—this is unacceptable b/c it imparts negligence when statute requires knowledge no reason for punishing the truly ignorant (no deterrence, no retribution)
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HYPO: child could be convicted for not looking in a gift wrapped package by the jury instruction given (conscious disregard for contents); HOWEVER, child is not behaving recklessly b/c she is not aware of any risk United States v. Giovannetti (7th C 1990) 223 o D (Janis) was convicted of aiding and abetting a gambling operation by renting his house to some gamblers, ―knowing‖ that the lessees would use it as a wireroom o No evidence of Janis’s knowledge, but he was a gambler and he knew they were gamblers as well, and he made no inquiries about their intended use of the house o Court reversed, error to give an ostrich instruction under these circumstances Ostrich instruction is designed for cases in which there is evidence D knows or suspects he is involved in shady dealings, and takes steps to make sure that he doesn’t acquire knowledge of the nature and extent of those dealings D needs to deliberately avoid acquiring knowledge, not just be careless D didn’t act to avoid learning the truth o Under MPC 2.02(7), Janis would be acquitted—wasn’t subjectively aware of a high probability; many reasons to rent a house (unlike Jewell—not many reasons for secret compartment) Can’t be a jury conviction if someone can prove to the jury that they didn’t think to look; Giovannetti makes it so that if a D is subjectively aware of a high probability it is as good as knowing, and not following up is purposefully contriving
MISTAKE Mistake of Fact When does mistake provide a defense to a crime? o If the conduct in question would not have constituted a crime had the facts been as D thought them to be, mistake is a defense Why would mistake of fact provide a defense to a crime? o The lack of knowledge or mistaken knowledge negatives the mens rea required for an element of the crime; e.g. speeding w/ a broken speedometer, taking someone’s property when you think it is yours MPC approach: MPC 2.04 (1043) o Ignorance/mistake as to a matter of fact is a defense if: The ignorance/mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense OR The law provides that the state of mind established by mistake constitutes a defense o Defense isn’t available if D would be guilty of another offense had the situation been as he supposed; however, mistake shall reduce grade and degree of the offense of which he may be convicted to those of which he would be guilty had the situation been as he supposed HYPO: hunting out of season, shoot a person thinking it’s a deer—can you be charged with murder? NO, only hunting out of season—different crime, not one of lesser degree (same for CL unless felony murder) o MPC feels reasonableness of mistake shouldn’t be considered when mens rea is knowingly or purposely b/c they only involve subjective knowledge o Some states depart from MPC provision—require that there is a reasonable explanation or excuse for the mistake Bramwell’s “Moral Wrong” approach o Regina v. Prince (1875) 226 D was convicted of taking an unmarried girl under 16 yrs of age out of the possession and against the will of her father (anyone could commit this crime) Mistake: girl told D she was 18 and he believed her; jury believed that his mistake was honest and reasonable but he was convicted anyway Ct upholds conviction It is wrong to take a girl from her father w/o permission—D was on notice that he could be committing a crime, knew he was committing a moral wrong If D thought he had consent but was wrong, then he would have no mens rea and couldn’t be convicted Bootstrapping mens rea of moral wrong to the crime (similar to Cunningham, but in that case, larceny was actually a crime) Dissent: Brett’s “lesser wrong” theory If the facts had been as D thought them to be, he wouldn’t have committed a crime; no conviction for crime in England in the absence of a criminal mind or mens rea If D knowingly does an act that would be a lesser crime and ended up committing a greater crime, then mistake wouldn’t matter, but when he thinks he isn’t committing a crime at all then his mistake should acquit him
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Bootstrapping mens rea of lesser crime to crime actually committed (Cunningham) o Still used in robbery gradings What is wrong with the moral wrong theory? o Where do we get the moral standard? The Court? o Legislature doesn’t always have moral intentions when writing laws—court is ignoring attendant circumstances by adding in morals—AC that legislature thought important enough to put in the law o Moral duties are not criminal duties Possible justification for Bramwell’s decision: 2 part-crime: act itself is criminal, legislature determines when to prosecute (like BAC in drunk driving)—age may have been arbitrary when chosen but is now the standard— D should have known better regardless of girl’s age What is wrong with the lesser crime theory? o Punishment doesn’t match culpability level o Same theory as FM Lesser crime theory is applied in drug-sentencing cases: US v. Valencia-Gonzales (5th C 1999) 230 o D convicted of possessing a controlled substance; sentenced for heroine even though gov’t stipulated he thought he was carrying coke (lesser sentence) Blackburn’s problem with requiring mens rea as to age in Prince case: if a girl is less than 10, having sex with her is a felony; if a girl is b/t 10 and 12, misdemeanor. D thinks girl is 11 and has sex with her—no mens rea for the felony and no AC for the misdemeanor—can’t be charged with any crime o MPC would say guilty of misdemeanor o Brett would say guilty of felony White v. State (Ohio App 1933) 227 o D convicted of violated a statute that made it illegal to leave a pregnant woman with the intent to abandon her o D didn’t know wife was pregnant but conviction was affirmed—it is a violation of his civil duty to abandon his wife, he is guilty of wrongdoing—he who abandons his wife takes the chance that she is pregnant Mistake of age is usually not a defense to statutory rape (but is in CA); MPC imposes S/L when the critical age is 10 but otherwise allows mistake of fact People v. Olsen (Cal 1984) 230 o D’s conviction of lewd or lascivious conduct with a child under the age of 14 (§288) upheld o V told Ds she was over 16 and conceded that she looked over 16 but court rejected D’s argument that a good faith belief as to age of V was a defense o Factual dispute over whether Ds broke into trailer where V was sleeping or she let them in o CA held that mistake of age is a defense to statutory rape in People v. Hernandez but an app court didn’t apply the reasoning in People v. Lopez where the crime was supplying pot to a minor—b/c supplying pot is a crime regardless of age o Public policy to protect children of tender years, which is why §288 exists o Legislature also enacted a statute that grants probation to those convicted of §288 who honestly and reasonably believed V was over 14—if they wanted mistake of age to be a complete defense, they wouldn’t have the probation statute o Lesser harm—if she was 17, statutory rape (but still no evidence of sex) o Different penalties depending on age (§288 v. statutory rape)—supports public policy argument o Need a bright line, S/L rule b/c it is too hard to judge culpability—how do you know how old someone really is? o Dissent No proof of sexual intercourse—D wouldn’t have even committed a crime if the facts were as he believed them to be S/L crimes are only regulatory crimes—S/L shouldn’t be imputed to any other types of crime Punishing D is cruel and unusual punishment—conviction for crimes with serious sanctions and stigma should be reserved for the blameworthy Society’s response when mistake of fact negates mens rea but crime is so heinous it needs to be punished anyway—but what happens to deterrence and retribution w/o mens rea? Because nonmaterial elements (e.g. jurisdictional) have no bearing on culpability, no need to consider mistakes as to these elements [see MPC 1.13(10)] o State jurisdictional requirements based on location of crime; fed requirements on method used to commit crime (e.g. mail fraud) or identity of victim o Controversy: whether an element serving jurisdictional purposes also serves purposes that require it to be treated as a material element US v. Feola (235)—Ds attempted to rob undercover fed drug agents posing as drug buyers, charged with assaulting federal officers. S Ct held that the element was jurisdictional only—all the statute required was intent to assault—felt that this reading best effectuated Congress’s purpose of protecting officers
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Stewart’s dissent—states that provide an aggravated penalty for assault (felony instead of misdemeanor) of state officers charge Ds with general assault when they don’t know they are assaulting state officers—this statute is the mirror image so the same should be done in this case Intent of statute is to deter assault on officers—will people be deterred when they don’t know they are assaulting an officer? We can justify this by saying any drug buyer is potentially an undercover cop
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Strict Liability Crime where at least one element lacks mens rea (not whole crime) Public Welfare Offenses: (1) illegal sales of intoxicating liquor; (2) sales of impure or adulterated food or drugs; (3) sales of misbranded articles; (4) violations of antinarcotic acts; (5) criminal nuisances; (6) violations of traffic regulations; (7) violations of motor vehicle laws; (8) violations of general regulations passed for public safety, heath, or well-being o Features Recently enacted statutory crimes to protect public welfare Low penalties Minimal stigma D in best position to prevent harm—extra reasonable care Hard to prove knowledge o Justification Deterrence of carelessness (to prevent harm to society) Correcting inefficiencies of legal system (too much litigation, shouldn’t have to argue culpability for every case Balance of harms—assume duty Easy to avoid punishment—you don’t have to be in business to begin with (defense) But extra careful people won’t want to be in business at all (and these are the people we would want in the business)—see comments below Minimal stigma, low penalties (defenses) We expect people to take an extra level of care—no worries that we’ll catch innocent people who are exerting extra care (but could catch people exerting reasonable care)—feature of S/L Some people argue that jail is too severe—doesn’t match culpability; why even have criminal charges when we have civil liability? o Limitation of torts system: no harm, no damagesneed to stop harm before injury Burden shifting (letting D show he didn’t know) wouldn’t work in criminal system b/c of D’s rights (innocent till proven guilty, P has B/P) Prosecutors still have discretion over who to charge (may not charge people who really were trying/didn’t know) but this may leave too much discretion to Ps o Justification: P knows D is guilty, easy to prove (no mens rea) rather than D being guilty and it being hard to prove US v. Balint (US 1922) 236 o Ds indicted for selling drugs w/o the order form required by the Narcotic Act of 1914 o Ds claimed they didn’t know they were selling prohibited drugs o S Ct upheld the conviction o Mistake cannot be used in defense to regulatory crimes where the emphasis of the statute is to better society rather than punishment of crimes o Act’s purpose is to require every person dealing drugs to ascertain at his peril whether that which he sells comes w/in inhibition of the statute, and if he sells the drug in ignorance of its character, to penalize him o Evil of exposing innocent purchasers to danger from the drug should be avoided more than possible injustice to an innocent seller o Mentions: seller in best position to find out the fact, difficulty in proof of knowledge US v. Dotterweich (US 1943) 236 o D president of a drug corporation that bought drugs from manufacturers, repackaged them, and shipped them under its own labels o Twice, manufacturers sent mislabeled productsproducts were repackaged and shipped with the wrong labels o D + corporation charged with shipping misbranded products in interstate commerce—violation of a Federal Act; jury acquitted corporation but convicted D o S Ct affirmed conviction—no mens rea required with respect to whether those charged knew or should have known the shipment was mislabeled
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Congress preferred to place burden on those who at least have the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce rather than to throw the hazard on the innocent, helpless public Morissette v. US (US 1952) 237 o D (junk dealer) took spent bomb casings from an Air Force practice bombing range and sold them at a junk market o Convicted of violating §641 (it is a crime to knowingly convert government property) Conduct: convert; AC: gov’t property Knowingly applies to all elements (SC) o D knew what he took and sold were AF bomb casings; defense is that he honestly believed they had been abandoned and he wasn’t violating anyone’s rights o TC, AC found that the only question was whether or not he intended to take property o SC reversed—D must be proven to have had knowledge of the facts that made the conversion wrongful Crimes come from evil mind and evil hand, when they were codified, legislature assumed intent and didn’t include it Regulatory crimes, such as those in Balint, don’t depend on a mental element—new crimes that are products of the Industrial Revolution—regulations that heighten the duties of those in control of industries that affect public health, safety or welfare Violations of these regulations create the danger or probablilty of injury; often no injury occurs—injury is same regardless of the intent, so no intent is needed D is usually in a position to prevent a violation w/ no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed D’s responsibilities Ct refuses to expand the doctrine of crimes w/o intent to this one Intent has consistently been required in larceny-type offenses §641’s omission of any mention of intent will not be construed as eliminating that element— crime already defined in CL w/ intent, Congress doesn’t need to include intent (new, regulatory crimes have no CL basis) Hart feels that this is an issue of moral wrong—wants to get rid of mens rea requirement for traditional crimes (on notice for moral wrongs) but have one for public welfare offenses Staples v. US (US 1994) 241 o D charged with violating National Firearms Act (illegal to possess an unregistered firearm; firearm=automatic weapon) o D thought he owned a rifle, didn’t know it was automatic (someone had altered the weapon to make it automatic); does the statute require proof that D knew his weapon was a firearm? o P says the Act is a public welfare offense—should be S/L; D knew he was dealing with a dangerous device, Act puts all gun owners on notice that they must determine at their hazard whether their weapons come w/in the scope of the act (Balint) US v. Freed—D knew he had grenades, S Ct held that he didn’t need to know they fell under act—possession wasn’t innocent of itself—PWO o S Ct refuses to give this argument weight—gun ownership in itself is legal and widespread in the US— Ct avoids construing S/L where doing so would criminalize a broad range of apparently innocent conduct o Congress didn’t intend to punish law-abiding, well-intentioned citizens; punishing a violation as a felony is incompatible w/ theory of PWOs Note: didn’t declare unconstitutional to punish a S/L violation as a felony—which is what Canada has done US v. X-Citement Video (US 1994) 243—D was convicted for violating the Protection of Children Against Sexual Exploitation Act—S Ct required proof that D knew person depicted by a minor—mens rea required for every statutory element that criminalizes otherwise innocent conduct State v. Baker (KS App Ct 1977) 247 o D appealing speeding conviction (77 in 55), claiming his broken cruise control was to blame (evidence had been suppressed at trial) o Statute is S/L based on KS’s S/L statute (providing S/L for misdemeanors with appropriate legislative intent to create S/L)—D agrees o D arguing that broken cruise control doesn’t speak to mental state, but to whether act was voluntary—speeding wasn’t voluntary, cruise control made him do it o D chose to drove, chose to activate cruise control, he had/should have had full control over the device (different from brakes/sticky throttle, which are essential components of vehicle operation rather than devices which driver has voluntarily delegated control) State v. Miller (OR 1990) 249—DWI conviction upheld where D wasn’t allowed to present evidence that his drink was spiked w/o his knowledge—Ct held that statute created S/L with respect to presence of alcohol in D’s body
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When D claims involuntary act for S/L offense, P pushes mens rea, D pushes act itself Should the absence of a voluntary act be a defense to S/L if lack of mens rea isn’t? Canada’s view of S/L: Regina v. City of Sault Ste. Marie 249 o Justifications of S/L Protection of public interests requires a high standard of care on persons who follow certain pursuits and these people are more likely to maintain those standards if they know that ignorance/mistake won’t excuse them Administrative efficiency: too much time + money to have to prove mental culpability for the many petty cases; S/L most efficient and effective way of ensuring compliance with minor regulatory legislation; social ends are of such importance that they override possibility of punishing the blameless o Arguments against S/L (stronger) Violates principles of penal liability No evidence that a higher standard of care results from S/L Even if no stigma, time, money, exposure to trial Public interest not enough—public interest is involved in all serious crimes yet we require mens rea for those o Not a choice b/t full mens rea and S/L—middle ground available that fulfills public welfare goals but doesn’t punish blameless Assumes D could have avoided offense through exercise of reasonable care D has opportunity to establish that he did exercise such care (has means of proof so gets B/P) o Only offenses that allow for S/L—those which Legislature made it clear that guilt would follow proof of act alone—consider overall regulatory pattern, subject matter of legislation, importance of penalty, precision of language used More recently, Canada has declared S/L unconstitutional—deprivation of liberty not in accordance with precepts of fundamental justice Sweet v. Parsley (House Lords 1968) 251—D (rented a farm house) convicted of violating Dangerous Drugs Act 1965 (if a person is concerned in the management of any premises used for purpose of smoking cannabis, guilty of offense); conviction was reversed b/c too many people at risk for being convicted of serious offense in circumstances where they aren’t to blame—greatest vigilance cannot prevent tenants or their guests from smoking cannabis US v. US District Ct (9th C 1988) 252 (before X-Citement Video case)—prosecution for production of child porn—Ct held that while culpability wasn’t an element of the offense, D had an A/D if he could show that he reasonably couldn’t have learned that the minor was under 18 Comments 253 o Goodhart—When drugs are involved, the maxim of ―it’s better to let 10 guilty men go free than to convict 1 innocent‖ becomes questionable; is it better that 10 young people should be tempted to be addicts than 1 innocent man should be convicted? o Kelman—argument that D can’t help committing a S/L crime depends on a narrow time frame—if a larger time frame is considered, mistake seems unreasonable and could be considered on a negligence standard with same result o Johnson—where S/L is present in traditional crim law (FM/stat rape), it is b/c D’s underlying conduct is deemed wrongful in itself; to use S/L for business regulations is to say that business activity is inherently wrongful—unjustifiable presumption regardless of whether positions of employment were assumed voluntarily o Schulhofer--Those who continue to engage in risky behavior are those who think they are most careful—may not really be the most careful, most careful (who we want) may avoid business. Effect— increasing proportion of the careless increase total harm o MPC—S/L crimes should not be able to be punished by prison/probation—only monetary fines— crime=culpability
Mistake of Law People v. Marrero (NY 1987) 255 [Direct Mistake of Law] o D arrested for unlicensed possession of a firearm; statute exempted peace officers Peace officers include correction officers of any state correctional facility or of any penal correctional institutional o D was a federal corrections officer, thought he fit into exemption; TC dismissed indictment but AC reinstated it—D wasn’t a peace officer w/in meaning of the statute o D appealing conviction—thought his mistaken belief should be a defense o SC upholds conviction—ignorance of the law is no excuse (would only perpetuate ignorance); don’t want to encourage creative readings of statutes o NY law provides that mistaken belief isn’t a defense unless the belief is founded upon an official statement of the law—D tries to argue that this makes his mistake OK
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P says that MPC approach is that this is only a defense if the official statement was later determined to be erroneous, NY should take same approach o Ct agrees with P—NY has same intent as MPC—want to encourage public to read and rely on official statements of the law rather than interpret the law individually, don’t want to give people like D a defense would cause ―exception to swallow the rule‖ o Dissent Our system punishes the blameworthy—those who act innocently with no intent to commit a wrong shouldn’t be punished—but tradition holds Traditionally mistake of law is no excuse made sense b/c most crimes were wrong/evil in nature—today, not so much—we make otherwise lawful conduct criminal—not logical that every man is presumed to know the law Case fits right into NY statute, which was enacted to abolish common-law rule that mistake of law is no excuse, but majority holds that it doesn’t—misconstrues statute to rule out any defense based on mistake of law (subverts legislative purpose and resurrects dead rule) Majority bases reasoning on MPC provision—but if NY wanted that provision, they would’ve adopted it in its entirety rather than w/o the pertinent clause MPC [2.04(3) 1043] exception could be read in 2 ways—court read it as applying to statute/statement that was later revoked, but could also mean interpretation that was later determined to be erroneous (such as in this case—court determined it to be erroneous) Kahan (260) feels that defenses of mistake of law should be allowed when the actors deserve to be excused (based on honest mistake rather than searching for loopholes) Justification of direct mistake—don’t want too many people using it, encourages ignorance; doesn’t negative mens rea for a material element Exceptions to “Mistake of law is no excuse” o Collateral mistakes of law o Statutory (NY statute in Marrero, MPC 2.04(3)) o When there is a mens rea requirement regarding existence of the statute o Reasonable reliance o When due process requires knowledge of a legal duty Collateral Mistake of Law o Failure of proof defense, not an affirmative defense o Regina v. Smith (1974) 261 D damaged wall panels and floor boards (that he had installed) while retrieving stereo wiring; charged with violating Criminal Damage Act (―A person who w/o lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property . . . shall be guilty of an offense‖) D’s defense was that the floor/walls belonged to him—TC’s jury instruction was that his belief that he had the right to do what he did was not a lawful excuse w/in meaning of act b/c in law he had no right to do what he did AC reversed—no offense is committed if a person mistakenly (even if unjustifiable) believes property is his own—―belonging to another‖ is material element—didn’t know irreversible improvements are property of L not T o MPC 2.04(1) [1043]—mistake/ignorance of law is a defense if it negatives mens rea required to establish material element o MPC 2.02(9) [1042]—knowledge/recklessness/negligence as to whether conduct constitutes an offense OR as to the existence, meaning, or application of the law determining the elements of an offense is an element of such offense, unless the definition of offense/MPC so provides Law involved isn’t law defining defense, is some other legal rule that characterizes the AC material to offense; e.g. claim of right defense for theft MPC and CL apply the principle that mistake of law is no excuse with respect to law that sets forth the definition of the crime in question o State v. Woods 262—D went with Shuffelt to NV where S obtained divorce decree and married Woods (1st wife in VT—divorce not valid) and when she returned to VT was prosecuted under the Blanket Act for having sex with a married man. No mens rea listed for BA but not PWO so reckless—she can’t be reckless if she thought he was her husband even if divorce was invalid (or if he had acted single— mistake of fact) o Justification of Collateral Mistake of Law—similar to mistake of fact—lack of knowledge negates the mens rea for one of the material elements of the crime—occurs when people are trying to follow the law, not when they are ignorant of it—less risk Mens Rea requirement regarding knowledge of the statute o Defense: when statute has language that requires knowledge (e.g. ―anyone who knowingly violates this provision‖)—then lack of knowledge defeats the mens rea required for an element of the statute (MPC 2.02(9))—failure of proof o
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Cheek v. US (US 1991) 263 D convicted of failing to file tax return—violation of §7201—any person is guilty of a felony ―who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment there of‖ TC told jury that an honest but unreasonable belief isn’t defense—doesn’t negate willfulness; AC affirmed and SC reversed Congress has softened impact of CL presumption that ―ignorance of law is no excuse‖ by making specific intent to violate the law of certain tax offenses ―willfully‖ presents an exception to the traditional rule; have it b/c of complexity of tax laws— don’t want to make criminals out of confused Willfulness=voluntary, intentional violation of a known legal duty Willfulness requires P to prove that law imposed a duty on D, D knew of duty, and D voluntarily and intentionally violated that duty If D didn’t know of duty, doesn’t matter whether belief was objectively reasonable—if jury believes him, then an element of the crime wasn’t proved However, the more unreasonable the belief, the less likely a jury is to believe D D’s claim that tax laws were unconstitutional as applied to him proves that he has knowledge of the legal duty—this eventually caused him to be convicted, as it negated his argument that he didn’t know his duty o Confusion when statutes require action to be committed knowingly/willfully US v. International Minerals + Chemical Corp (US 1971) 266 Statute made it a crime for a person to ―knowingly violate‖ a regulation—Ct held that it was sufficient to prove that the actions it knowingly committed violated those regulations Liparota v. US (US 1985) 266 Ct interpreted a food stamp fraud statute—―whoever knowingly uses, transfers, acquired, alters, or possesses coupons or authorization cards in any manner not authorized is subject to fine + imprisonment‖ Ct held that P must prove that D knew of the existence and meaning of the regulation his actions violated—similar to tax laws in complexity Ct felt that to hold otherwise would criminalize a broad range of innocent conduct (e.g. shopping at a store that charged more for stamp purchases—how would D know?)— opposite of ―moral wrong‖ Ratzlaf v. US (US 1994) 267 D tried to pay off a 100K gambling debt with cash, was told it would be reported— went for a cashier’s check—structured transaction so that none of it would be reported S Ct held that P had to prove that D had knowledge that the structuring was illegal b/c statute said ―a person willfully violating‖—felt to hold otherwise would criminalize innocent behavior b/c all kinds of structuring was legal Congress then amended statute to undo this interpretation Bryan v. US (US 1998) 267 D convicted of violating the Firearms Owners’ Protection Act (crime to ―willfully‖ deal in firearms w/o fed license) w/o proof that he knew of the statute that made it criminal Ct held that D has to be shown to act w/ knowledge his conduct was unlawful but not that he knew of the existence of the statute Upheld conviction—ample knowledge he knew he was acting unlawfully (shaving off serial #s, selling to drug dealers on the street) No danger of convicting innocent—was acting with an evil meaning mind—he knew his conduct was unlawful Reasonable Reliance o US v. Albertini (9th C 1987) 268 D participated in a peace demonstration on a naval base in defiance of a bar order (letter prohibiting him from being on base)—convicted under §1832 but the 9th C reversed the conviction on 1st amendment grounds D then participated in more demonstrations (after consulting w/ counsel) and was prosecuted again—around same time gov’t petitioned for cert (which wasn’t granted until after 2nd group of demonstrations) S Ct eventually reversed 9th C’s decision in Albertini I—1st amendment rights didn’t preclude convicting him for defying order He was then tried for the second group of demonstrations and convicted D appealed—due process precluded retroactive application of the S Ct’s decision reversing Albertini I (which had upheld legality of his conduct) 9th C reversed conviction for 2nd group of demonstrations—D was acting w/in his adjudicated legal rights and due process right to rely on 9th C’s judgment o
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US Constitution prohibits ex facto enactments (laws that make an action done before law— innocent at time done—criminal and punish it) which applies to the Legislature but the principle is fundamental and can be enforced here Ct’s decision is on legality of conduct when relying on a court decision before S Ct granted cert—once cert granted, D would probably be on notice, but ct didn’t discuss this issue To hold otherwise would sanction government entrapment o If the decision was based on procedural issues, D should be on notice that his conduct could be illegal—no defense of reasonable reliance o Hopkins v. State 270—relying on counsel’s advice can’t be a reasonable reliance defense—lawyers aren’t charged with making official statements of the law (true even for gov’t lawyers) o MPC started defense of reasonable reliance--§2.04(3)—has been widely accepted Raley v. Ohio 271—S Ct held it to be a violation of due process to convict a D for conduct that gov’t representatives had stated was lawful—State said a privilege was available—can’t prosecute when D uses it Due Process Requires Knowledge of Legal Duty o Lambert v. California (US 1957) D charged with violating LA Municipal ordinance that required any convicted person to register with the Chief of Police when she was arrested on suspicion of another offense; found guilty by jury—fine + probation Ct assumes D had no actual knowledge of the requirement—issue is whether such an ordinance violates due process when D has no knowledge and no showing is made as to probability of knowledge Statute has no element of willfulness of its terms, CA doesn’t read one into it (and doesn’t have to)—but b/c this is an omission, consisting of wholly passive behavior, there is no notice given to D Due Process limits maxim ―ignorance of the law is no excuse‖ [and runs just as deep in jurisprudence]—notice is part of due process—violation of the statute is unaccompanied by any activity whatsoever (unlike business regulations) and there are no circumstances that would move one to inquire as to the necessity of registration Once D was informed of her duty, she was not given any opportunity to comply with law and avoid its penalty even though her default was innocent Actual knowledge of duty or proof of probability of knowledge of duty and subsequent failure to comply are necessary before a conviction can stand Dissent No difference b/t D’s violation and Balint’s—Ct draws a line b/t acts and omissions that isn’t based on the constitution Decision will be an isolated deviation from precedent o Dissent was correct—decision was isolated and wasn’t used as precedent But still can consider whether an omission requires notice to be enforceable (also consider whether mistake will be accepted as a defense) o Considerations when omission requires notice to be enforceable (CL) Conduct is wholly passive D wasn’t on notice Heavy penalty Statute didn’t serve a state interest o Mistake of law is limited in most aspects—exception is omission—can’t be reckless if you don’t know of legal duty (no subj knowledge of risk) o Falls under MPC 2.04(1)
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Cultural Defense Some cultural evidence can fit into the traditional doctrines—affects the reasonable D in D’s situation, mistake, insanity, failure of proof (mens rea)—and can also be important during charging + sentencing phases when P and judge can exercise discretion, but should there be a statutorily granted cultural A/D for purposes of equity? o Note (HLR)—discretion is often used in a discriminatory manner so it isn’t fair for Ds to have to rely on that for their cultural factors o Sing—argues for a synthesized provocation/cultural defense—would advance 2 desirable ens consistent w/ broader goals of liberal society and criminal law—(1) achievement of individualized justice for D; (2) a commitment to cultural pluralism o Maguigan Judiciary’s narrow demographics allow for pluralistic ignorance—race, gender, class intersect in ways judges aren’t equipped to understand—judges more likely to uphold prejudices of the race they represent, especially when given the discretion to make value judgments Social framework evidence often allows males to be acquitted for violence against women and children—would formal recognition of a cultural defense contravene international human rights norms by allowing a statutorily provided defense to domestic violence? o Coleman—women and children are denied protection of criminal law when cultural evidence is used b/c their assailants go free—while cultural evidence advances goals of multiculturalism + individualized justice, it defeats the goal of expanding legal protection for least powerful Americans o Volpp doesn’t agree w/ Sams (cultural defense strips law of its deterrent function, unfair to others who can’t use it; rejecting C/D encourages assimilation process; law should rely on objectivity) b/c it encourages the current power dynamic against feminist argument b/c it only advances Western feminism Wu case—women whose actions don’t fit into the cultural stereotype court advances won’t get C/D; women who fit into stereotypes judge/jury finds distasteful won’t be treated leniently in either case A formalized C/D shouldn’t be advocated b/c it reduces inquiry to D’s identity rather than behavior—BWS only available to battered white women, shows drawbacks Crimes o Rex v. Esop (1836)—sailor (docked in London) convicted of sodomy even though it wasn’t a crime in his native land of Bagdad o US v. Whaley (1888)—Ds were American Indians appointed by a tribal council to kill the doctor, were allowed to enter a lesser plea b/c court found no malice o Hmongs punished for butchering pigs in their backyards b/c it disturbs neighbors o Somalis punished for khat o People v. Wu (Cal 1991)—see Volpp article and packet—conviction reversed + remanded to permit introduction of cultural evidence introduced (Chinese woman who killed her son and attempted to kill herself b/c of the abuse her son was suffering) o Bui v. State (Al 1997)—Vietnamese D tried killing himself after killing his 3 kids to keep them away from their mother b/c she was having an affair; used cultural evidence to show (1) provocation, (2) insanity; ct found that these defenses had a core similarity; D appealed—inadequate counsel—denied o Somali woman—FGM o Butler—Native Americans killing an intruder o Kimura—parent-child suicide—trying to kill everyone out of shame for husband’s adultery [Japanese immigrant] o Chen—Chinese-American D killed wife for her adultery o Moua—Hmong marriage by capture (Rape) o Rodriguez—Puerto Rican man who doesn’t back down b/c of his culture Issues o Who sets the standard for cultural defense? How do we know the D subscribed to it? o How does the jury know what is reasonable for another culture? o Social order v. fairness to the individual o Multicultural values v. feminist values
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HOMICIDE Homicide is the killing of a human being; crimes are graded on basis of culpability levels
Murder One What makes a homicide Murder One? o Willful, deliberate, and premeditated o Intent to Kill (intent to do serious bodily harm) o Felony Murder (enumerated felony) Premeditation o Commonwealth v. Carroll (S Ct PA 1963) 396 D and his wife had a fight that lasted all day b/c he wanted to take a job that she didn’t agree with (Tense relationship, psycho wife—child abuser) Wife rolled over, went to sleep; D shot her in the head Ct held that the murder was WDP—D remembered gun, deliberately got it, and deliberately shot his sleeping wife in head (5 minutes after the argument ended) ―no time is too short for a wicked man to frame in his mind the scheme of murder‖ whether the intention to kill and the killing were within a brief space of time or a long space of time is immaterial if the killing was in fact intentional, willful [trying for death], deliberate and premeditated o Young v. State (AL App 1982) 400 D playing cards with friends when argument broke out D fired several shots from his gun; 2 died Convicted of 1st degree murder—no time b/t formation of intent to kill and act of killing is required—premeditation and deliberation may be formed while the killer is pressing the trigger that fired the fatal shot o When decisions like Carroll and Young are made, what happens to 2nd degree murder? [WDP=intent→ no 2nd degree murder; later PA holds that WDP=conscious purpose to bring about death] o Courts are split on the issue of premeditation o State v. Guthrie (S Ct WV 1995) 400 D was at work, victim and his friends were poking fun at D Victim snapped D with a dishtowel several times, one time on the nose D took of his gloves, pulled out a knife, and stabbed victim in neck; told him he should have never hit D in the face D suffered from psychiatric problems, had a nose fixation; testified that he suffered an attack right before the stabbing Bad jury instructions—say the intention to kill can come into existence for the 1st time at the time of the killing—don’t differentiate b/t 1st and 2nd degree murder Ct reverses; gives test for premeditation (From Anderson) [requires time] Planning activity—facts regarding D’s behavior prior to the killing which might indicate a design to take life Motive to kill—facts about D’s prior relationship/behavior with the V Preconceived design—evidence regarding the nature or manner of the killing which indicate a deliberate intention to kill o We want M-1 to capture the worst crimes—but does it? And are the crimes it does catch really the worst kind? (This is why MPC doesn’t have distinction) People v. Anderson (Cal 1968) 403 D home alone with V (D’s girlfriend’s 10 year old daughter) D stabbed V over 60 times (several wounds were post-mortem); her naked and bloody body was found hidden Court found no evidence of premeditation—no motive, manner of killing didn’t exhibit a design to kill, no planning activity State v. Forrest (NC 1987) 404 D shot his hospitalized, terminally ill father in the head D convicted of 1st degree murder—life imprisonment—met tests of premeditation o Mercy killings are always premeditated but they don’t morally offend us as much as impulsive killings like Anderson o Impulsive killings can’t be deterred or reformed; planners can be
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Felony Murder Basic Doctrine o CL: Felony murder is murder 1 (if felony is enumerated in murder statute) or murder 2 (if not enumerated) 1st consider statute Then apply FM o No culpability level for the murder is required—the mens rea for the felony is bootstrapped to the murder charge o Judges and academics hate felony murder but the legislature loves it o England first to adopt felony murder but has since outlawed it; US adopted it from them but still has it When FM was created, punishment for a lot of crimes was death—didn’t really change level of punishment like it does today Michigan S Ct abrogated FM rule—CA reviewed rule but kept it, NM declared FM unconstitutional o Regina v. Serne (1887) 448 D was indicted for murder (D’s son died in a fire that D is alleged to have deliberately set) Court (Stephens) holds that ―instead of saying that any act done with intent to commit a felony and which causes death amounts to murder, it would be reasonable to say that any act known to be dangerous to life and likely in itself to cause death, done for the purpose of committing a felony which causes death, should be murder‖—wants to narrow doctrine of felony murder Ct instructs jury that if D set fire to the house knowing his boys were in there, he is as guilty as if he stabbed them (knowledge of risk imputes intent) D not guilty o The court is trying to restrict the doctrine—it is too severe (S/L, more intent to show DHM [2nd degree] than FM [1st degree])—punishing for murder on a lower level of mens rea than is needed o What are we trying to deter—negligence while committing a felony or the felony itself? o Some people feel that especially risky crimes should be punished more severely rather than having a FM doctrine o FM=Murder 1 when felony is enumerated o People v. Stamp (Cal 1969) 450 D committed a burglary; V had a heart attack as a result (pre-existing heart condition) FM not limited to foreseeable deaths—a felon is S/L for all killings committed during the course of a felony A felon takes his victim as he finds him o D doesn’t need mens rea, but his conduct must be the proximate cause of death King v. Commonwealth (VA 1988) D was transporting pot in a plane, got lost in fog and crashed Ct held that the drug-distribution crime was not the proximate cause of the death— crash was not foreseeable and not made more likely by the cargo being contraband If the plane had been flying low to avoid detection, FM would apply o MPC FM MPC only has FM for robbery, rape, arson, burglary, kidnapping, or felonious escape Creates a presumption of extreme indifference to the value of human life when the actor is committing one of the enumerated felonies—but this is rebuttable o Comments on the felony-murder rule 452 Macaulay—if the punishment for the underlying felony is too light, increase it so that all offenders are equally punished—amount of punishment should be certain Fletcher—FM violates principles of just punishment—punishment should be proportionate to the wrong for which D is personally responsible Tomkovicz—FM is said to deter felonies or careless behavior while committing felonies—but the number of lives saved must be small b/c the number of killings during felonies is relatively low—and Inherent Dangerousness o We don’t want FM to cover too much so we require inherent dangerousness (For felonies that aren’t enumerated) o Looking at the statute in the abstract (good for D): only need to find one exception (Most states don’t take this approach); if there is some way to commit the felony w/o inherent danger, no FM [if we only look to the resulting death, any felony that results in death would be FM; however, this approach effectively gets rid of FM]
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People v. Phillips (Cal 1966) 459 D was a chiropractor; V was an 8 year old child with eye cancer V’s parents were advised to have V’s eye removed but D told them he could cure V, charged $700; V died 6 months later Only felonies that are inherently dangerous can support FM conviction Ct refuses to look at D’s conduct to find inherent danger—only look to the statute itself (Grand theft—stealing more than 500 dollars) Retrial—D convicted of DHM People v. Satchell (Cal 1972) 462 D an ex-felon who shot and killed V with a sawed-off shotgun Felony for an ex-felon to possess such a weapon S Ct held that the felony of possession of a concealable weapon by an ex-felon was not a felony inherently dangerous to human life Ex-felon not so much more dangerous with a concealed weapon than a nonfelon to justify the imputation of malice if death results People v. Henderson (Cal 1977) 463 D’s 2nd degree FM was reversed [felony=false imprisonment by violence, menace, fraud or deceit] b/c neither fraud nor deceit are life endangering Ct reasoned that if Legislature thought violent acts were worse than nonviolent acts, there would be 2 statutes rather than 1 Henderson was applied in People v. Patterson (Cal. 1989) D provided cocaine to V, who died of cocaine intoxication D’s felony: H&S §11352: ―every person who transports, imports, imports into this state, sells, furnishes, administers, or gives away, or offers to [do these acts], or attempts to import into this state or transport‖ a bunch of illegal drugs TC dismissed murder charge b/c §11352 wasn’t inherently dangerous; AC reluctantly affirmed b/c of Henderson—felt they had to look at entire statute; SC held that the offense of furnishing coke was to be looked at in the abstract rather than the entire statute Difference b/t §11352 and felony in Henderson—Henderson’s felony only dealt with a single form of conduct (―primary element‖)--§11352 has no primary element [various offenses were included for convenience]—each offense in statute must be considered separately ―inherently dangerous to human life‖=high probability that it will result in death; case remanded to TC Those who want to narrow range of FM lost on the question of sever/entirety but won on the question of inherent danger—judges who like FM use ―substantial risk‖ standard o Looking at the facts of each case to decide inherent danger (good for P, majority view) People v. Stewart (RI 1995) 464 V (D’s son) died b/c he was neglected (felony=permitting a child to be a habitual sufferer for want of food and proper care) Ct refuses to take the CA approach—prefer ―for the trier of fact to consider the facts and circumstances of the particular case to determine if such felony was inherently dangerous in the manner and the circumstances in which it was committed‖ o Jury must have found that permitting a child to be a habitual sufferer is a felony inherently dangerous to human life in the circumstances of this particular case Upheld the murder conviction Merger Doctrine o The Inherently dangerous doctrine prevents felonies too remote from death from being used for FM; the merger doctrine prevents felonies too close to death from being used o Most homicides can be broken into assault with a deadly weapon + death—gets rid of provocation defense; courts don’t like this approach o When a felony merges, P needs to convict on another theory of homicide—D doesn’t just get off o People v. Smith (Cal 1984) 466: traces evolution of felony-murder doctrine In Ireland, D shot his wife; the court held that FM instruction may not be given when it is based on a felony that is an integral part of the homicide and which the evidence produced by the P shows to be an offense included in fact w/in the offense charged (jury was originally instructed that if it could find D guilty of ADW, it could convict 2nd degree murder) In Wilson, D broke into his wife’s apt with a gun, killed her and a man; court reversed 2nd degree murder conviction for the man’s death (felony=ADW) under Ireland; court also reversed 1st degree murder conviction for the wife’s killing (felony=burglary [entering premises with intent to commit a felony (ADW)]—same reasoning as in Ireland [FM can’t apply to burglary-murder cases where the entry wouldn’t be a felony w/o intent to commit the
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assault which is an integral part of homicide—burglaries with other specific intent still qualify (enumerated)] NY allow burglary based on intent to assault to be used for FM—MPC state, [presumption of extreme indifference can be rebutted—no worries of S/L convictions]—base reasoning on dangerousness but the merger rule isn’t based on dangerousness In Burton, D killed during course of armed robbery; D argued that armed robbery wasn’t independent of the homicide and should merge, but court refines merger test to (1) integral to homicide (2) no independent felonious purpose; FM applied in this case—purpose of getting money diff from killing In Smith, the issue is whether felony child abuse may serve as the underlying felony for 2nd degree FM The conduct which violates the child abuse statute is the same conduct which resulted in death—felony merges; child was beat to death—same assault (Unlike in Shockley where the child died of starvation) D likes merger but also likes to show that felony isn’t inherently dangerous—not compatible—say one felony merges but another in same statute isn’t inherently dangerous People v. Hansen (Cal 1994) 470 (different judges=different politics) D gave a guy money to buy drugs but he didn’t come back with them so D drove by the apt and fired into the building; 13 year old kid was killed D convicted of 2nd degree FM (Felony=discharge of a firearm at an inhabited building) Felony was found to be inherently dangerous, but under Ireland, felony should have merged Court rejected ―integral part of homicide‖ test b/c it would preclude FM for those felonies most likely to result in death; also rejected ―independent purpose‖ b/c it made criminals who acted with independent purpose more liable than those who intended to injure the victim Court adopted ad hoc approach—all inherently dangerous felonies can be predicate felonies as long as It wouldn’t elevate all felonious assaults to murder Or otherwise subvert the legislative intent (But, FM always subverts legislative intent— S/L for homicides when the legislature has grading based on culpability levels) Decision doesn’t logically follow merger rule
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Accomplice Liability o No murder when V is co-felon—V is just as culpable for his own death as D, V assumed risk, felons give up right to retribution, FM is meant for innocents State v. Williams (FL)—FM designed to protect innocent public, must use another theory of homicide to convict for deaths of co-felons (477) o But—US v. Martinez—D and accomplices planned to bomb adult book stores; a bomb exploded en route, killing a co-felon—Ct held that co-felons could be guilty of FM (proximate cause) Posner: lives of criminals are not worthless, deaths shouldn’t be considered non-events for sentencing purposes; deters Ds from using lethal weapons, and from committing any felony where anyone could be injured (477) o View of some is no FM should be used when the killing was justified o Agency Theory FM only applies to killings directly performed by one of the co-felons in furtherance of joint feloniously plans (killer has to be an agent of D)—most states Ct can consider whether it was a foreseeable deviation from the plan State v. Canola (NJ 1977) 471 Jewelry store robbery—V fought back—gunfight ensued Owner and co-felon Lloredo were killed (owner shot by a felon, Lloredo shot by owner) D convicted of FM for both deaths—appeals from co-felon conviction Ct overturns the conviction—Owner not an agent, trend is to restrict the rule NJ’s statute could be read either way (―death ensues‖)—policy call After Canola, NJ adopted a new statute—if any person causes the death of another (other than a co-felon) in furtherance of the crime (proximate cause) More states moving towards proximate cause theory State v. Heinlein (DC C 1973) 476—3 Ds raping one V, V slapped D so D killed her— unanticipated, unplanned, not in furtherance of the felony—under agency theory, no FM o Proximate Cause Theory Minority view (NY/NJ) but more states are adopting A felon can be convicted of FM for any killing caused by the felony (reasonably foreseeable result)—doesn’t matter who kills or who was killed Usually used when the victim of the crime responds (and kills a felon or bystander) or when the police kill someone in a gun battle
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o People v. Hernandez (NY) 475—one police officer shot another but actions of co-felons caused a gun battle—can still trace fault back to felons Vicarious liability Taylor v. Superior Court (Cal 1970) 477 Daniels and Smith rob a liquor store owned by West’s; D is getaway drier; Smith was pointing a gun at Mr. W and Daniels was threatening him, the Wests shoot at Smith; Smith dies D can’t be convicted under FM b/c the killing wasn’t done to further the felony; however, D can be found guilty on theory of VL VL: ―when the D or his accomplice, with a conscious disregard for life, intentionally commits an act that is likely to cause death, and his V or a cop kills in reasonable response to act, D guilty of murder‖ Ct held that Daniels’ conduct was sufficiently provocative to support a finding of implied malice—Daniels and Smith initiated the gun battle People v. Antick (Cal 1975) 482 Police pulled over a car packed with household goods following a residential burglary; only the driver was in the car (passenger in car when it was first spotted) Driver shot at officers, officers returned fire—driver died Police later found the passenger and evidence that he had participated in burglary No FM—not committed by a felon or a co-felon acting in furtherance of felony No VL—driver’s conduct resulted in his own death, not the death of another—can’t be guilty of murder in connection with his own death—accomplice can’t be vicarious liable for a crime his accomplice didn’t commit o Same story as garage killing—wife and sister There must be someone for the D to be vicariously liable for—V not responsible for his own death, need an accomplice; VL has to be attached to a valid charge HYPO: Smith and Daniels both died. Taylor can’t be charged b/c neither can be responsible for his own death. However, theoretically possible to make Smith responsible for Daniels’ death and vice versa in order to charge Taylor (but this would present evidentiary problems) Affirmative Defense Some jurisdictions (like NY) allow accomplices to raise an A/D to FM; elements Felon didn’t encourage death, had nothing to do with any homicidal act F wasn’t armed with a deadly weapon F had no reason to believe any co-felons were armed w/ deadly weapons F had no reason to believe any co-felons would act in a homicidal manner
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Murder Two What makes a homicide Murder Two? o Intentional killing (No premeditation) o Felony Murder (felonies not enumerated) o Depraved Heart Murder Depraved Heart Murder o When risk of bodily harm is so severe as to suggest a cruel and malignant heart, involuntary manslaughter becomes DHM Creating this kind of risk is as bad as intentionally killing w/o premeditation/provocation o In unintentional killings, there is no mens rea level at the time of the killing—need to evaluate the mens rea during the risky behavior that led to death o First consider whether the behavior constituted criminal behavior; consider Extent of risk Degree of possible harm (GBH=death) Whether acts were justified? o If high risk, serious harm, no justification-→look at mens rea of D during his risky behavior CL Majority requires recklessness—subjective knowledge of risk; callous disregard for human life CL Minority/MPC requires recklessness +: subjective knowledge of risk, extreme indifference to the value of human life Lower level of risk/lower mens rea involuntary manslaughter o Being drunk=being aware (voluntary impairment is no excuse for not knowing) This would be the only instance when using a subjective standard matters—D can’t usually persuade jury that he honestly didn’t perceive a risk that a reasonable person would have (unless drunk)
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o DHM has a subjective standard—D needs to be consciously aware of the risk—but this doesn’t always help the D b/c the jury might be so enraged they apply a ―should have known‖ standard instead of ―subjectively knowing‖—or jury may be so enraged that they don’t believe D when he claims not to have known Commonwealth v. Malone (PA 1946) 439 D was 17; D went up to V and asked if he wanted to play Russian Roulette (V said yes), D shot V 3 times—3rd time a bullet was discharged, fatal wound D testified that the gun misfired—the bullet was in the 5th chamber so it shouldn’t have went off—D had no intention to kill V D intentionally pulled the trigger, ―60 % risk gun would fire‖, aimed at a vital part of V’s body Court holds D guilty of 2nd degree murder—D intentionally committed an uncalled-for act in ―callous disregard of its likely harmful effect on others‖ Ct seems to be applying a subjective standard but if Malone was telling the truth, he had no subjective awareness of the risk—Ct is either using an objective standard or doesn’t believe D—more likely, ct is enraged at these types of crimes and is sending a message Malone is an anomaly—not clear whether court is using an obj or subj standard—doesn’t acknowledge D’s argument that the evidence doesn’t support nature of risk United States v. Fleming (4th C 1984) 443 D driving with a BAC of .315—speeding (70-80 in a 30 at time of collision), driving into oncoming traffic, weaving D collided with V’s car—V died at the scene When a D is voluntarily intoxicated, cannot use lack of subjective awareness as a defense to DHM D’s driving indicated a depraved heart—more of a deviation from the norms than usual Parrish v. State (Fl App 1957) 430 D was chasing his ex-wife through the streets with a bayonet, intending to kill her; ex-wife ran a stop sign, hit another car, and was killed D convicted of DHM Drunk driving Pears v. State (445)—D was warned that he was too drunk to drive by 3 people and drove anyway—killed 2 people in a collision—the warnings meant his actions weren’t merely inadvertent, but demonstrated extreme indifference to the value of human life People v. Watson (445)—D convicted of murder b/c he had driven his car to the bar and ―must have known‖ he would have to drive it later + hazards of drunk driving Dissent: 55 in a 35 was dangerous but not likely to result in death of another—no one else around at 1 AM—death isn’t probable result of drunk driving and people drive drunk safely all the time Should being drunk make a difference—what if a sober person was driving like a drunk— should they be more or less culpable? Murder by omission: People v. Burden (443)—father consciously failed to feed his child (―just didn’t care‖)—death from malnutrition and dehydration—DHM
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MPC Murder (210.2) 1076 MPC doesn’t distinguish b/t M-1 and M-2, no requirement of malice aforethought Criminal homicide constitutes murder when o It is committed purposely or knowingly OR o It is committed recklessly under circumstances manifesting extreme indifference to the value of human life (similar to DHM) People v. Roe was a NY juvenile Russian Roulette case, D found guilty of murder b/c the circumstances showed extreme indifference to human life State v. Davidson was a KS case; D found guilty of reckless 2nd degree murder (statute similar to MPC) b/c she failed to properly train her Rottweilers and failed to lock them up; they got out and killed an 11 year old. She ignored her dogs’ aggressive behavior towards children—she created an unreasonably risk and then consciously disregarded it (showing indifference)
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Voluntary Manslaughter What makes an intentional killing manslaughter rather than murder? [What 4 things does the D have to prove—or P have to negate?] o D acted in the heat of passion (S) o Legally adequate provocation (O) o [Insufficient cooling time] (O) o D had not actually cooled (S) Provocation o Girouard v. State (Ct App MD 1991) 405 D convicted of 2nd degree murder; trying to get voluntary manslaughter—provocation D and V got into an argument the night of the killing—D was enraged and stabbed V (wife) 19 times with a knife—wants court to consider V’s words as adequate provocation Established circumstances for provocation: assault/battery; mutual combat; D’s illegal arrest; injury/serious abuse of a close relative; sudden discovery of a spouse’s adultery Standard for adequate provocation: ―calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason‖ Ct determines that words alone are not adequate provocation—affirm the murder conviction o Girouard standard: only listed circumstances are provocation o Problems with allowing words to be adequate provocation: evidentiary problems; credibility of D; jury may not establish all the prongs if they are mad enough o Maher v. People (S Ct Michigan 1862) 407 D shot V but the wound wasn’t fatal. Issue: if D had died, would the killing have constituted murder or manslaughter? [D trying to mitigate his conviction of assault with intent to murder] TC didn’t allow D to present evidence that he had seen the V and D’s wife go into the woods together and had been told by a friend that V and D’s wife had had sex the day before—but should they have? Ct reasons that whether provocation is adequate is a question of fact that should be determined on a case by case basis (CL situations may be too limited)—reasonable man standard—feel that jury is better suited to determine what constitutes provocation (judge removed from society) Ct says that the judge may exclude the evidence when it is clear w/o a reasonable doubt that the provocation couldn’t have produced the state of mind in ordinary men Dissent feels that the provoking act should occur in D’s presence o Cases that follow the Maher standard will allow the jury to determine whether the provocation was adequate (but judge is still a gate keeper) o 2 views of provocation partial justification: D was responsible but killing wasn’t a bad act partial excuse: Bad act but D not responsible o What is a reasonable person? [What standard does the jury use?] Bedder: [D killed V after V (prostitute) taunted D for being impotent—jury was instructed to consider whether a reasonable man who was not impotent would have reacted in the same way] reasonable man is void of D’s characteristics Camplin: [D was a 15 yr old boy who killed an older man for sexual abuse and taunting—jury was instructed to consider reasonable 15 yr old boy, would do] individual characteristics are used when considering the gravity of the provocation but not when considering standard of self-control (but sometimes hard to distinguish which aspects go to which standard) This allows the jury to consider stereotypes—only allows certain groups to use the provocation defense England no longer uses this standard: [Regina v. Smith] jury determines whether there is some characteristic of the accused, whether temporary or permanent, which affected the degree of control which society could reasonably have expected of him and which it would be unjust not to take into account o Seems unfair b/c not based on evidence—guilt depends on picture lawyer can paint MPC standard is most particularized (almost anyone gets it) Camplin asks the fact finder to empathize with D; MPC asks for sympathy o Policy: the more particularized we become, the more people get provocation—encourages us to paint bad pictures of victims, doesn’t seem fair to Vs
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What if the victim isn’t the provoker? State v. Mauricio (NJ 1990) 414—bouncer forcefully ejected D from a bar; D waited outside for bouncer, mistakenly killed a patron not involved in fight; S Ct reversed a murder conviction— voluntary manslaughter instructions should have been given Rex v. Scriva (1951) 414—D watched a driver knock down and severely injure his daughter, went after driver with a knife; fatally stabbed a bystander who attempted to restrain him People v. Spurlin (Cal 1984)—D killed his wife after an argument and then his son Scriva and Spurlin both denied provocation defense; is this fair? [irrational people uncontrolled] o What if the defendant elicits provocation? Regina v. Johnson (1989) 414: D made insulting and threatening remarks to V and friend; V and friend attacked him, poured beer on him and punched him; D stabbed V TC said no provocation—D excited the provocation; AC reversed—sent to jury Some American statutes disallow provocation defense when D induces provocative action Insufficient cooling time o US v. Bordeaux (413): V had raped D’s mother 20 years earlier (D was told the day of the killing, but much earlier); D killed V—court said that evidence of a prior argument or continuing dispute was insufficient to warrant a voluntary manslaughter instruction w/o some sort of incitement (revelation of rape was much earlier in the day, and well after rape) o Rekindling: if sufficient cooling time has elapsed but the person who originally provoked D reminds D of the provocation, D may get past insufficient cooling time—DEPENDS ON JURISDICTION 413 Commonwealth v. LeClair (Mass 1999) 413—D had suspected his wife of infidelity for several weeks and strangled her upon confirming his suspicions; no manslaughter instructions People v. Berry (Cal 1976) 413: provoked D had waited for V in her apt for 20 hrs; manslaughter instructions—jury could find that D’s heat of passion resulted from a longsmoldering prior course of provocative conduct by the V, passage of time serving to aggravate rather than cool D’s agitation; but see Gounagias 413 o
Involuntary Manslaughter How to get involuntary manslaughter? o Criminal negligence o Unlawful-act doctrine D engages in risky behavior that results in death—when does it constitute involuntary manslaughter? (Rather than DHM or civil liability) o Civil liability—when failure to exercise due care creates a risk (e.g. failing to get brakes fixed) o Involuntary manslaughter: when behavior is so risky it deserves criminal punishment Consider the factors of the behavior o Extent of risk o Degree of possible harm (GBH=death) o Whether acts were justified Was the person acting reasonably or does the behavior constitute criminal activity? If the behavior constitutes criminal activity, consider mens rea o CL majority: gross negligence (same as MPC negligence)—objective standard; gross deviation from the standard of care a reasonable person would take o CL minority: recklessness—subjective awareness of a risk—ignoring risk is a callous disregard of human life Can we deter inadvertent actions? We take risks everyday—will we paralyze people if we deter them from doing so? Commonwealth v. Welansky (Mass 1944) 425 o D owned and operated a nightclub in Boston in the 1940s o Fire at nightclub—locked and hard to find exits, flammable decorations—460 dead, 200 injured o D’s omissions created a risk that caused death—found guilty of involuntary manslaughter o What mens rea is needed for the risk? Court mentions subjective and objective standards—are they imputing recklessness (knew of risk) or negligence (should have known)? Negligence plus (gross negligence)—more than ordinary negligence is required for criminal liability Fire in a public place is an ever present danger—even if D was ―so stupid or heedless,‖ appropriate mens rea can be imputed if an ordinary man under the same circumstances would’ve realized the gravity of the danger Mass doesn’t have a negligence standard—justifying imputing recklessness
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State v. Williams (WA App Ct 1971) 431 o Ds were parents of an infant who died of a gangrene infection o Ds charged with involuntary manslaughter for not taking the child to a doctor (omission—legal duty + capacity to act) o Ds didn’t take child to doctor out of fear that the child would be taken from them but court used an objective reasonable person and a standard of ordinary negligence and convicted them o There was a four day critical period during which the child exhibited symptoms of gangrene and the parents didn’t seek medical attention—court found that a reasonable person would have taken the child to the doctor in that amount of time o Ct claims to consider the caution exercisable by a man of reasonable prudence under the same or similar conditions, but they didn’t consider Ds’ background or justification o Ct recognizes that the Ds didn’t realize the severity of the illness, but using a negligence standard so subjective knowledge N/A What is a reasonable person? o Reasonable person in the abstract? Is it fair that you can be convicted of involuntary manslaughter on a negligence standard (no subjective knowledge) w/o a particularized justification standard? o MPC: reasonable person in D’s situation o Hart: reasonable person w/ mental and physical capabilities of D o German: personal knowledge and abilities State v. Everhart (NC 1977) 438—D was young girl w/ IQ of 72, gave birth in her bedroom, thought baby was dead; wrapped baby in a blanket and the baby smothered to death. Ct reversed involuntary manslaughter conviction b/c of IQ + accidental nature of death But, Edgmon v. State (Alaska App 1985) 438—Ct held that individual capabilities would have to be considered in assessing recklessness but D’s peculiarities (intelligence, experience, physical capabilities) are irrelevant in determining criminal negligence b/c reasonable person standard
MPC Manslaughter (210.3) 1077 Criminal homicide constitutes manslaughter when o It is committed recklessly (CL involuntary manslaughter) OR o 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 (ALWAYS GOES TO JURY) Considering reasonableness of EED, NOT killing People v. Cassassa (NY 1980) 415 o D and V dated casually; V told D she wasn’t in love with him, D was devastated; D began to stalk V (broke into her apartment, eavesdropped, etc.) o D went to V’s house with gifts; V rejected them—D stabbed her with a knife and submerged her body in a tub full of water o D appealing his conviction of 2nd degree murder—claims EED [TC concluded that his reaction was so peculiar to him it couldn’t be considered reasonable] o 2 components of the defense of EED: (1) D must have acted under EED; (2) reasonable explanation or excuse (determined by viewing D’s subjective, internal situation and the external circumstances as D perceived them at the time) o AC affirms TC’s judgment—agrees that ―the murder in this case was the result of D’s malevolence rather than an understandable human response deserving of mercy‖—but this seems to go against the MPC standard MPC standard is meant to include EVERYTHING that could go to provocation; NY excluded particularities of D in Cassassa In the end, the question is whether the actor’s loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen State v. Elliot 418: D suffered overwhelming fear of his brother, killed him one day for no apparent reason; CT S Ct held that instructions on EED was required—EED isn’t the same as ―heat of passion‖—homicide doesn’t have to be committed in the ―hot blood‖ stage—is brought about by significant mental trauma that caused D to brood for a long time and then react violently People v. Walker 419: D was a drug dealer who owed his supplier (V) money (claimed it was stolen); in a restaurant one night, V asked D for money; D shot V. TC refused EED instructions and AC affirmed [but dissent pointed out that MPC wanted to discard ―words are not enough‖ rule]
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Misdemeanor-Manslaughter Misdemeanor-manslaughter rule (“Unlawful-act doctrine”) 455: A misdemeanor resulting in death can provide a basis for an involuntary manslaughter conviction w/o proof of recklessness or negligence Possible limitations (differ by jurisdiction) o Nearly all jurisdictions impose a proximate cause rule State v. Williams (PA 1938) 456—D convicted of manslaughter for failing to renew his D/L— conviction reversed b/c expiration of D/L had no causal connection to the accident (which had resulted from the carelessness of another driver!!) o Some courts restrict the doctrine to only apply to acts which are morally wrong rather than prohibited acts (but some courts reject this limitation) o Some courts limit the doctrine to misdemeanors that rise to the level of criminal negligence or violations that evince a marked disregard for safety of others o Cal (People v. Cox) held that proof is needed that the underlying conduct was dangerous to human life under the circumstances of its commission o State v. Powell (NC App 1993)—jogger killed by escaped Rottweilers; ordinance required that dogs be securely restrained. Ct ruled that b/c the ordinance was a safety ordinance, designed to protect persons + property, D guilty of IM whether or not he had been reckless or negligent in allowing dogs to escape
RAPE Basic Doctrine Elements of Rape (Rusk, MD statute) o Vaginal intercourse (conduct) o Force or threat of force o Against the will of V o Without V’s consent
Consider these one element—statute was in the midst of transition from against resistance to w/o consent Often hard to determine whether there has been a crime b/c o Rape is the only area of criminal conduct where the same conduct under different circumstances can be criminal or welcome o Unlike other areas of the law, statutes/evidentiary procedures always changing—law is in flux b/c of the changing roles of women Inherent confusion b/t force and nonconsent—2 ways to view o Force and nonconsent and separate elements (force OK in some consensual sex; others feel that sex is only nonconsensual if there is force) o Force is evidence of nonconsent—if we see force, D must have known V didn’t consent Some statutes require only nonconsent (but look to force as evidence), others only require force, others require both
Actus Reus: Force State v. Rusk (App Ct MD 1981) 323 o D convicted at TC of 2nd degree rape; AC reversed for insufficient evidence of force o Standard: if jury believed V then AC is looking at the facts in the light most favorable to the V to determine whether there was force or threat of force V met D at a high school reunion, gave him a ride home; he took her car keys and made her come up to his room. She didn’t escape when she had the chance and didn’t fight back other than to say no But, when she asked ―if I do what you want will you let me go?‖ he lightly choked her and then said yes V claimed that she was too afraid to fight back; D claimed that V had sex willingly, denied choking her or using any force o Test to determine force (CL) V resisted and D overcame resistance by force OR V failed to resist out of fear o No resistance so only looking at 2nd prong o SC felt that AC had substituted its own views of the evidence rather than asking if a trier of fact could find for the P when facts viewed in light most favorable o Jury must have believed V not D, reasonableness of V’s fear was a jury question that is supported by the evidence, esp ―lightly choking‖, reverse AC’s reversal
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Dissent Feels that force isn’t met as a matter of law—can’t just say she was scared—must resist unless D has objectively manifested his intent to use physical force Dissent feels that V was seduced, that the pattern was consistent with ordinary seduction techniques No conduct of D that would give rise to her failure to flee Dissent acknowledges that the standard is no longer resistance to the utmost but seems to be applying this standard anyway Resistance of V used to be an element of all rape statutes (now only in LA) but it stayed around b/c it is now the test for force Base D’s force on V’s conduct Resistance is required in rape cases to put D on notice; only crime that could ever be considered consensual Why isn’t verbal resistance enough? o Societal misconception that ―no means yes‖; men wrote statute (view it as a fight); fear that women would cry rape; unharmed victims aren’t as believable; more skepticism about the crime in general Today’s standard of resistance (Rather than ―to the utmost‖) is ―reasonable resistance‖ (minority: ―earnest resistance‖)—totality of circumstances test—OBJECTIVE TEST (used to determine whether there was consent in most cases, not as a separate element) o Problem: paranoid women could be truly afraid and D could know and continue—fear unreasonable so no force Stanko (328)—women’s experiences point to a potential for violence in many of women’s ordinary encounters with men—fear needs to be seen from their point of view Emerging, but minority view: any instance of nonconsensual intercourse is a criminal offense; most states still require force or forcible compulsion Policy for not requiring resistance (CA): ―frozen fright‖ response resembles cooperative behavior; lack of resistance may reflect terror rather than consent; sometimes resistance makes it worse (other times better— women need to be free to make the determination); no other crime requires resistance; assumptions against credibility of Vs are no longer valid Many courts feel that fear needs to be reasonably grounded o People v. Warren (Ill App 1983) 331 V (5’2‖, 100 lbs) biking in an isolated area when D (6’3‖, 185 lbs) approached her and carried her into the woods—―my girlfriend doesn’t meet my needs‖ Ct reversed conviction—she didn’t attempt to flee, didn’t yell, wasn’t threatened—she said she was afraid but they found that b/c she could’ve resisted and didn’t, she conveyed consent—Ct holds V must communicate her nonconsent in an objective manner D couldn’t have been aware of her fears if she didn’t communicate them and he wasn’t threatening her—Ct doesn’t see his size as threatening o Reflects inadequacy of law—V could have been reasonably afraid in this situation Need D to be on notice—then at least his culpability level is reckless Test is same for nonconsent and force Problem with failing to resist out of fear—D doesn’t know of fear If resistance is overcome by charm—change of heart Force must be extrinsic—force of penetration isn’t enough MPC rape: 213.1 (1082) o A man who has sex w/ a woman not his wife is guilty of rape if (a) he compels her to submit by force or threats; or (b) he has substantially impaired her power to appraise or control her conduct; or (c) the female is unconscious; or (d) the female is less than 10 yrs old o Also defines *gross sexual imposition* o
Actus Reus: Coercion Implicit threats: State v. Alston (NC 1984) 332 o V and D had cohabitated for 6 months; D abused V several times and she moved out o One moth later, told her he was going to fix her face, he had a right to have sex with her one more time—she told him she didn’t want to but he took off her clothes, pushed her legs apart, and penetrated her o Ct held nonconsent but insufficient evidence to establish force—doesn’t include past relationship (too disconnected), only looking at instant Problem with looking at past: brings in past sexual relations as well Extra hurdle when consent has been given in past (not really followed) Were her statements/actions clearly communicated to D? Did they communicate a revoking of prior consent and lack of consent at present moment? MPC—past sexual relations mitigate grading of offense
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Comments o CA has held a conviction can be sustained even if V’s fear was unreasonable, if D knew of V’s subjective fear and took advantage of it o Estrich—experience deemed irrelevant; male notion of rape is a fight, b/c there was no fight in Alston, no rape; women was a ―sissie‖ in the male eye—reaction of those who have already been beaten/never could fight to begin with; reasonableness standard requires women to be ―real men‖— allows men to freely seduce women through intimidation as long as they don’t fight o Berger—concerned with Estrich’s evaluation—OK in Alston’s situation but shouldn’t be the standard for all rape cases b/c it overprotects women—enfeebles rather than empowers them Nonphysical threats o State v. Thompson 333: D (principal) told V (student) she couldn’t graduate unless she had sex with him; statute required force/threat of death, bodily injury, or kidnapping—Ct won’t stretch definition of force to include intimidation or fear; don’t condone D’s acts but they don’t meet statutory requirements to establish rape o Commonwealth v. Mlinarich 334: D had custody of V after she was released from juvie—he told her that he would send her back if she didn’t have sex with him; D convicted of committing rape by threat of forcible compulsion. S Ct reversed conviction—force=physical force or violence; interpretation of forcible compulsion that would be ambiguous and based on ―exigencies of the circumstances‖ would open the doors to many rape cases; rape requires physical force/threats Dissent: doesn’t agree with majority that force only has one meaning—are really deciding which meaning of force Legislature was using—thinks a new approach to rape cases should be taken—D should be convicted o Comments 336 Reality of mental injury and economic duress show that man who coerces sex b/c of his economic power is just as culpable; rape punishes women’s freedom of sexual choice, not physical protection—freedom of choice can be negated equally by nonphysical and physical coercion MPC—gross sexual imposition covers any threat that would prevent resistance by a woman of ordinary resolution Some states extend offense of rape to include cases where consent is obtained by duress, coercion, extortion, or using a position of authority Commonwealth v. Rhodes—PA said forcible compulsion=any act of superior force that compels a person to do something against his will: physical, moral, psychological, or intellectual; Legislature then adopted a statute in accord with this opinion (included implied force) State v. Lovely—D (store manager) hired V to work for him, began paying V’s rent then let V move in—began sexual relationship; when V wanted to end relationship, D threatened to stop paying V’s rent, kick him out, and fire him; NH’s statute made it a felony to coerce submission to sexual penetration by threatening to retaliate against V—Ct upheld the conviction Comment: efforts to use financial leverage in personal relationships deserve criticism in most circumstances but should not inevitably violate legal rights o In general, fear must be of death or grievous bodily harm—plus be reasonable o Coercion, etc. only force if mentioned in the statute
Mens Rea (What did D think about V’s nonconsent?) Commonwealth v. Sherry (Mass 1982) 351 o V and Ds at a party together; V left a party with a Ds o V verbally protested but didn’t physically resist b/c she thought they were joking around—wasn’t restrained at all o Ds took turns having sex with V and then took her out to breakfast and home o Each D testified consent o Evidence sufficient to show force + nonconsent; Ds appealing—argue that mistake of fact negating criminal intent (claim lack of knowledge of nonconsent) is a defense to rape o Ct holds that mistake of fact needs to be reasonable—not at issue for procedural reasons o Comment to companion case Myth that a little force is always necessary to have sex with a woman; when a woman says ―no‖ to someone, any implication other than a manifestation of non-consent that might arise in that person’s psyche is legally irrelevant and no defense—no social utility in defining nonconsensual intercourse on the basis of the subjective (and quite wishful) view of the more aggressive player Director of Public Prosecutions v. Morgan (1976) o D + 3 accomplices convicted of forcible rape of D’s wife (claim she consented—fighting back b/c she was kinky but actually enjoyed it); applicable definition of rape: unlawful carnal knowledge of a woman w/o her consent by force, fear or fraud
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AC’s question to HL: Whether in rape the D can properly be convicted notwithstanding that he in fact believed that the woman consented, if such a belief was not based on reasonable grounds? Ds want a recklessness standard, P wants negligence o Ct holds that all that is needed is subjective belief (no mens rea in statutereckless) but jury will consider reasonableness of belief when deciding whether they believed D o Honest belief, even if unreasonable, negates mens rea of nonconsent o In this case, no miscarriage of justice so conviction stands Comments 358 o Mass has since adopted S/L standard—―no‖=nonconsent Feel that it is analogous to mistake of age being no defense in stat rape In jurisdictions that have a force requirement, S/L doesn’t seem too bad (if you are using force you should be sure she wants it) but it is troublesome in jurisdictions that don’t require physical force o Recent US cases permit mistake defense if honest and reasonable but England says once P proves D’s intent there is no room for defense—either intent is there or not o Alaska dispensed with any requirement of resistance but counteracted the risk by requiring mens rea level of recklessness—shifts focus from V to D o Problem is not whether we consider consent on a reasonableness or negligence standard, but how we define consent—too confusing for juries o Tyson v. State—AC affirmed refusal of a mistake of fact instruction—no gray area according to court as to whether there was consent—but it was a ―he said, she said‖ case—should the jury have been allowed to decide on the issue? o There are other crimes where liability may turn on consequences of mistake about consent State v. Kelly—D removed mantels from abandoned homes after someone told him that he was thinking about tearing down the homes—a neighbor confirmed that he was the owner and D sold the mantels—house was really owned by the guy’s estranged wife, who hadn’t consented to removal of the mantels—conviction reversed b/c he lacked intent to take w/o consent of owner—thought he had consent o Estrich—negligence liability for manslaughter; injury of sexual violation is great enough to justify negligence liability o Weiner—gender gap in sexual communication leads to miscommunication of consent—leads to submission but not voluntary consent b/c woman may be frightened but man may never know she was unwilling o Some women say no when they mean yes—teaches men to disregard refusals and increase incidence of rape; should there be a legal standard that says no means no? Husak: if no mistake of fact defense is allowed, convention (social behaviors regarding consent) may lead some men to be convicted of rape even if they thought consent had been given—legislatures should be cautious MacKinnon: men are conditioned to not notice what women want—rapists often think the women loved it—rape charges seem fabricated b/c facts suggest sex to them, not rape Problem: law assumes a single state of affairs existed that can be determined by evidence but many rapes involve honest men and violated women—when reality is split (woman raped but not by a rapist) law concludes no rape—try to solve this by using reasonable belief but don’t ask for whom—one-sided solution o
JUSTIFICATION AND EXCUSE 3 defenses to bar conviction o failure of proof o justifications o excuses Justifications and excuses don’t negate any elements of the P’s case but suggest further considerations that negate culpability even when all elements of the offense are present Justification o D is responsible but it was the right thing to do o Self-defense o CL necessity Reasonable belief Imminent harm unavoidable unless D breaks the law D not at fault (natural threat, but now relaxed) Harm avoided is greater than harm caused o Duress fills in the gaps that necessity creates
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Excuses: actor has displayed some disability in capacity to know or to choose, which renders the person either free of blame or subject to less blame—justice precludes blame where undeserved o It wasn’t a good thing to have done but D isn’t responsible o Insanity o 3 groups of excuses 842 disabilities that produce involuntary actions—nothing to excuse, D had no choice—no control over movements deficient but reasonable actions—D not prevented from making a choice but choice is so constrained that an ordinary person couldn’t be expected to choose otherwise cognitive deficiency—excusable lack of knowledge of some relevant feature of action (mistake of fact)—today more likely seen as failure of proof—required mens rea can’t be proven volitional deficiency—defect of will (duress)—a person commits a crime under such threats of physical injury that even a reasonable person would have yielded to the threat irresponsible actions—this person could not have been expected to act otherwise given the person’s inadequate capacities for making rational judgments (insanity) Duress isn’t so easily defined (nor is provocation)—partial justification, partial excuse
Self Defense Elements of self defense (US v. Peterson 750) o Honest and reasonable belief (at the time of the killing) o Force was necessary o Imminent/immediate threat o Unlawful force o One’s own force not excessive Why do we have the immediacy requirement? o If we are going to justify a homicide, S/D can only be invoked if there was no chance of getting help from the police Why can we use deadly force to respond to threats—seems there are other options? o In cases where there are other options, those options will be considered when determining whether force was excessive o Also, may be saying that a threatened person doesn’t always think rationally HYPO: A and B in a fight; A pulls out a gun first, but B was faster—shoots and misses; can A claim S/D when he kills B? o NO, initial aggressor cannot invoke S/D if their intended victim fights back—B’s force was lawful under S/D—defeats ―unlawful force‖ requirement o BUT, if A had only tried to punch B in the nose before B shot at him, B’s force would have been excessive so unlawful and A could invoke S/D If you are the initial aggressor, you can be restored to your rights of S/D as long as you effectively withdraw from the initial encounter (threat no longer imminent)—but the question becomes: was the withdrawal effective? Reasonable Belief o HYPO: A and B at a bar, B is told that A has been threatening to kill him; A rushes towards B while reaching in his pocket; B thinks A has a gun so he shoots him. If A was really reaching for a handkerchief, can B invoke S/D? At the time of the killing, B honestly and reasonably believed that A was going to kill him—jury must consider the totality of the circumstances—B’s belief isn’t negated by A’s true intent B couldn’t take the chance of waiting—A shouldn’t be making threats o Same question as in every other reasonableness doctrine—what is reasonable? MPC partially individualizes the objective standard o Jury will always be taking stereotypes into account when determining reasonableness—is this fair? Approves stereotypes, may have adverse effect of more vigilante justice But difficult to say that people can have beliefs but not act on them—problem is in the stereotypes themselves—maybe a cultural defense here? Fear of death is universal; what makes one fear death is individual o What happens if someone honestly but unreasonably believes he is in danger? 762 Minority view (MPC 3.09(2)): if you are reckless/negligent in forming your belief, you can’t be found guilty of any crime requiring a higher mens rea level; mens rea for mistaken belief will transfer—manslaughter/negligent homicide Imperfect S/D is based on unreasonable belief—mitigates (to voluntary/involuntary manslaughter) rather than acquits Majority view: too bad, guilty of murder, no mitigation
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o People v. Goetz (NY 1986) 751 D on the subway, 4 kids asked him for $5 (no weapons); D shot all 4 (missed the 4 th but shot again) and fled; kids didn’t die—being charged w/ assault + attempted murder When D turned himself in, he claimed that he had feared being maimed (even though he knew no weapons) D said he wanted to murder all of them so had established a pattern of fire—shot 4th V twice b/c he wasn’t hurt the first time—would’ve shot more if he had more bullets Issue: whether belief needs to be subjectively reasonable to D or reasonable to an objective person in D’s situation MPC only requires that D believe but NY Law requires ―reasonably believes‖—if NY wanted it to be subjective they wouldn’t have added ―reasonably‖ when they adopted the S/D provision (in NY, S/D is full excuse or no excuse—there is no in b/t like in MPC) Ct doesn’t want to infer that Legislature wanted to alter principles of justification to allow perpetrator to go free simply b/c he believed his actions were reasonable and necessary to avoid perceived harm—this would allow people to set their own standards for permissible use of force, regardless of how bizarre his thought patterns were Determination of reasonableness is objective but considers D’s prior experiences Physical attributes of D and V D’s knowledge about V Circumstances of event NY’s statute qualifies situations that justify deadly force in S/D—no need for the nonexcessive force requirement—reasonable belief that V is using/about to use deadly force, or is committing/attempting to commit kidnapping, forcible rape, forcible sodomy, or robbery Jury subsequently acquitted D of all but carrying a concealed weapon Comments 755 (Berger) No evidence that kids had actually tried to rob him; jury seemed to be saying that in the urban experience, such evidence doesn’t matter too much—perceptions become facts; no one is reasonable when surrounded by 4 thugs Goetz’s actions technically illegal but jury seemed to recognize that the fear of crime is greater in one who has been mugged before—Goetz was only motivated by fear so still S/D Statistical evidence supports perception that blacks more likely to commit crimes—seems to be a racist attitude but not unrealistic Result: will people in NY be quicker to kill when they think they are threatened? Will blacks have to fear being mistaken for criminals? Comments 757 (Carter) Discussing a cartoon—crowd of minorities running from a subway car in fear—two elderly women left inside (―I was just reaching for my lipstick!‖) Goetz’s situation would have been much different had Goetz been black and the kids (claiming to be minding their own business) white Now minorities are frightened innocents, victims themselves—afraid to ask for directions/change Minorities aren’t really victims (as defined by dominant culture) b/c there are no transgressors who might be punished for causing their fear Comments 757 (Armour) Reasonable Racist—even if belief that blacks are prone to violence stems from pure prejudice, he should be excused for considering race before using force b/c most Americans in the same situation would have done the same Problem: reasonable doesn’t mean typical—just b/c we live in a racist society doesn’t mean it is reasonable for someone to take another’s life into his own hands—unreasonable to not overcome racism for the sake of another Socioeconomic status is what causes more blacks to be involved in crime—can’t use race to predict such status—statistical evidence that blacks more involved in crimes not a good enough reason to excuse the crime Race based evidence impairs jury’s ability to strike a rational and fair balance b/t costs of waiting and not waiting—evidence should be excluded b/c prejudicial to jury Argument for a subjective test 759 (MPC commentator) Only situation where a person makes an unreasonable mistake in what he believes to be S/D is when drunk/abnormal mental state—taken care of elsewhere Insane/feeble-minded problem speaks to a larger problem outside scope of S/D doctrine Argument against a reasonableness standard 759 No reasonable people under conditions in which death/harm is believed to be imminent—logic is flawed—unreasonable to expect reasonable behavior when threatened
o o
o
o
o
o
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Limbic system takes over entire brain when you are threatened—takes over interpretation, judgment, and restraint functions—even at reasonable moments, we are influenced by emotions—they aren’t subsidiary to rationality Once limbic system takes over, can’t be just shut off instantaneously—people turn into animals and it may take time to realize the danger is no longer imminent Limbic driven emotions (not rationality) also affect perception of threat [Supports Goetz—once he developed his shooting pattern, he couldn’t stop—but this is outside scope of the S/D doctrine—jury taking law into its own hands] Imminent Danger o What does imminence refer to? Time: if you have time to do something else, too much time b/t threat and action Futility: if there is no chance to get help no matter how much time you have b/t threat and action, threat is imminent—doesn’t matter when you kill We don’t use futility b/c too subjective—allows S/D to be used too broadly, room for error But if we expanded doctrine beyond time considerations, we would allow for nontraditional considerations to come into play—cultural defense, failure of police to protect the poor o We have imminence (not inevitability) as the standard b/c circumstances can change and threat won’t be realized—don’t want to justify killings for nothing o State v. Norman (NC 1989) 776 D convicted of voluntary manslaughter; App Ct granted new trial b/c error for TC not to submit possible verdict of acquittal by reason of perfect S/D; SC reverses AC—no new trial D was a battered wife, shot D (3 times, fixed gun in process) while he was sleeping the day after he had beat her so bad that she called cops (didn’t arrest V b/c D wouldn’t press charges) and then attempted suicide (V told paramedics not to save her); day of killing: tried to have V committed (V threatened her life when she told him) and get welfare so she wouldn’t have to prostitute herself for $ (D took her away from office) Perfect self defense excuse requires that threat be immediate/imminent (reasonable belief in necessity); culpability is less for imperfect self defense but D isn’t justified in killing enough to be acquitted Imminent: immediate danger, such as must be instantly met, such as can’t be guarded against by calling for assistance of others or protection of the law b/c V was sleeping, there was no action of V which would let jury find that an assault/death was imminent—D had time and opportunity to resort to other means of preventing further abuse Inevitable≠imminent; belief about what will happen in future doesn’t establish a fear of death at time of killing Recognizing BWS as justification for S/D when no immediate threat of death would expand the doctrine too far—S/D could be used in any situation where D thought harm was inevitable rather than imminent Even if jury were allowed to speculate about future assaults to justify D’s deadly force, wouldn’t apply in this case—no evidence D’s abuse had ever approached death/great bodily harm Ct also held that D wasn’t entitled to instructions for imperfect S/D (imminence requirement for both perfect + imperfect) but even if error, was harmless b/c imperfect S/D=voluntary manslaughter Dissent D thought she had no escape, and no one could help her (not even the law); for battered wife, if there is no escape, then the next attack (which could be fatal) is imminent Question is not whether the threat was in fact imminent, but whether D’s belief in the impending nature of the threat, given the circumstances as she saw them, was reasonable to an ordinary person Jury could reasonably conclude that D reasonably perceived a threat to her life as imminent, even while V slept o If Norman had waited for V to come after her before she killed him, she would have been acquitted— does this encourage battered spouses to lie in wait? o Poor people have stereotypical thought that it is kill/be killed (no police help)—if we allow racial biases to be considered for reasonableness, why not these beliefs? o Comments 780 Facts were ignored which common sense and life experience tell us are significant but aren’t considered by traditional law; facts have no place in moral reasoning mandated by traditional S/D law but cause moral disquiet w/ result
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Only 20% of battered-spouse prosecutions involve nonconfrontational S/D but these pose the greatest challenge to traditional conceptions of S/D—most courts won’t admit BWS evidence or give jury instructions for S/D if V is asleep Flexibility is beginning to emerge (Robinson v. State SC 1992) but should these cases go to the jury—when escape is in fact possible? 4% involve a battered wife who has hired/persuaded a 3rd party to kill abuser—if it is reasonable for a battered spouse to kill sleeping abuser, why is it unreasonable for her to enlist help of 3rd party in catching him unaware? Cases where wife has attempted to flee doesn’t fit pattern of learned helplessness (BWS)—courts could rule BWS evidence inadmissible Contract killing is strongest case—battered spouse is so helpless she can’t even help herself (but seen as premeditation by courts) What about 3rd parties? Someone who comes to the aid of a person in peril can use deadly force to prevent the attack, under the same circumstances that would justify use of deadly force by endangered person herself In the 80% of battered-spouse prosecutions that are based on confrontations, BWS used as evidence to establish reasonableness Prevailing rule: force can only be used to rebuff an attack that is about to happen right then and there. Is it only flawed for BWS or in general? State v. Schroeder (Neb 1978) 782 D and V (rep for violence) cell mates; V threatened D (who owed V money) before he went to sleep that he might sleepwalk and begin collecting his debt; D shot sleeping V Ct said no S/D—words alone aren’t sufficient justification for an assault (only evidence of imminent threat was D’s words) Dissent: D faced with a threat—couldn’t be expected to stay awake ever night waiting for V’s attack Ha v. State (Alaska 1995) 783 D had been beaten severely by V in a violent argument (during which V had left and returned w/ a hammer); V threatened to kill D several times D concluded that V or his violent gang would carry out threat someday, didn’t think police could help (language barrier/cultural background) so shot V in back Ct didn’t instruct on S/D, D convicted of murder; on appeal, ct recognized that a reasonable person in D’s position would fear death and there was no escape but upheld conviction—inevitable≠imminent o Reasonable fear of future harm doesn’t authorize a person to hunt down and kill an enemy o Poor decision—judge recognizes Ha would have been killed but doesn’t allow him to defend himself MPC [3.04(1)—1049] relaxes imminence requirement—sufficient if D reasonably believed use of defensive force was immediately necessary Some states have adopted similar statutes (NJ), others have invoked similar reasoning in court decisions (WA) State v. Janes (WA 1993) 783—imminence doesn’t require actual physical assault; threat can support S/D when there is a reasonable belief threat will be carried out—in abusive relationships, behavior patterns signal next abusive episode—just b/c behavior and episode are divided by time, it doesn’t necessarily negate reasonableness of D’s perception of imminent harm Jahnke v. State (Wyoming 1984) 784 D was a 16 yr old boy who had been abused for 14 yrs by his dad (V) D sat in wait for 1 ½ hrs before his dad got home and then shot him D not allowed to use battered person syndrome to support S/D claim Ct found no error, upheld voluntary manslaughter verdict If battered person evidence has any role, it is to assist jury in evaluating reasonableness of D’s fear in a case involving recognized circumstances of S/D— including a conflict not of D’s instigation Concurring opinion: traditional M-1 case, D put V on trial to mitigate Dissent: D had no one to turn to for help, was protecting his family; when abuse has caused D to harbor fears with which nonbrutalized jurors are unfamiliar that result in unusual defensive measures (which would ordinarily be thought of as premature or excessive) then expert testimony is needed to explain battered-person syndrome and the way these people respond to what they understand to be imminent danger [we don’t want to excuse killings for moral reasons]
o
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o Battered-person syndrome evidence used to be considered by judges for sentencing but with more sentencing standards, judges have less discretion and less use for this evidence (still do what they can though)
Duress Traditional CL defense; 4 elements o Immediate/imminent threat o Of death or grievous bodily harm (not threat to property/slight injury/idiosyncratic fears—but MPC only requires unlawful force) o D reasonably believes threat will be carried out (well-grounded fear, not mistaken) [and breaking the law is necessary] o N/A for murder (i.e. intentional killings) MPC doesn’t have this requirement (but if D put himself in situation b/c reckless then no defense) Minority of states: if duress is a successful defense to the predicate felony, no basis for FM; but the majority say no defense to murder (including FM) Half the jurisdictions allow duress to mitigate sentencing in murder charges Nothing should excuse murder—better to die than to cause death of an innocent—if we allowed it to excuse murder, how many deaths could be justified?—would justify gang violence, war crimes (US recently held duress not a complete defense to war crimes even if soldiers were threatened with death [why should their lives be more important than lives of innocent civilians?]) What if D only plays minor part in a murder? Depends on jurisdiction Comment: proposition that ―he ought rather die himself, than escape by the murder of an innocent‖ has less force when the D only plays a minor part—no guarantee that by dying the innocent’s death will be saved/no guarantee that death will result if he complies Objective standards, not based on temperament Standard used to be lesser of 2 evils but now based on reasonableness—may not be lesser of 2 evils, depends on situation When someone is excused for duress, the person exerting duress gets charged w/ crime D has B/P for all elements; if agent exerting duress isn’t available then success of defense depends on whether jury believes D State v. Toscano (NJ 1977) 845 o D convicted of conspiring to obtain $ by false pretenses; D admitted to action but argued that he had acted under duress TC ruled that threatened harm wasn’t sufficiently eminent to justify giving instructions on duress, AC affirmed; SC reversed and remanded o D owed gambling debt to Leonardo so participated in L’s fraud; he had received several threats but ignored them; after a threatening phone call, he prepared the false form and medical bill—didn’t get the profits o D was so afraid he moved and changed his phone number o TC’s instructions: duress is only applicable when an act was committed in response to a threat of present, imminent and impending death/GBH—when D has chace to seek police assistance, there is a duty not to acquiesce in unlawful demand and any criminal conduct engaged in may not be excused o NJ didn’t have a statute defining defense of duress—turned to common law Duress only recognized when alleged coercion involved imminent threat of death/GBH if act isn’t done; can’t be used to excuse killing Standard: threatened injury must induce ―such a fear as a man of ordinary fortitude and courage might justly yield to‖—threats of slight injury/destruction of property aren’t coercive enough to overcome will of a person of ordinary courage—when threat is of future harm, D had a duty to escape from threatening person’s control or seek assistance from police Assuming imminent danger, no requirement that D=threatened person o CL insists on threat of death/GBH b/c fear perjury/fabrication of baseless defenses; NJ recognizes these problems but fear the requirement has potential for injustice—under some circumstances the commission of a minor offense should be excusive even if coercive agent doesn’t use/threaten force which is likely to result in death/GBH; also possible authorities won’t be able to prevent a future threat o NJ adopts new law of duress Duress shall be a defense to a crime other than murder if D engaged in conduct b/c (1) he was coerced to do so by the use of, or threat to use, unlawful force against his person or the person of another, (2) which a person of reasonable firmness in his situation would have been unable to resist
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Source of threat o Why is it OK for a D to run over 2 people lying in the road if he has a gun to his head (duress) but not if his brakes fail (no claim of necessity b/c not the lesser of 2 evils?) Retribution: in the first case, if D is excused, someone can still be prosecuted (guy w/ gun); in the second case, if D is excused, there is no one to prosecute But, if in principle the D should be excused why does it matter if there is no one to prosecute? Imminence of the threat o MPC treats imminence of threat as a factor, CL as an element (majority preserves this element, rejects MPC’s flexible approach) o US v. Fleming 855 D was an Army officer charged with collaborating w/ the enemy while a POW in Korea— prepared propaganda designed to promote disaffection among US troops D claimed duress—he was abused + forced to march, prison conditions were extremely bad Accused had no shoes and was in a weak physical condition; he was constantly threatened with being forced to walk 200 miles in winter or being sent to wet + muddy caves w/o heat Court upheld conviction—duress can only be used as a defense to immediate death, not a delayed or wasting death from starvation or deprivation—threats not enough, D wasn’t certain that the walk would cause immediate death, danger of death was remote o US v. Contento-Pachon (9th C. 1984) 856 D taxi driver in Colombia; a passenger proposed that he swallow coke balloons and bring them to US, D agreed to consider—didn’t approach police b/c thought they were paid off by drug dealers—later, told passenger that he wouldn’t do it but passenger threatened life of D’s wife and child D finally agreed to do it—129 balloons!—and was told that he would be watched the entire time, and death would result if he failed to follow instructions; D didn’t notify authorities in Panama (thought corrupt as well, didn’t want to put his wife in jeopardy); x-rayed in L.A. TC excluded duress defense—threat wasn’t immediate or inescapable AC reversed—D dealing with druglord, lots of money at stake—not vague threats of possible future harm; D’s evidence was sufficient to present a triable issue of fact—D must show no reasonable opportunity to escape (jury must decide whether someone in D’s position would not go to police); alternative was fleeing (jury must decide whether fleeing w/ a wife and 3 yr old to a place far away from druglords was reasonable avenue of escape) o Why did Contento-Pachon qualify for duress if threat wasn’t imminent if Ha couldn’t get S/D? maybe we are more willing to let foreign cops be corrupt then to let ours be unable to help; maybe being a drug courier is considered less evil than killing o Regina v. Ruzic (Canada 1998) 857 D traveled from Yugoslavia to Toronto w/ heroin strapped to her body; admitted to smuggling but claimed duress—a known killer had stabbed her arm and threatened to do something to her mother if she didn’t do it; she didn’t go to police b/c she didn’t trust them Canadian Criminal Code: a person who commits an offense under compulsion by threats of immediate death or bodily injury from a person who is present when the offense is committed is excused for committing the offense if the person believes that the threats will be carried out TC instructed jury on compulsion but (contrary to the statute) refused to specify that the threat had to be immediate, had to be made against D, and had to be made by a person present when offense was committed; P appealed AC upheld acquittal—restrictive conditions in duress statute violated §7 of Canadian Charter of Rights and Freedoms (everyone has the right to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance w/ the principles of fundamental justice If D was telling truth, then the threat left her no realistic choice, even if threat wasn’t immediate and the guy wasn’t present when she committed offense—to convict her would be to convict the innocent b/c her actions were morally involuntarily Contributory fault—what happens when D is in some way to blame for being in position of duress? o Gang membership—what if a D joins a gang only involved in petty theft but leader proposes to rob a bank and threatens D with death if he doesn’t participate—should D get duress defense if he does? ―Where a D voluntarily and w/ knowledge of its nature, joined a criminal organization or gang which he knew might bring pressure on him to commit an offense and was an active member when he was put under such pressure, he cannot avail himself of the defense of duress‖ (Regina v. Sharp); if D has no reason to suspect that he will be forcibly prevented from withdrawing from the gang and trouble materializes unexpectedly, the defense remains available (Regina v. Shepherd)
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Williams v. State (MD App 1994) 860 D involved with a gang of drug dealers; voluntarily made several drug runs from MD to NY 3 men kidnapped D and threatened to kill him if he didn’t reveal location of gang’s stash; D didn’t know where the stash was—brought them to apt of a 3rd party where they held the guy at gunpoint, searched his apt, tied him up and left w/o anything Ct held no duress b/c: (1) no one forced him to go to the house and demand money; (2) his own prior activity contributed to the predicament—his reckless involvement caused others to become aware of connection to gang; (3) the situation wouldn’t have occurred but for his association w/ the drug organization MPC Duress (2.09) 1046 o A/D that actor engaged in conduct charged to constitute an offense b/c he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist o A/D unavailable if D recklessly placed himself in a situation in which it was probable that he would be subjected to duress; or if D negligently placed himself there, whenever negligence suffices to establish the culpability for offense charged o No longer presumed that woman acting in presence of her husband is coerced o If conduct would be justifiable under §3.02, this section doesn’t preclude that defense o Comments 849 §2.09 is for cases where the actor cannot justify conduct under §3.02, i.e. choice involves an equal or greater evil than that threatened, but where he should be excused anyway b/c subjected to coercion When D so far overwhelmed by force that action is involuntary, see 2.01(1) ―situation‖ should be given same scope as in appraising recklessness and negligence—size, strength, age, or health OK but temper not OK o NOTE: no mention of immediacy, force only has to be unlawful (not deadly) o Why is the reasonableness standard less subjective for duress than it is for provocation? Provocation only mitigates, duress=total acquittal; don’t want to encourage breaking the law (SAME REASON PROVOCATION OK FOR MURDER BUT DURESS ISN’T) [not from Dolo]—provocation affects V, maybe V gets fault; duress can affect the innocent, who don’t get any of the blame o What is considered when determining the standard of reasonable firmness? Regina v. Cairns 851—D=short and timid man; shortness taken into consideration but timidity wasn’t Regina v. Bowen 851—D has low IQ, says he is more easily intimidated—court says that a low IQ, short of mental impairment/defectiveness can’t make those who had it less able to w/stand threat English Law Commission: threats against weak/disabled/immature more compelling than against normal/healthy person; these aspects are inseparable from D’s personality and may be a ―circumstance‖ that should be considered Zelenak v. Commonwealth (VA) 851—evidence of D’s mental state/multiple personality disorder should be included b/c influences her subjective fear Battered Woman’s Syndrome--can’t be used for S/D but disagreement about whether BWS evidence is relevant when woman claims duress as excuse for committing a crime under abuser’s pressure State v. Williams (NM) 851—mother convicted of child abuse for failing to protect her daughter from beatings from her abusive husband—should the criteria for claiming a defense be stricter when D has injured/killed innocent V rather than abuser? Factual question same for S/D and duress (reasonable fear of bodily harm) so same evidence should be considered—yes to BWS in duress o Problem: duress affects the innocent, not the abuser o
Insanity Background o Classic excuse—D did act but not culpable o Insanity at the time of the offense is usually a defense to a criminal charge; person who is insane can’t be tried, convicted, sentenced, or executed; a person who becomes insane in jail must be transferred to a mental hospital o Competency to stand trial 876 MPC: no person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as such incapacity endures
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CL (Dusky v. US) ―the test must be whether the D has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him Some courts have permitted forcible medication of Ds in order to render them competent to stand trial even though antipsychotic drugs affect D’s demeanor at trial; however, in Riggins v. Nevada, the court held that forcible medication was a violation of due process b/c P hadn’t shown that other means to render the D competent to stand trial were unavailable amnesia≠incompetency, but some courts say improper to hold trial if continuance may enable recovery Execution 876 PA Mental Act provides for the transfer to a mental hospital of any person detained in jail who is mentally ill (mental illness=an illness which so lessens the capacity of a person to use his customary self-control, judgment and discretion in the conduct of his affairs and social relations as to make it necessary or advisable for him to be under care Commonwealth v. Moon (PA 1955)—same test should be applied to determine whether to stay execution of a convicted murderer Ford v. Wainwright (US 1986) S Ct held that 8th Amendment’s proscription of ―cruel and unusual punishment‖ bars execution of the insane—but didn’t define insanity or say why Powell: prohibition based on (1) preserving D’s ability to make arguments on his own behalf (but says this is no longer a concern b/c unlikely that a D today could go to is death w/ knowledge of undiscovered trial error that may set him free); (2) cruel b/c humans value opportunity to prepare for death; also, death penalty loses its retributive force if D isn’t aware of penalty’s existence and purpose At least one court has held that the state may not subject an insane death-row prisoner to antipyschotic meds against his will in order to restore his sanity so he can be executed (State v. Perry); recurrent problem b/c meds are often used to treat mental disorders and up to 70% of death-row inmates are estimated to suffer some form of mental illness—choice for incompetent prisoner is continued insanity or death by execution Ford v. Wainwright—FL’s procedure of determining sanity of death-row inmates (evaluation by 3 psychiatrists) constitutionally inadequate b/c D must have an opportunity to present evidence and argument before impartial board independent board—FL changed procedure—de novo judicial review of sanity question Decision to raise insanity issue must be left entirely w/in D’s control—properly counseled D may prefer to be found guilty rather than not guilty by reason of insanity (b/c latter can lead to longer confinement, more intrusive treatment, or greater stigma) What happens to a D who has been acquitted on grounds of insanity [not guilty, can’t be blamed; but actions did harm and public demands protection]? Rely on processes for civil commitment—but standard of proof is high to protect idiosyncratic members of the public (which doesn’t seem to be as much of a concern when person has committed criminal acts—so many states have lower B/P in procedures for insanity acquittees) Other states have automatic and mandatory commitment for all insanity acquittees—provides protection to public and makes the defense more palatable to the public and jury Jones v. US—S Ct upheld constitutionality of mandatory commitment—noted D’s opportunity to demonstrate recovery at a hearing w/in 50 days of hearing—but one court noted the practical difficulties of requiring a patient to overcome effects of confinement, environment, incompetence, and debilitating effects of treatment In reality, initial commitment often becomes an indefinite one Problem w/ civil commitment—if a D is conditionally released (told to take meds) and commits another crime while off meds, can get insanity defense again if he can establish insanity at time of crime How long can the person committed be held? Sometimes for life b/c inmate must prove to a judge that he meets requirements for released before he is released; Jones S Ct held that an insanity acquittee subjected to automatic commitment could be held indefinitely Law in about 12 states is that acquittee cannot be held beyond max sentence of customary sentencing principles if he had been convicted unless P can then meet ordinary criteria for civil commitment (mentally ill + dangerous) on a clear and convincing evidence standard Response to concern that acquittee may be released too soon ―guilty but mentally ill‖—court retains same sentencing authority it has in cases of guilty verdicts, but if D is sentenced to prison he is to be given treatment for his mental illness; problem—likely to make an insanity acquittal less likely and make conviction of morally innocent people more likely
o
o
o
o
o
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o Should jurors be informed that not guilty by reason of insanity doesn’t mean D will be released? Most courts say no—what will happen to D is not relevant to whether D met insanity test Shannon v. US—S Ct said that the principle reflects basic division of labor in our legal system b/t judge (as sentencer) and jury (as fact finder); no reason to depart from assumption of law that jurors follow their instructions (even if some jurors will think Ds will be released) Some courts say yes—if jurors can be entrusted w/ responsibility for D’s life and liberty they are entitled to know what protection they and their fellow citizens will have if they apply law to evidence and find not guilty by insanity—injustice may occur when jury doesn’t have this info—jury may find D guilty just to keep him off the streets If yes, should jury be instructed when commitment isn’t mandatory? All jurisdictions create a presumption of legal insanity at trial How much evidence need be presented before effect of presumption disappears and the question of the D’s insanity becomes an issue that must be established by the evidence? Some states require ―some evidence‖; others require that the evidence raise a reasonable doubt about the sanity of the accused Where the issue must be established by the evidence, who bears B/P and how is it defined? About 12 states adhere to the once majority rule that P prove D’s sanity beyond a reasonable doubt; 38 jurisdictions place B/P on D to prove insanity by clear and convincing evidence (post-Hinckley) How do we show MD/D caused crime? Background of disorder, how disorder relates to crime
o
o Policy o Why do we have the insanity defense? If D doesn’t understand that what D is doing is wrong then D won’t be deterred If D is insane at the time of the crime D isn’t blameworthy—no need to punish D o Why is there a public notion that there is something wrong with having the insanity defense—why are people hostile to this defense if the above justifications are correct? Ds are escaping appropriate punishment Public has misconceptions about how often defense is used and how successful it is Public afraid it could be faked and killers would go unpunished (once acquitted, committed; show sanityreleased) Public afraid that murderers (who definitely committed the crime) will be back on the streets M’Naghten Rule o Case: D (M’Naghten) killed secretary to prime minister (meant to kill PM) b/c he was delusional; acquitted by reason of insanity [similar to duress—knew he was killing but thought it would be OK by society’s standards] o Elements of Rule Mental disease or defect (at time of crime) such that D didn’t know (a) nature AND quality of the act OR (b) wrongfulness of act o (a)—D didn’t know physical nature or physical consequences of act—cognitive error similar to mistake of fact—negatives mens rea—rare type of insanity case o King v. Porter (1933)—explained M’Naghten test, gave justification for rule The insane can’t be deterred—if they can’t understand what they’re doing or the ground upon which the law proceeds, they won’t be influenced by probability of punishment Most criminals are abnormal but are able to appreciate what they are doing as well as the threatened punishment of the law and the wrongfulness of their acts and are held in check by punishment of the law o Concern with the test is that it is too narrow—only covers cognitive (not volitional) deficiencies— pyromaniacs can’t invoke insanity b/c know nature + consequences of act and know it’s wrong o What are the alternatives? Irresistible Impulse Test [supplement to M’Naghten test] Elements o Had mental disease or defect which o Kept D from controlling his conduct Problems o How do we distinguish b/t impulses D couldn’t resist and those he didn’t resist? o Still too narrow Product/Durham Test [NH introduced in 1870, no one else used until DC circuit adopted in 1954—DC has since abandoned its use but NH still has] Elements o Product of [D wouldn’t have committed the act but for the disease] o MD/D [any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavioral control]
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Problems o Too much psychiatric control o But-for causation too expansive—possible that a chain of events would start with a delusion and end with a crime we wouldn’t want excused MPC—see below Meaning of Wrong State v. Crenshaw (WA 1983) 905 D was deported from his honeymoon in Canada b/c he was in a fight; secured a motel room in WA and waited for his wife; when she returned he thought she had been unfaithful Beat her unconscious, stabbed her 24 times with a stolen knife, decapitated her with a borrowed ax, wrapped her body in a blanket and put the head in a pillowcase and put both in V’s car; borrowed a bucket and sponge to clean room of blood and fingerprints and then had a beer with the motel manager before leaving Hid the body in brush, enlisted help of hitchhikers to dispose of the car (who turned him in); voluntarily confessed to the crime when apprehended At trial D testified that he followed Moscovite religious faith and it would be improper for a Moscovite not to kill an unfaithful wife; D also had history of mental problems Jury rejected insanity defense and found D guilty of M-1 On appeal, D contending that TC erred in defining ―right and wrong‖ as legal right and wrong rather than in the moral sense In past, WA has said that when M’Naghten is used, all who might possibly be deterred from commission of criminal acts are included w/in sanctions of the criminal law—only those who have lost contact w/ reality that they are beyond the influences of the criminal law may have the benefit of the insanity defense in a criminal case TC justified in giving instructions b/c o could assume that one who knew the illegality of his act wasn’t necessarily beyond any influences of the criminal law o in this case legal wrong is synonymous with moral wrong—it is society’s morals, not the individual’s, that are the standard for judging moral wrong under M’Naghten D knew his actions were wrong according to society’s standards as well as legally wrong; personal belief that it was his duty to kill his wife can’t exculpate him from legal responsibility Narrow exception to societal standard is when party believes he the act is ordained by God; following the Moscovite faith isn’t the same as acting under a deific command Several jurisdictions, in accord w/ Crenshaw, hold that an insanity acquittal requires that D was unaware his conduct was legally wrong; knowledge of the law will be sufficient to defeat any M’Naghten claims in these jurisdictions Other jurisdictions say wrong=morally wrong If a D is aware that his crime was illegal, wouldn’t he be deterrable (and not fall under justification for insanity defense)? Delusions prevent calm judgment and reasoning such that the insane don’t know they are doing something wrong (by the everyday standards of reasonable people) A person in an extremely psychotic state might be aware that an act is prohibited by law but due to the effect of psychosis may be w/o capacity to comprehend that the act is inherently immoral; however, a mentally ill person who has the capacity to distinguish right from wrong and is aware that an act is morally wrong but doesn’t know it is illegal, should still be responsible—ignorance of the law is no excuse §4.01 (1055) a person isn’t responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law ―mental disease or defect‖ don’t include an abnormality manifested only by repeated criminal or otherwise anti-social conduct Blake v. US (5th C. 1969) 885 D charged with bank robbery; defense was insanity at the time of the offense but he was convicted—appealing the definition given to the jury of not guilty by reason of insanity D had spent much time in psychiatric institutions, received shock treatment, was a heavy drinker; shot his wife but sent to mental hospital; his adult life had been ―one long round of confinement for mental problems and drinking when not confined‖ Robbery: went to a DC in FL seeking a writ of habeas corpus, stopped at a bar (where he told a waitress he would be back later w/ lots of money, said ―that’s possible‖ when she asked if he
o
MPC o
o
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planned to rob a bank), demanded money at the bank and got away; went to same court the next day and was arrested for the robbery Psychiatric testimony that Blake was a schizophrenic and had robbed in a psychotic episode DC used the Davis standard (887), which requires a complete lack of mental capacity MPC standard only requires substantial lack of capacity—Ct holds that this type of standard is called for in light of current knowledge regarding mental illness Follow 2nd and 7th Circuits—replace criminality w/ wrongfulness in order to include cases where D appreciated that his conduct was criminal but b/c of a delusion believed it morally justified MPC commentaries M’Naghten rule is right as far as it extends—those who suffer from delusions need restraint but condemnation is meaningless + ineffective But M’Naghten rule has its shortcomings—centers on knowledge (which keeps it from being applied to emotional abnormalities) and ignores cases where mental disease/defect destroys D’s power of self control Thus, MPC rule is based on the view that a sense of understanding broader than mere cognition (appreciate rather than know), and a reference to volitional incapacity should be achieved directly in the formulation of the defense (substantial incapacity rather than utter incapacity—feel that there is a continuum rather than on/off switch) Substantial is open-ended but law is full of issues of degree—negligence/recklessness US v. Lyons (5th C. 1984) 890 D indicted on 12 counts of knowingly and intentionally securing controlled narcotics; he offered evidence that he was a drug addict and that his brain had been affected as a result to the point where he lacked substantial capacity to conform his conduct to requirements of law TC excluded evidence, D was convicted Drug addiction on its own (w/o other physiological or psychological involvement) raises no issue of MD/D but brain damage is MD/D—TC should have submitted evidence to the jury Ct w/draws its recognition of the volitional prong (but D can offer evidence in an attempt to satisfy the cognitive prong) Conclusion in adopting Blake standard was premature—don’t feel that a lack of capacity to conform one’s conduct to law’s requirements comports with current medical and scientific knowledge Hold that a person isn’t responsible for criminal conduct on grounds of insanity only if at the time of that conduct, as a result of MD/D, he is unable to appreciate conduct’s wrongfulness Majority of psychiatrists now believe that there is no objective basis for distinguishing b/t the undeterrable and those merely undeterred, b/t impulse that was irresistible and the impulse not resisted, or b/t substantial impairment of capacity and some lesser impairment Risks of fabrication and moral mistakes in administering the insanity are greatest when experts and jury are asked to speculate whether the D had the capacity to control himself or whether he could have resisted the impulse Testimony regarding volition more confusing to jurors than testimony regarding cognition; moreover, most psychotic persons who would fail a volitional test would also fail a cognitive test—volition test superfluous Impossible to prove beyond a reasonable doubt w/ murky state of medical knowledge Don’t want cases decided on basis of most convincing testimony about ―unknowable‖ Dissent Guilty verdict=moral judgment that D is blameworthy; acquittal by reason of insanity is a judgment that D is unable to make an effective choice regarding his behavior Majority accepts these principles but narrows defense on policy considerations: o Potential threat to society created by volitional prong of the insanity defense Public opposes the defense b/c it thinks plea is frequently invoked for fraudulent use—think lying Ds are soon set free to prey on community Frequency and success rate of the defense are grossly overestimated by professionals + lay persons—plea rarely made and rarely successful; truth is that acquitee remains hospitalized for a long time o Juries are confused and manipulated by vagueness of legal standards and ―battle of the experts‖; produces inconsistent and inaccurate verdicts Most cases involving insanity plea are plea-bargained; most cases that do go to trial—psychiatric testimony is presented by deposition w/o disagreement or opposition; however, when a contest does develop, D usually convicted No evidence for the manipulated-jury argument
o
o
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Defense can’t work—no useful expert evidence This doesn’t preclude question of whether D ought to be held accountable for his behavior Inquiry under either branch of the insanity defense is a subjective one that focuses on D’s state of mind; duty to undertake inquiry isn’t based on confidence in expert testimony but on the ethical rule that D’s mental state is a crucial aspect of his blameworthiness Availability + value of expert testimony are evidentiary problems that can be accommodated w/in existing test Majority’s rule is certain to result in conviction of at lease some who are not morally responsible and punishment of those for whom retributive, deterrent, and rehabilitative penal goals are inappropriate; public opinion that guilty go free shouldn’t serve as the basis for judicial decision making—misconstrues meaning of guilt—when a D is properly acquitted by reason of insanity under control test, guilty doesn’t go free Comments 894 Pre-Hinckley, about ½ states and all but one US App Ct had adopted MPC test When Hinckley was acquitted by reason of insanity under the MPC test, there was public outrage at the test Several states returned to M’Naghten rule (but a substantial minority still adhere to MPC) Comprehensive Crime Control Act of 1984—Congress enacted a provision that supercedes Lyons decision and narrows test even further: A/D that D at time of crime, as a result of severe MD/D was unable to appreciate nature and quality or wrongfulness of his acts; MD/D doesn’t otherwise constitute a defense ABA and APA standards both reject control branch but retain cognitive branch As dissent in Lyons noted, use + success of defense overestimated—nationally, insanity acquittals probably represent no more than 0.25% of terminated felony prosecutions; overall success rate virtually identical pre- and post-Hinckley o
o
SENTENCING Sentencing guidelines: based on nature of crime + background of D; sentencing used to be discretionary and unreviewable, now sentences are more uniform but higher prison pop and more litigation (Both P and D will challenge judge’s determination of severity of crime) Rummel established proportionality principle but his sentence of L/I for a bad check was OK b/c of his background Harmel was given L/I for 1st offense—possession of coke—ct held that grossly disproportionate sentences aren’t valid but his sentence didn’t qualify CA only state that allows for L/I for nonviolent crimes (3 strikes rule) Challenges of proportionality didn’t work—now need to turn to legislative processes o BUT, don’t want to appear soft on crime, want people to feel protected; bad policy to tell people they need this legislation to be safe and then take it away Prison population has increased almost 7-fold since 1970; blacks 50% of prison pop (but 15% general pop) D needs to be competent to be executed; state can only forcibly medicate if there is a medical interest—state needs to show long-term interest (short-term interest of execution not OK) Can’t execute retarded either; juveniles next to be outruled
The Death Penalty Current Context o 500 executions 1977-1998; pace of executions has accelerated significantly in recent years o 1998—over 3000 death row inmates; juveniles and women a minority, minorities over-represented o Public support for death penalty remains high despite recent fluctuations (support dropped in response to media attention to innocent men who had been executed) o Support also declines when compared to life in prison w/o parole o Majority (2/3) of executions come from TX, FL, LA, Missouri, and VA Policy Considerations o Deterrence Many opposed to death penalty reject it as immoral even if it were known to deter; many supporters consider it morally appropriate regardless of its deterrent effect Sellin 485—death penalty has failed as a deterrent b/c impossible to distinguish homicide death rates b/t states w/ and w/o death penalty—no influence on rates of capital crimes Van den Haag 485—Just b/c deterrence hasn’t been demonstrated statistically doesn’t mean non-deterrence has been; offenders are probably not aware when/where death penalty exists
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(so no less likely to kill in specific places) but death penalty can still serve as a general deterrent Bedau 486—all relevant factors need to be considered—severity, facility, celerity, and reliability w/ which punishment can be inflicted—D/P + L/I differ in more than just severity Ehrlich study 486: used complex techniques and did find a significant correlation b/t D/P and deterrence of homicide—conclusion: each additional execution from 1944-1967 may have saved 8 lives Lempert 487: Problems with Ehrlich’s study evidence that possibility of D/P makes it harder to convict—if presence of D/P were to reduce conviction rate for homicide by 17% then it would be counterproductive— probably doesn’t reduce this much but might reduce to point where tradeoff b/t lives saved and executions would have different policy implications w/o measure of probability of life sentences, study fails to address whether executions deter more than prison sentences for life when data from 1965-1969 are eliminated, impact of execution on crime rate no longer statistically significant; sensitivity of results to time destroy theoretical underpinnings of his approach (deterrent effect shouldn’t change w/ time) body of research overwhelmingly favors conclusion that executions don’t deter Recent review based on claims that D/P deters homicide (b/c of its severity) and claims that it encourages homicide (b/c brutalizes society)—evidence supports neither [even when D/P was in greater use and delay b/t crime and execution was shorter, D/P didn’t deter]; analyses by a number of other economists have failed to confirm Ehrlich’s findings Error, irrevocability and inequality Bedau 488 most conclusive evidence that innocent are condemned to death row under modern death sentencing procedures comes from the surprisingly large # of people whose convictions have been overturned and who have been released from death row might convey a reassuring impression that although mistakes are made, system of appeals and reviews will ferret out such cases B4 execution—true in a sense BUT, many of these men were found innocent despite the system and only as a result of extraordinary efforts not generally available to death row Ds—sometimes only luck Most releases from death row came after many years and many failed appeals; after trial, appeals are over procedural issues rather than a reexamination of guilty Investigation of innocence ends after execution; likely that a substantial number of inmates are innocent and high risk they will be executed; once execution occurs, error is final Van den Haag 489 Many social policies have unintended effects that are statistically certain, irrevocable, unjust, and deadly—traffic, surgery, medicine—so does D/P Justified activities b/c benefits are felt to outweigh statistical certainty of unintentionally killing innocents; certain death of innocents argues for abolishing the death penalty no more than for abolishing surgery or automobiles Injustice justifies abolition only if losses to justice outweigh gains—if innocent victims of future murderers are saved by virtue of D/P imposed on convicted murderers, it must be retained even though some innocents will be lost through miscarriages of justice—as long as more innocent lives are saved than lost In addition to cases of innocence IDed by Bedau, DNA testing since 1996 has definitely exonerated 63 convicted Ds (including 8 on death row); problem: most states only allow a brief period for presenting newly discovered evidence (1999—NY and IL only states that afforded a right to conduct post-conviction DNA testing in cases concluded B4 test available) Conflicting conclusions—show less room for mistakes but also hints at number of innocents on death row who don’t have the DNA option IL—13 death row were prisoners were exonerated—governor (D/P supporter) put a moratorium on executions (didn’t sign death warrants) and then commuted sentences before he left office Another problem is inadequate legal representation—lawyers appointed to defend poor often insufficiently competent or committed and the system of post-conviction review may be inadequate to identify miscarriages of justice that occur through poor lawyering at trial Racial bias in administering death penalty The sanctity of human life Clark 491—murder and D/P aren’t opposites that cancel each other but similars that breed their kind—thou shalt not kill loses its force when the state itself kills; D/P is barbaric and has no place in our civilized society; killing the criminal won’t undo crime, prevent other crimes, or bring justice to the victim, criminal or society; executions cheapen life
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Van den Haag 492—life becomes cheaper as we become kinder to those who take it; if life is to be valued and secured, it must be known that anyone who takes the life of another forfeits his own; abolition of D/P will be perceived symbolically a loss of nerve Ethical arguments based on sanctity of life are closely related to concepts derived from specifically religious sources—D/P has been part of all major religious traditions—however, many American religious denominations have officially condemned D/P on religious grounds Constitutional Limitations o At common law, all murder was punishable by death; today, we have discretionary standards for D/P Problem: racial discrimination (by race of V not D) o Litigation challenging punishment scheme focused on 2 issues Procedural due process Unguided discretion to make a choice b/t life or death was thought to violate due process—it was thought that guidelines were needed McGautha v. California (US 1971) 493—allowing jury full discretion wasn’t offensive to constitution—attempt to catalog failures could inhibit rather than expand the scope of consideration; variety of cases would make general standards meaningless or unnecessary (b/c obvious) Cruel and unusual punishment A year after McGautha, S Ct held in Furman v. Georgia that capital punishment as then administered violated 8th Amendment’s prohibition of cruel + unusual punishment but didn’t set forth reasoning (plurality opinion) o Brennan + Marshall concluded that all capital punishment was unconstitutional (public needs to be informed if are expected to make a judgment on this); Douglas stressed potential for discrimination; Stewart said cruel + unusual b/c random; no basis for selection; 8th and 14th amendments can’t tolerate infliction of D/P when it is so wantonly and freakishly imposed o Dissenters (Scalia) stressed tradition and acceptance of D/P and argued that majority’s position involved an unwarranted intrusion into legislative process o No majority agreement on reasoning—2 types of alternative legislation appeared Mandatory capital punishment in certain cases Establishing guidelines to determine who would be subjected to D/P Argument against evolving standards of decency—obviously standards haven’t evolved or legislature wouldn’t keep passing statutes o New challenges Gregg v. Georgia (US 1976) D convicted by a jury on 2 counts of armed robbery and 2 counts of murder; jury posed D/P on each count; GA S Ct upheld D/P for murder but not armed robbery Punishment of death doesn’t invariably violate the Constitution; Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society—assessment of contemporary values is relevant Penalty must also accord w/ dignity of man—must not be excessive o Punishment must not involve the unnecessary and wanton infliction of pain o Punishment must not be grossly out of proportion to severity of the crime Courts’ role is limited—must insure that constitutional bounds aren’t overreached, judges can’t act like legislators—presume validity—can’t require the legislature to select the least severe penalty possible as long as punishment isn’t cruelly inhumane or disproportionate to the crime involved; can’t attack judgment of people’s reps History and precedent say that D/P isn’t per se unconstitutional—turn to society o Evident that large proportion of society regards it as an appropriate and necessary criminal sanction o Reluctance of juries to impose D/P show that they reserve it for extreme cases, not that they reject D/P per se Does D/P comport w/ basic concept of human dignity? o Can’t invalidate b/c a less severe penalty would serve same means but must examine penological justification Expression of society’s moral outrage at offensive conduct—retribution is essential in an ordered society that asks its citizens to rely on legal system rather than self-help Value of D/P as a deterrent is factual issue to be determined by the legislature—better to evaluate worth of statistical studies Also consider whether D/P is disproportionate to crime for which it is imposed—when a life has been taken deliberately by an offender, death isn’t invariably disproportionate to the crime—extreme sanction suitable to most extreme of crimes
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D/P can’t be imposed under procedures that create substantial risk it will be arbitrarily inflicted—best served with a bifurcated proceeding at which the sentencer is apprised of info relevant to imposition of sentence + given standards to guide its use of info GEORGIA PROCEDURE—OK by Furman standard, S Ct upheld conviction o All persons convicted of murder shall be punished by death or by imprisonment for life; D/P can only be given if jury finds one of 10 statutory aggravating circumstances (497) beyond a reasonable doubt o Jury can also consider any other appropriate aggravating/mitigating circumstances; can make a binding recommendation for mercy for any reason but must find a statutory aggravating circumstance before recommending D/P o Procedures satisfy concerns of Furman There is a meaningful basis for distinguishing cases where D/P is imposed from cases where it isn’t Decision to afford an individual D mercy doesn’t violate Constitution— Furman only held that the decision to impose D/P had to be guided by standards so sentencer would focus of particularized circumstances of D and crime Dissent o D/P isn’t necessary as a deterrent o D/P not necessary to prevent Americans from taking the law into their own hands—imprisonment doesn’t encourage self-help any less than D/P Now the standard in most states Woodson v. NC (US 1976) 499 Mandatory death sentence for any 1st degree murder violates 8th amendment b/c o Inconsistent w/ contemporary standards of decency o Fail to provide standards will effectively guide the jury o Fundamental respect for individual dignity underlying 8th Amendment requires particularized consideration of relevant aspects of the character and record of each convicted D [and circumstances of the offense] before imposing D/P Sumner v. Shuman (US 1987): D killed fellow prisoner while serving L/I sentence; murder conviction in this situation required mandatory D/P but S Ct held unconstitutional-prior conviction of an offense carrying a life sentence provided insufficient info about seriousness of present killing, D’s leadership role in its commission, or mitigating circumstances that might fall short of complete defense Jurek v. Texas (US 1976) 500 Post-Furman statute limited D/P to 5 categories of homicide; jury then answers 3 questions: (1) whether conduct done deliberately and w/ reasonable expectation of causing death; (2) whether there is ―a probability that D would commit criminal acts of violence that would constitute a continuing threat to society‖; (3) if raised by the evidence, whether D’s conduct was unreasonable response to V’s provocation If yes to all 3D/P; if no to anyL/I Ct upheld statute in a plurality opinion—5 categories equivalent to aggravating circumstances (Gregg), mitigating circumstances considered in #2 Didn’t clarify how an unguided jury could make a rational response to broad and ambiguous #2 but concluded that system assures D/P won’t be wantonly or freakishly imposedConstitutional o Paradox: considerations that would normally mitigate offenses (past abuse) make it more likely that #2 will be answered affirmatively Lockett v. Ohio (US 1978) 501 Post-Furman statute—once any of 7 aggravating circumstances was found, D/P must be imposed unless it is found that (1) V had induced or facilitated offense; (2) it was unlikely that D would’ve committed the offense but for the fact that he was under duress, coercion, or strong provocation; (3) offense was primarily the product of D’s psychosis or mental deficiency S Ct struck down statute, but varied in its reasoning Narrow range of permissible mitigating circumstances is a fatal flaw—sentencer must not be precluded from considering as a mitigating factor any aspect of a D’s character or record and any of the circumstances of the offense that D offers as basis for no D/P Tension: Furman says standard can’t be too loose, Lockett makes it looser Too much discretion=arbitrary; rigid rule=against 8th Amendment; turn to guided discretion Post-Lockett decisions 501 Eddings v. OK (US 1982): D (16 at time of crime) had a history of abuse; state statute permitted consideration of any mitigating circumstances but sentencing judge only
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considered youth—ruled family background and emotional disturbance irrelevant as a matter of law; S Ct held that evidence of D’s background couldn’t be ruled irrelevant and sentencer must give some consideration to it—a consistency produced by ignoring individual differences is a false consistency Skipper v. SC (US 1986): Ct held it impermissible to exclude evidence regarding D’s good behavior in jail while awaiting trial; Dissent—evidence has little probative value given incentives for good behavior under the circumstances Penry v. Lynaugh (US 1989): D suffered from brain damage, mental retardation, and abuse—mitigating evidence that was admitted at trial but under TX scheme, judge required to impose D/P when answers yes to #2; S Ct held that the narrow focus of jury’s inquiry under TX scheme violated Lockett by preventing jury from considering retardation and abuse as mitigating factors and by precluding a ―reasoned moral response‖ to the mitigating evidence Graham v. Collins (US 1993) limited Perry; D relied on evidence of his youth, family background and positive character traits for mitigation but jury could only consider this evidence w/in narrow scope of #2; Ct held that Lockett wasn’t violated b/c D had been permitted to place his mitigating evidence before jury and that his evidence (unlike Penry’s) had mitigating relevance on #2—Penry didn’t suggest invalidity of TX special issues framework Crimes other than intentional murder Coker v. Georgia (US 1977)—Ct held that D/P is grossly disproportionate and excessive punishment for crime of rape and violates 8th amendment; rape is w/o doubt deserving of serious punishment, but in terms of moral depravity and of the injury to the person and to the public, it doesn’t compare with murder Ct hasn’t yet considered constitutionality of capital punishment for espionage/hijacking Felony murder o Enmund v. Florida (US 1982)—evidence suggested D waited in a getaway car while 2 co-felons robbed and murdered an elderly couple; D found guilty of murder and sentenced to death; S Ct held that 8th Amendment prohibits D/P for Ds who do not kill, attempt to kill or intend that a killing take place or that lethal force will be employed; fundamental that causing harm intentionally must be punished more severely than causing the same harm unintentionally o Tison v. Arizona (US 1987)—2 brothers helped their dad escape from prison (serving time for killing a prison guard in a previous escape attempt); in the course of the escape, decided to steal a car—while Ds were getting water, the dad killed all 4 passengers of the car they had stopped; Ds convicted of murder and sentenced to death—had supplied weapons to their father knowing of his willingness to use lethal force; S Ct upheld sentence—major participation in the felony committed, combined w/ reckless indifference (equivalent to intentional killing under moral standards and MPC) to human life, is sufficient to satisfy Enmund culpability requirement o Implied in Tison that a felony murderer who actually killed could be executed even if killing accidental—CA S Ct held in People v. Anderson Callins v. Collins (US 1994)—S Ct refused to review D’s death sentence Blackmun’s dissent o No combination of procedural rules or substantive regulations ever can save D/P from its inherent constitutional deficiencies; giving up on D/P o Tension b/t need for fairness to the individual and consistency (Furman) o Constitution requires a heightened degree of fairness to the individual and a greater degree of equality and rationality in administration of death—demands sentencer discretion that is at once generously expanded + severely restricted o Decision whether a human being shall live or die is so inherently subjective that it inevitably defies rationality and consistency required by Constitution Scalia’s concurrence o 5th amendment: no person shall be held to answer for a capital crime unless on indictment of Grand Jury nor be deprived of life w/o due process o clearly permits D/P to be imposed and establishes beyond doubt that the D/P isn’t prohibited by 8th Amendment o Lockett and Furman incompatible b/c Lockett bad decision Additional considerations Cognitive development of juveniles Diplomacy
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