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Criminal Law

Givelber

Mission this week: learn to log in to Westlaw. Go to TWEN, Criminal Law Givelber. Course home-page (currently has syllabus).

January 16: class will be 1:45-3:15pm.

Criminal law in this country is statutory, but instead of learning specific state law, learn the Model Penal Code (cb1165 or cs141). Need to know how model penal code applies to every situation, need to read it long before final exam. Read relevant sections through cases.

Differences between Criminal Law and Civil Law

• Criminal law is 'public law' (v. 'private law': civil procedure, property, torts). Crimes are committed against the state, not individuals. All criminal cases are State, Commonwealth, US, etc., v. Individual. Initiating party is always governmental unit.
• Government employees initiate, prosecute, investigate, sentence, etc.. Thus more of a presumption of guilt. Criminal procedure can't quite mirror civil procedure. Can't rely on 'unbridled adversariness' to get to fair conclusion. In civil procedure, settlement is a fine conclusion. Maybe not accurate, but ends case. Gave parties 'day in court'. Can't use this standard in criminal law (e.g., 'Sure the defendant didn't do it, but they were willing to accept a judgment.').
• State alone can initiate criminal case legally.
• Federal system and many states: prosecutor shares power of initiating case with grand jury.
  • Theoretically selected same way as jury. Randomly picked citizens.
  • sit on grand jury for a period of time--a few weeks.
  • Grand jury presentations tend to be short.
  • Grand jury can be viewed as shield or sword. Shield: needs to decide that the state has enough evidence that defendant committed crime before allowing person to be charged. Sword: grand jury is only investigative power that can require people to talk. Prosecutor, police officer can say 'you have to talk to me', but refusing to talk is not a crime, unless refusal is to grand jury.
  • Typically majority vote.
  • Grand jury entitled to hear evidence presented to suggest defendant committed crime.
  • One party only presentation--just prosecutor's case.
  • Grand jury issues indictment, needs to specify which law the defendant allegedly broke.
• Parallel system: bail, designed to insure defendant is present when indictment is issued.
• First big break between civil procedure and criminal procedure is in discovery: discovery is much more limited in federal criminal proceeding.
  • Defendant doesn't have to say anything ever. 5th amendment gives all citizens right to not incriminate themselves. Interpretted to mean defendant doesn't have to say anything.
  • No discovery of prosecutor; rationale is that defendant already knows anything since 'they did the crime'.
• Almost never have trials: 15 out of 16 people convicted are convicted through guilty plea. 80% of cases that go to trial end in convictions. 98% of cases that go to judgment end in guilty verdicts. 20% of those indicted don't actually make it to judgment, though.
• US criminal justice system has longest sentences in the world.
• Jury System
  • 6th amendment guarantees jury trial for those who do not plead guilty. Defendants can confront witnesses against them, can present defense, need unanimous verdict beyond reasonable doubt (does not need to unanimous in all states).
  • All evidence supposed to be public (v. military tribunal--evidence not provided to defense). Thus, some cases are dismissed because prosecution does not want to reveal where information is coming from.
  • Voir dire: explaining case to jury, finding out if they know anything about the case and if there is any reason they can't serve and do justice. Used to be that goal was to find people who were familiar with the case; now goal is to find group completely ignorant of case.
  • After case has been presented, judge tells jury 'the law'. Gives them the statute and then expands on what it means. Juries learn law very briefly in instructions.
• If jury acquits, state cannot appeal. If jury convicts, defendant can appeal. Defendant almost always appeals because state provides lawyer if necessary. This course exams appeals primarily, focusing on jury instructions.
• Civil case--goal is 'to be made whole', money damages. Criminal case--punishment. Only type of law whose purpose is punishment. Every criminal case is failure of criminal law. Criminal law has made threats as to what happens if you violate law; once law is violated need to figure out what to do.
• Assumption that all crimes are in statutes. No 'common law crimes'--can only punish those who could have found out ahead of time that their conduct was a crime.
• Can only punish someone for something they have done, not for something they have thought of doing. Criminal law is supposed to be exclusively concerned with conduct undertaken with a certain state of mind.
• Why punish? Two competing notions.
  • Prevent person from doing act again (specific deterrence), or prevent others from committing crime. Utilitaritarian justification for punishment. Not actually so important that defendant be guilty for general deterrence.
  • Retribution. Independent of utility, punishment is morally appropriate response to person's act. If you accept this justification, then all punishments can be justified, including capital punishment. Can also limit the extent of criminal punishment by calling for an appropriate response to crime committed (e.g., drug cases--low acting actors in drug war seem to receive disproportionate punishment to their harm).
  • Incapacitation. Doesn't matter whether punishment will deter anyone; if defendant is imprisoned for five years, won't commit crimes ('Rudy Guliani vision'). Not really incapacitation, actually isolation. Can still commit crimes against fellow prisoners. (also utilitaritarian justification)
  • Education. Supposed to teach all of us what is forbidden.
  • Rehabilatation. Almost never hear this justification any more--used to be common justification. "Penitentiary" -- penitent, supposed to make you think about your crime, and through thinking, become better person.

Assignment for tomorrow: read 'the criminal act' in casebook.

Thursday, January 3, 2002

(Tuesday's Row: Adam to Carrie (front left))

Requirement of an Act

• Three Topics
  • What is an act
  • What is an omission
  • Questions of voluntariness

In theory, cannot be punished for thought alone. Requirement of a voluntary act.

Material in 111-136 might be worth rereading at a later date.

Proctor v. State

[176 P. 771]

• Proctor is in possession of building, tells someone that he will sell liquor in building.
• No problem with law prohibiting sale of alcohol.
• Statement of future intention to do something may not constitute action.
• Court could have held that statute was not violated but instead held that statute was not constitutional. No difference between person thinking they will sell alcohol and saying they will sell alcohol.
• Could argue that criminal justice system should always require resulting harm; in this case, there was no result. U.S. system does not always require result, however.
  • Conspiracy, for example, does not require result. 20th alleged 9/11 bomber is on trial for agreeing to commit crime although they never did cause harm directly.
• Statute prohibits possession with intent. Court holds statute unconstitutional because it punishes thought alone, since only act is act of possession.
• Palmer case: what if police arrest someone in backyard with robbery tools (chisel and large screwdriver) in Washington under statute which prohibits possession of lock-picking tools under circumstances evincing criminal intent.
  • If this took place in Oklahoma, would it be constitutional? Does criminalizing possession of lock-picking devices equal criminalizing possession of building with intent to sell liquor?
  • Difference is in circumstances. Oklahoma Statute could be applied to thought alone. Washington Statute criminalizes possession with intent, requires objective circumstances to demonstrate what intent was.
  • Act requirement goes beyond possession, but includes possession in circumstances.
  • Under statute, someone who is not mechanic etc. who possesses tools is prima facie evidence of intent to commit crime.
  • This case holds that statute is fine because defendant can offer defense. Statute might not be legal today (for reasons of presumption).
  • Courts are more likely to come to this conclusion (possession with intent statutes are legal).

Possession

At least some courts will hold possession on premises which you control to be illegal possession. Modal Penal Code would require 'awareness of control thereof for a sufficient period to have been able to terminate his possession.' Article 2, Section 2.01 (4).

Would probably come down to how much owner of premises tried to stop person from possessing illegal substance on premises.

Omissions

Basis for illegal omissions: pre-existing relationship between defendant and victim, contract, taken action towards victim, or statutory requirement.

Jones v. US

[308 F.2d 307] 1962 US Court of Appeals

• Typical situation is woman is charged with failure to prevent man from murdering/abusing child.
• cb1201, Model Penal Code 210.1, Criminal Homicide when person purposefully, knowingly, recklessly or negligently causes death of another human being.
  • MPC does not spell out 'act portion' of crime; whatever it takes to cause death is sufficient to constitute murder. Under this standard, an omission can constitute crime when there exists a duty which is not fulfilled.
  • Question is did the omission (breach of duty) cause the effect?
  • Need to believe that failure to act is analogous to acting to cause harm in these cases.

Voluntariness

State v. Newton

[340 N.Y.S.2d 77] 1973 Supreme Court of NY (cb125)

• Defendant possessed gun on airplane, airplane landed in NY when defendant became unruly, where possession of gun was illegal.
• Defendant did not voluntarily go to New York, thus court considers this to not be an act.
• Two possible arguments for conviction:
  • One could argue that defendant voluntarily became unruly, set off chain of events that lead to presence of New York.
  • Argue that statute was violated regardless of defendant's action (don't worry about mens rea).
• Every crime carries state of mind requirement, many elements of crime carry state of mind requirement.
• Negligent state of mind: a reasonable person would have foreseen that plane would land in nearest location when starting disturbance.
• Most courts would not find Newton's unruliness to be voluntary cause of possessing firearm in New York; on the other hand, hunter who mistakenly gets on bus to New York instead of Maine and ends up in New York with firearm probably would be convicted.

Martin v. State

[17 So. 2d 427] 1944 Alabama Court of Appeals (cb127)

• Police bring drunken man outside of house and then arrest him for drunken condition and boisterous/indecent conduct in public place.
• Court holds that, since man did not appear voluntarily, he did not commit crime.
• Counterargument: although he did not appear voluntarily, he choose to commit boisterous conduct once outside.
• Police may have taken action because they were not able to arrest man for crime they did not see (domestic violence, for example).
• Court of appeals does not hold act to be voluntary.

People v. Grant

[360 N.E.2d 809] 1977 Appellate Court of Illinois (cb128)

• Man claims act of using parking meter to kick police officer in face is not voluntary act--claimed that he behaved without consciousness. Did not kick officer because of epilepsy but because was not conscious of act, thus did not commit crime.
• Similar to Huey Newton's claim that he shot police officer while in shock after being shot in stomach, no voluntariness.
• Court remands, directions should have included language about involuntary acts (not having to do with insanity).

Tuesday, January 8, 2002 (Class 3)

People v. Grant

[360 N.E.2d 809] 1977 Appellate Court of Illinois (cb128)

• Model Penal Code (cb1205): person is guilty of assault if he attempts to cause or purposely, knowingly or recklessly causes bodily injury to another.
• How do we determine intent? Grant has not testified in this case. Intuitively, we would think person intentionally acted based on what they did.
• Grant claims he suffers from psychomotor epilepsy and thus conduct is involuntary.
• Lower court judge gave jury instruction that if defendant was insane, then he can be found not guilty. Generally insanity defense does not mean the person did not intend to do what they did, but that they did it because of a mental defect.
• Grant is not claiming that he was insane under this understanding. For Grant, this was not a mental disease but a physical disease.
• Even if correct instructions were given, jury could still find defendant guilty. It is not required that every act be voluntary, but just that some act be voluntary. For example, by drinking intentionally the defendant may have provoked the epileptic attack. See MPC 2.02(c):
  • Recklessly. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.

Robinson v. California

[370 U.S. 660] 1962 Supreme Court of the United States (cb136)

• California statute prohibiting being addicted to narcotics.
• Supreme court finds statute unconstitutional.
• One explanation: addiction is a disease, person has no control, thus cruel and unusual punishment to criminalize addiction.
• What about issue of people who became addicted involuntarily/voluntarily?
• Justice Harlan: Problem is not the status crime, but that it punishes the mere propensity to use drugs. I.e., addiction is equivalent to desire, and we can't punish desire alone.
• Lower court's instruction would convict Robinson regardless of behavior; all he had to do was be addicted to drugs while in the State of California.
• Justice White, dissents: Obvious that defendant was using drugs while in the State of California.

Powell v. Texas

[392 U.S. 514] 1968 Supreme Court (cb139)

• People had read Robinson to mean that you couldn't arrest people just for being drunk.
• One of very few cases where Marshall was writer and in favor of conviction.
• Powell not being punished just for status of being alcoholic, but for voluntarily choice of giving in to alcohol in public.

Pottinger v. City of Miami

[810 F. Supp. 1551] 1992 Southern District of Florida (cb141)

• Court held that homelessness was status, thus could not be criminalized.
• Civil Rights Action, not criminal case.
• Not compelling authority, never appealed to Fifth Circuit.

Johnson v. State

[602 So.2d 1288] 1992 Florida Supreme Court (cb143)

• Mother was accused of delivering narcotics to baby through umbilical cord after it was born but before cord was cut.
• Statute being invoked is general drug statute, legislature never considered situation of delivery through umbilical cord. Court finds later legislative history on different topic saying they don't want to criminalize mothers. Also suggests that legislature would have specified this method of delivery if they had wanted to criminalize it. Dangerous reasoning, though, to suggest that because legislature did not specifically prohibit an activity they didn't mean for it to be covered by other statutes.
• Other argument: mother had no way of knowing when 60-90 second period of transfer would occur, couldn't have intentionally timed drug use so that drug would be delivered at moment of delivery. I.e., no mens rea (no intent).
• Issue of whether person acted recklessly--could argue that although it was not intentional, it was reckless.
• Another argument: no real act. Osmosis from placenta is not voluntary, thus no act.
• Dispute over whether there was actually delivery. "Battle of the experts." No real basis for the court to know one way or the other.

Commonwealth v. Keller

[35 Pa. D & C. 2d 615] 1964 Common Pleas Court of Lebanon County, Pennsylvania (cb148)

• No statutory crime against improperly burying bury, court claims this is a common law crime.
• Why didn't legislature ever pass this statute?
• Prosecution is really trying to prosecute for murder, which they can't prove, so has come up with alternative theory.
• How do we determine what is a common law crime?
  • 'Openly outrageous and offends decency'
  • Historical precedent
• Most court systems will reject this kind of reasoning.
• In Baker case, for example, Arkansas legislature passed statute after case prohibiting indecent treatment of corpse.

Wednesday, January 9, 2002 (Class 4)

Commonwealth v. Keller

[35 Pa. D & C. 2d 615] 1964 Common Pleas Court of Lebanon County, Pennsylvania (cb148)

• Would it make a difference if Keller had known that improperly disposing of dead babies would be highly offensive?
  • Maybe she would have known it was offensive but not illegal.
  • But could she have known it was illegal?
• Other function of criminal law is to limit the state; question is then what is limit of State's power (with respect to unwritten crimes)?

Keeler v. Superior Court of Amador County

[470 p. 2d 617] 1970 Supreme Court of California (cb154)

• Case was contemporary to Roe v. Wade, abortion was highly contested political issue, court did not want to get involved in abortion discussion.
• Was not possible for court to take some position on abortion (this position favored right to choose), although this position was perhaps less overt in abortion debate.
• First reasoning: Even though courts constantly reinterpret legislation, in this case they only read the law strictly with its original intent.
• Second reasoning: person needs to have notice. Cite Bouie case [378 U.S. 347], Civil Rights case where two people are arrested for trespassing in 'white only' section. Supreme Court decided case on basis that Bouie deserved notice prior to entering that it was crime to be in restaurant; notification after entry is not sufficient to meet due process rights.
  • Is Bouie precedent for Keeler?
    • Could argue that Keeler knew he was breaking law while Bouie didn't.
    • Keeler's crime was against a person, Bouie's was "against the general welfare".
    • Courts will feel great need for bright line test for speech, mobility, i.e., constitutional rights, to distinguish between non-criminal and criminal activity, as in Bouie. Don't want vague standards to deter people from legal behavior in these cases. But in Keeler, it doesn't matter if vague law deters people from assaulting or killing others due to vagueness.

People v. Van Alstyne

[46 Cal. App. 3d 900] 1975 California Appellate Court (cb161)

• Defendant arguing that marijuana sale law prohibits sale of specific subspecies different from what he might have been selling.
• Court finds defendant guilty, perhaps because it doesn't want to open up every past conviction, even though defendant has a good argument that particular behavior is not prohibited by law.
• Not totally consistent with Keller, where the law is read exactly to excuse defendant, here there is a ggeneral interpretation of "Cannabis Sativa L." to include all types of marijuana.

City of Chicago v. Jesus Morales Et Al.

[527 U.S. 41] 1999 Supreme Court of United States (cb162)

• Supreme Court majority only agrees with certain sections, in particular the parts regarding control of police.
• Chicago enacted ordinance prohibiting loitering by or with gang members. Police officer should follow these steps:

1. Police officer identifies a gang member
2. Gang member loitering with no apparent purpose.
3. Police officer orders dispersal.
4. Those ordered must disobey.

• Additionally, internal police regulations said ordinance would only be enforced in certain areas and would only be enforced by members of the gang unit.
• One problem: too much subjectivity given to police officers.
• Other problem (not majority opinion): lack of notice/process.
• Why did ordinance specify 'no apparent purpose'? Would be difficult to describe activity of 'claiming turf'.

Thursday, January 10, 2002 (Class 5)

City of Chicago v. Jesus Morales Et Al.

[527 U.S. 41] 1999 Supreme Court of United States (cb162)

• O'Connor's suggestion is that the law would be better with "no apparent purpose other than to establish control or intimidate." Is this better?
  • Generally thought to be easier to prove a positive than disprove a negative.
  • Three possibilities:
    • No apparent purpose.
    • No apparent purpose other than...
    • For the purpose of...
  • If you are prosecutor, might want the third possibility, don't have to prove 'no apparent purpose'.
  • How would you prove 'for the purpose of establishing control or intimidation'?
  • On the other hand, proving 'no apparent purpose' would just be to show they weren't doing anything. This would probably be easier.
  • The further you move towards 'for the purpose of', the more a court is likely to find statute constitutional, but the harder it is to prove for a prosecutor.
  • O'Connor was trying to 'split the difference' by using the formulation 'no apparent purpose other than...'
• Model Penal Code Loitering Law--still problem with criminalizing 'appearances'--some courts will no uphold

Punishment

• Two major rationalizations for punishment:
  • Utilitarian
  • Moral/Retributive?
• Do we punish someone for instrumental ends (we want punishment to have an effect on this person or on others) or do we punish people for moral ends (crime requires a response)?
• Utilitarianism -- associated with Jeremy Bentham (cb38)
  • Compare harm done from punishment with good that will result from it. If more good is done, then punishment should be given, otherwise not.
• Retribution -- associated with Immanuel Kant
  • If society is about to disband and there is just one person in jail for murder, that person should be killed, regardless of future results.
• Colorado Revised Statutes (lists justifications)

Alex Cabarga Case

• Cabarga was child who was 'adopted' by Tree Frog, ended up molesting Tara Burke.
• Deterrence: two questions.
  • What would have deterred Cabarga from act in advance?
    • Hard to believe Cabarga was capable of making any independent judgment at time he was turned over to Tree Frog.
  • What would deter Cabarga or others from committing act?
    • Probably any punishment would not prevent any future children in Cabarga's situation from committing act.
• Rehabilitation: questionable
• Moral: ...up for debate...
• Incapacitation (not in Colorado justifications): as long as you decide what happens to people in prison doesn't constitute violence, i.e., doesn't matter.

Federal sentencing guidelines take away rehabilitation and reform functions. No parole system.

Tuesday, January 15, 2002 (Class 6)

8th Amendment

• 8th amendment carries within it some application to duration of punishment; may limit time someone can serve for specific criminal act. Rarely applies.
• Applies in Capital Punishment; limits capital punishment in certain types of cases, etc.. Can't use Capital Punishment for rape. State Statute for death penalty must not be capricious.
• Exotic punishment: can't punish with hard labor in chains for several years for forging document. Prohibits torture. Rarely used since punishment tends not to be very creative.

Rummell v. Estelle

• If William James Rummel were convicted of the exact crime today as in the 1970's, how would you figure out what sentence he would receive today?
  • In 1970's he received life imprisonment under recidivist statute.
  • To determine punishment, start by reading the statute.
  • 1973: Whoever commits three felonies receives life imprisonment. Prior crimes:
    • 1964 Credit Card Fraud $80 3 years
    • 1968 Aggravated Assault (30 days)
    • 1969 Check forgery $28.36 (2-4 years)
    • 1973 Pool hall air conditioning fraud $130
  • Should have gone to jail for life in 1969 (third felony), but was actually sentenced to life in 1973.
• Theory: needs to be incapacitated, retribution (punishing bad character).
• 'Broken windows' theory: if you take repeat offending, even by trivial offenders, seriously, people will not take law and police powers seriously.
• Today: stealing check would be misdemeanor, 'larceny by trick' or classic theft. If Rummel were convicted of this he would only get the time of misdemeanor. Even if it were a felony, still would not get life sentence today, although Supreme Court upheld life sentence.

Solem v. Helm

[463 U.S. 277] 1983 United States Supreme Court (cb84)

• Someone was sentenced to life in prison after making bad check with criminal history.
• Claims that punishment is disproportionate to crime, violates 8th amendment cruel and unusual punishment clause.
• People were surprised that Supreme Court granted certiorari since they had just decided Rummell v. Estelle three years earlier.
• Three part test to decide fair punishment:
  • Gravity of offense vs. penalty
  • Other punishments in same jurisdiction
  • Punishments in other jurisdictions
• Harm: wrote 'no account' check for $100. Although bouncing check is not always crime, writing check on account that doesn't exist is always crime.
• Punishment: no possibility of parole in South Dakota, unlike in Rummell. Executive discretion (Gubenatorial pardon) not as good as parole for mitigating sentence. No parole in feeral system currently, however.
• Other punishments in same jurisdiction with life sentence are murder, treason, etc.. Of course, other recidivists might receive Solem's punishment, but question is more what other crimes.
• Court finds only one other state would give the same punishment (Nevada).
• Court finds law is not constitutional as applied to Solem. Recidivist whose crime is greater might still get life sentence constitutionally.

Harmelin v. Michigan

[501 U.S. 957] 1991 United States Supreme Court (cb90)

• Harmelin possessed 672 grams of cocaine, gets life imprisonment under Michigan Statute.
• 673 g is 'commercial quantity'.
• Why is this not 8th amendment violation?
  • Drugs as social problem.
  • Likely to be connecting with other crimes, helps State to 'negotiate'.
• In world of draconian sentences, prosecutor has enormous bargaining chip.
• Provides 'substantial assistance' to prosecutor in convicting others 'higher up'.

Federal Sentencing Guidlines

• Started in Minnesota with emergence of view that retribution is standard (forget, rehabilitation, deterrence, etc..). Everyone who does the same crime should do the same time.
• Not only was arbitrariness itself a bad thing, but also sentences were unfairly harsh on people of color.
• Instead of tailoring punishment to criminal, tailor punishment to crime.
• Minnesota started sentencing guidelines, tailored punishment to prison space, so it did not create a world where more and more people were going to prison.
• Federal system started on Minnesota basis. Congress appointed Sentencing Commission. Commission needed to choose between looking at "how bad is this conduct" based on Commission's review (similar to Minnesota system) or look at all sentences over past five years for particular crimes and make that the sentence. Didn't necessarily fix past mistakes but made them concrete.
• Guidelines don't allow judge to take into account person's situation for going outside sentencing range, but just within range.
• Guidelines provide means to reduce sentence: plead guilty provides a small mitigation, substantial assistance (to another conviction), can provide a much larger mitigation of punishment. Finally, if there was something in case that was not taken into account when guidelines were drafted (e.g., Rodney King case.)

Tomorrow: guest speakers at 1:45pm.

Thursday: Mark to Melissa are 'on'.

Thursday, January 17, 2002 (Class 7)

Federal Sentencing Guidelines

• Penalty for 150 KG cocaine powder is equivalent to 1.5 KG crack
• Political factors: crimes are almost never downgraded. Capital punishment appears to increase near election time.
• Vision of guidelines: equal time for an equal crime, no other factors, no parole.
• Sentencing table--offense level vs. criminal history

Koon v. United States

[518 U.S. 81] 1996 United States Supreme Court (cb104)

• Double jeopardy does not apply between sovereigns--United States and State can try person for same crime (although in this case charge is Civil Rights rather than Assault).
• For Civil Rights Statute, figure out base level--either 10 or 6 plus underyling offense level. Get total of 21 in this case.
• Departures: based on what criminal 'really did'.
• Adjusted upwards based on deadly weapon and actually injury, plus six.
• Then, adjusted downwards based on: widespread publicity, targeted abuse in prison, termination of jobs, non-violent people, victim provocation, successive prosecutions.
• Review de novo vs. review for abuse of discretion: in former, appeals court makes it own decision and substitutes it for trial court's, otherwise appeals court examines whether trial court judge make clear error.
• Surprising when standard for review under Federal Sentencing Guidelines was found to be abuse of discretion, because decision is supposed to be one of law only.
• Supreme Court finds victim provocation to be legitimate departure (even though who wouldn't expect police officer to claim victim provocation in a civil rights case?).
• Successive provocation is also legitimate (even though the history of Federal Civil Rights Cases is when State Law has failed).
• Federal criminal defense lawyer's job today has become arguing about departures in sentencing guidelines on appeal.

Currently, jury does not need to hear evidence on all aspects used in sentencing. Apprende (sp?) may change this.

State of Mind (Mens Rea)

• Pages 181-184--very dense, suggested to ready again in April

United States v. Balint

[258 U.S. 250] 1922 United States Supreme Court (cb185)

• Defendant violated Narcotics act, but claims the indictment is not valid since the crime does not require that they knew they were selling narcotics
• Court finds congressional intent was to stop people from being able to buy narcotics, even without the knowledge of the seller. Becomes a strict liability crime.
• Puts burden on potential defendant to find out whether or not what they are selling is illegal.
• Possible defense: Indictment charged 'unlawfully selling' but sale was not unlawful.
• Does this case stand for any principle of constitutional law?
  • Due process argument: when you say someone is guilty of crime when they are not even aware that they are committing acts. But there is no constitutional requirement for scienter (knowledge).
• In order to legislate against drugs, Federal government taxed criminal transactions as way to get at offenders (changed now that Federal Government can prohibit drugs directly).

United States v. Dotterweich

[320 U.S. 277] 1943 United States Supreme Court (cb189)

• Another crime without intent requirement--distributing improperly labeled drugs.
• Allows 'judges, juries, and prosecutors' to decide who should be held liable, even though statute does not specify what relationship defendant needs to have to crime.
• Very different depending on circumstances--was Dotterweich president of 3 person company or truck driver in 800 person company?

United States v. Park

[421 U.S. 658] 1975 United States Supreme Court (cb192)

• 36,000 employees, 874 retail outlets, etc..
• President of Acme Markets charged with crime of having adulterated food in warehouse in Baltimore
• Would have had to demonstrate that it was objectively impossible for him to have prevented violation

Next class: Julie to Rob are 'on'.

Tuesday, January 22, 2002 (Class 8)

State of Mind

United States v. Park

• Details of case suggest that ACME foods was not adequately following FDA rules, suggesting holding president accountable was justified, but nothing in law requires this.

Morissette v. United States

[342 U.S. 246] 1952 United States Supreme Court (cb193)

• Morissette was taking bomb shells and sold for $80, violating conversion statute.
• Government wants to prove 'you shouldn't take government property whether you know it or not and convert it'.
• Morissette believed shells were abandoned. Did not intend to convert.
• Does Balint apply to this case?
• Morisette 'knew what he was doing'.
• No state of mind--did not know the property still belonged to the government.
• Government says does not matter what his state of mind is.
• Holding: dinstinguishes between crimes that are 'evil in themselves' and those that are only bad when accompanied with state of mind (public welfare offenses). Historical crimes (going back to ten commandments) have required state of mind, thus it does not need to be included in legislation for it to be read as requirement.
• Not necessarily constitutional argument, may just be interpretative method.

U.S. v. X-Citement Video

[513 U.S. 64] 1994 United States Supreme Court (cb195)

• Requirements of crime:

1. Transport
2. in interstate or foreign commerce
3. any visual depiction if
   1. producing of video involves a minor in sexually explicit acts and
   2. depiction is of minor in sexually explicit acts

• Statute says 'knowingly'--question is how many of these elements does knowingly modify?
  • One possibility: 'knowingly transport', as long as knowledge of transporting videotape is present that is enough.
• Model penal code § 2.02(4): if statute uses word identifying state of mind, that state of mind applies to every material element of statute unless otherwise specified.
• Or if no level of culpability is specified, uses recklessly, knowingly, or purposefully standard.
• Supreme Court does not use Model Penal Code, however, so Chief Justice Rehnquist reasons:
  • Ten year felony (doesn't sound like public welfare offense)
  • Strict liability crimes are okay if public understands 'this is a highly regulated area of activity where you proceed at your own risk' (e.g., hand grenades, Freed case).
  • First amendment considerations, not discussed but do inform the judgment

U.S. v. U.S.D.C.

[858 F.2d 534] 1988 9th Circuit Court of Appeals (cb196)

• Parents assured people that child was not minor.
• First amendment requires that person's mistake was a reasonable mistake, they did everything they could have.
• Under Model Penal Code, would have to prove recklessness. Prosecutor would have to prove defendant would have to know there was a real possibility that Lords was a minor.

Whenever there is criminal statute that contains more than one element (always) there will always be problems with the state of mind requirement.

Regina v. Faulkner

[13 Cox C.C. 550] 1877 Court of Crown Cases Reserved (cb202)

• Sailor was stealing rum from hold of ship, lit match to plug up hole, burned down ship.
• Prosecuted for violating 'malicious damage act', convicted by jury.
• Judges hold that person cannot be held responsible for fire when they set out only to commit destruction of property.
• Fitzgerald: 'should have foreseen' = negligence standard. Jury was not given negligence standard, thus overturns jury conviction.
• Statute included "feloniously, unlawfully, and maliciously set for to the ship". Classically means nothing, because these adverbs have been used so much in criminal statutes historically.
• 'Felony-murder' rule in US: if you commit a certain type of felony and someone dies as a consequence, crime is murder not accidental death.
• Deterrence argument works both ways: either person always has option which is right or wrong, we want to create disincentives for further crimes; alternatively, we really want to prevent felonies, therefore felony murder rule is great disincentive.
• Although felony murder rule is vast exception, Faulkner is more the rule in United States jurisprudence.
• Model Penal Code would not find Faulkner guilty of arson because it requires person to purposefully destroy/damage property by fire.
• Causing or risking catastrophe: second degree felony if purposely or knowingly, third degree if recklessly.
• To act recklessly under model penal code, would need to have been conscious of substantial risk.
• Criminal mischief (negligence standard) -- only a misdemeanor

Other standard for model penal code culpability: knowledge.

What if person is given $200 to carry backpack with heroine, but claims they do not know what they are transporting.

United States v. Jewell

[532 F.2d 697] 1976 9th Circuit Court of Appeals (cb219)

• Court does not allow 'willful blindness' to constitute lack of knowledge
• Model penal code defines high probability of knowing something is true is equivalent to knowing something is true.

Next class: Kia to John, up to Stacy, over to Adam

Wednesay, January 23, 2002 (Class 9)

There is no generic definition of specific intent/general intent. Don't use them in this course!

United States v. Doe

[136 F.3d 631] 1998 3rd Circuit Court of Appeals (cb223)

• In this case, 'general intent' means negligence (or arguably recklessness).

State v. Neuzil

[589 N.W.2d 708] 1999 Iowa Supreme Court (cb223)

• Statute punishes "purposely engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to, or the death of, that specific person or a family member."
• Express effort of legislature in drafting statute was to make only purpose part to be to engage in the conduct, not to cause the fear (since stalking is often not perceived as such by the defendant).
• Model Penal Code Section 2.02(4): When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.
• Argument in Model Penal Code jurisdiction would be whether or not there is a contrary purpose in statute.
• If so, the negligence standard would be applied to other elements (other than purposely engaging in conduct).
• Iowa Supreme Court probably got this exactly right in legislature's intent.

Mistake Cases

Regina v. Prince

[L.R. 2 Crim. Cas. Res. 154] 1875 Court for Crown Cases Reserved (cb223)

• 1875 equivalent of statutory rape, 12 year old and 10 year old
• Crime is defined as:

1. Taking
2. any unmarried girl
3. under sixteen
4. out of possession
5. and against will of parent/guardian

• Prince did take Annie Phillips who was under 16 years old, although he reasonably believed she was 18 years old.
• Court holds that no mens rea is required; this is a 'strict liability' crime.
• Blackburn's view: Prince did have to intend to take the girl but did not have to know girl was under sixteen. Uses analogy to other crimes: where 12 year old takes girl under 10 years old, crime goes from felony to misdemeanor. But if you let defendant's belief influence crime, then he is not guilty of the felony (didn't know he was doing it) and not guilty of the misdemeanor (didn't actually do it).
• Model Penal Code sets out rule that when person is mistaken then they are guilty of the crime they thought they were doing (in Blackburn's hypothetical, person would be guilty of misdemeanor of taking girl between 10 years old and 12 years old).
• Problem with this conception: what if it starts raining, you grab umbrella and run off with it thinking you're stealing it, but in reality it was your umbrella that you forgot you brought. Is this a crime? (problem when you let mental state be controlling).
• Bramwell's view: act is immoral, no specific state of mind requirement beyond that, since girl should have been with her father.
• Denman's view: conduct would only have justification if every element were mistake. Strict liability crime with defense possibility that what they did was completely lawful (not possible in this case since he did take an unmarried girl out of possession of father).
• Brett's view: similar to Model Penal Code. If Prince reasonably believed girl was of age then this wasn't crime.

People v. Ryan

[626 N.E.2d 51] 1993 Court of Appeals of New York (cb230)

• Statute prohibits knowingly and unlawfully possessing 625 mg of a hallucinogen.
• Ryan had two pounds of mushrooms; slice of mushrooms was found to have more than the statutorily prohibited amount of psilocybin.
• What does 'knowingly' modify--possess, or the amount you're possessing?
• If legislature had not intended for knowingly to modify the amount, this would make it a 'strict liability crime' under court's view here, which they hold not to be legislative intend.
• Model Penal Code requires state of mind for material elements (section 1.13):
  • "material element of an offense" means an element that does not relate exclusively to the statute of limitations, jurisdiction, venue, or to any other matter similarly unconnected with (i) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or (ii) the existence of a justification or excuse for such conduct;
• In New York, strict liability crimes must be stated as such by legislature; New York has adopted this part of the Model Penal Code with respect to mens rea.
• What if chemists know that 2 pounds of mushrooms will always have more than 625 mg of hallucinogen? Does the fact that Ryan knew he had 2 pounds mean he knew he had 625 mg?

Jen to George-Marie will be 'on' tomorrow.

Thursday, January 24, 2002 (Class 10)

Mistake of Fact and Mistake of Law

Model Penal Code § 221.1: Burglary Defined

A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter. It is an affirmative defense to prosecution for burglary that the building or structure was abandoned.

In hypothetical where woman mistakenly enters other premises and takes jewelry after getting there, woman is not guilty of burglary, since she did not enter with intent to commit a crime.

Person enters what appears to be warehouse to steal for drug money, turns out it is someone's dwelling. This would be a burglary, but under Model Penal Code not of the second degree, since the same state of mind would apply to whether or not it was the dwelling of another at night (either purpose, or if that doesn't make sense, knowledge or recklessness).

Person notices open window to what appears to be a dwelling, breaks in, but discovers it is yarn factory and leaves empty handed. Probably guilty of burglary of the third degree and attempted burglary of the second degree.

If there is no state of mind associated with any element of a crime, then you need to move to rules of construction. Under Model Penal Code if there is any state of mind in any element of crime, then that applies to all elements. If there is no state of mind, then recklessness applies. Presumption against Strict Liability rules.

Mistake of Fact v. Mistake of Law: Model Penal Code draws no such distinction. § 2.04:

1. Ignorance or mistake as to a matter of fact or law is a defense if:
   1. the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or
   2. the law provides that the state of mind established by such ignorance or mistake constitutes a defense.

United States v. Learned

[26 F. Cas. 893] 1870 East Michigan District Court (cb245)

• Defendants were issuing contracts without stamps, although they claimed not to know the papers were contracts.
• Court finds defendants still guilty: mistake of law is no excuse.
• Model Penal Code would not distinguish between Fact and Law. If you don't know document is a contract then you are not guilty.
• Current conception is mistake of governing law vs. mistake of non-governing law.
• 'I didn't know what I was doing was a crime' -- mistake of governing law, no excuse.
• Mistake about civil concept called contract which is element of crime -- mistake of non-governing law, may exonerate defendant.
• Learned is not the result the Model Penal Code would give--it is traditional approach which has generated a lot of confusion.

People v. Bray

[52 Cal. App. 3d 494] 1975 Court of Appeal of California (cb248)

• Defendant accused of possessing firearm as felon, but did not necessarily know he was a felon.
• Mistake of 'law', but seems to be mistake of non-governing law.
• Needed to call a lawyer from Kansas to determine whether Bray was felon or not.

Julio Marrero Case

• Accused of carrying loaded gun without New York permit.
• Exception in statute for corrections officer. If we assume state accepts definition of correctional officer requires officer to be employee of New York (not Federal), does New York allow for 'mistake of law' defense?
• Question is whether State has to prove he doesn't have a defense or if defendant has to prove he does have a defense?
• Statute seems to list all peace officers they want exempted, Marrero is not on the list even though he might reasonably believe he would be.
• This becomes a 'strict liability' law under New York Statutes as interpreted by the court.

United States v. Baker

[807 F.2d 427] 1986 Fifth Circuit Court of Appeals (cb252)

• Defendant was counterfeiting Rolex watches, claims he didn't know counterfeiting was crime.
• Classic mistake of governing law. No excuse to not know something was a crime.

Smith case: tenant took and damaged electrical equipment he had installed in apartment, not knowing that property belonged to landlord. Mistake of non-governing law, exonerates defendant.

Cheek v. United States

[498 U.S. 192] 1991 United States Supreme Court (cb255)

• Defendant did not pay income taxes after deciding that his wages were not income.
• Also believes income tax law is unconstitutional.
• Unlike other areas of the law, court interprets willfully to mean that not only did you have to know you were doing illegal act, but that you knew act was illegal.
• Even though defendant's idea that he didn't have to pay taxes was somewhat 'loony', criminal law is subjective. Doesn't matter that this is unreasonable mistake.
• Court finds defendant's claim about unconstitutionality of tax law not to be valid defense--this is 'mistake of governing law' somehow (even though tax law mistake is not).

Cathleen through Darren for next class.

Tuesday, January 29, 2002 (Class 11)

Julio Marrero Case

• Ultimately, Marrero got 3 years suspended sentence and $500 fine, after 10 years of prosecution.

Ratzslaff Case

• Defendant runs up debt at casinos, comes in with $100K in cash to pay most of debt.
• Problem with reporting requirement: all transactions over $10K must be reported. Casino tells Ratzslaff if he goes to several banks and gets several $10K cashier's checks, money will not be reported.
• Rationale for reporting requirement: this is primary means for controlling money laundering.
• Because statute has wilful condition and because it is a reporting requirement (like a tax code), court holds that not only does prosecution need to show that defendant broke the law but also that he intended to break the law by doing so.
• Congress later amended statute to eliminate need for willfull action; now only need to prove that structuring was done for the purpose of evading reporting requirement.
• Model Penal Code equates wilful with knowing:
  • 2.02(8) Requirement of Wilfulness Satisfied by Acting Knowingly. A requirement that an offense be committed wilfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears.

Lambert v. California

[355 U.S. 225] 1957 United States Supreme Court

• Lambert is accused of violating California statute which required ex-felons to register upon arrival in city of California.
• Lambert shows up in Los Angeles and does not register.
• Lambert did not have fair notice, is not found guilty.
• Compare situation with law requiring dog registration; would court also find violation of this statute without knowledge to be not liable?
• Only case where Supreme Court has violated a statute on the grounds that the statute did not require some form of mens rea for statute to be valid.

Long v. State

[65 A.2d 489] 1949 Delaware Supreme Court

• Issue of right to be divorced except under laws of primary residence; enforced through active prosecution of bigamy laws
• Under statute, if marriage is 'legally dissolved', then person can remarry without penalty.
• Affirmative Defense--even though there is a 'complete crime'--because defendant did everything he could to determine if he was breaking the law.
• Delaware is prepared to recognize an affirmative defense that when he has done everything legally possible, he is not guilty.
• Model Penal Code does not recognize this sort of defense. § 2.04 does not allow you to make mistake of law defense when you spoke with lawyer; must be official source.

Commonwealth v. Twitchell

[617 N.E.2d 609] 1993 Massachusetts Supreme Judicial Court

• Twitchells understand Attorney General's opinion as allowing them to follow spiritual practice and not be criminally liable for child's death.
• Law is actually that spiritual practices will not constitute neglect; does not apply to manslaughter.
• Twitchells may have been aware of risk, since they inquired as to the legality.
• Attorney General is not only one at fault--people who wrote Church document also failed to accurately describe law.
• Anomalous result is that if they had not consulted the Church, they probably would have been guilty.

Hendershott v. The People

[653 P.2d 385] 1982 Colorado Supreme Court

• Hendershott, defendant, was heavy drinker, assaulted girlfriend.
• Defense was that he had 'adult minimal brain dysfunction', impairs his ability to control his impulses.
• Distinction between one's ability to control one's behavior and one's awareness of what one is doing: addiction is common example.
• Not a defense for addict getting a hit to say she didn't realize what she was doing, rather that her addiction made her incapable of controlling her behavior.
• Separation of 'cognition' and 'will'. Hendershott's argument is that he was incapable of forming intention (because he was never conscious of risk) or in this case he wasn't able to form the prohibited state of mind.
• Prosecution claims this defense is only valid for specific intent crimes, but not for general intent crimes.
• Colorado would draw line between purpose/knowledge and recklessness/negligence. Crime Hendershott is accused of has recklessness as requirement.
• Constitution won't let you convict somebody of having a certain mental state if the jury is precluded from receiving relevant evidence as to whether the person has the capacity of having mental state.
• When the state is obligated to prove that the defendant acted recklessly, need to allow evidence to prove/disprove this state.
• Hendershott is claiming fundamental psychiatric condition that he is not capable of forming requisite mental state. Cannot consider risk and ignore it, as is required for recklessness.
• Under Model Penal Code § 4.02, this sort of evidence is always admissible. Most states do not like this section of Model Penal Code.

Wednesday, January 30, 2002 (Class 11)

• Case where psychiatrist testifies that woman accused of cashing fraudulent checks had personality that required her to believe whatever men told her.
• Major disagreement in common law: do you trust the jury to apply 'common sense' in determining credibility, or do you allow the defense to explain why something that looks straightforward is fairly complex?
• Model Penal Code says mental disability is always relevant to capacity of Mens Rea. Most states have rejected this conception, instead find it relevant only for 'specific intent' crimes: generally, crimes involving purpose and knowledge rather than recklessness and negligence; alternatively, 'crimes within crimes', i.e., assault with intent to kill.

State v. Cameron

[514 A.2d 1302] 1986 New Jersey Supreme Court

• Defendant, while voluntarily intoxicated, assaulted group playing cards.
• Court allows for evidence of voluntarily intoxication to be introduced if there is possibility for person to be sufficiently intoxicated to not have capacity to form requisite mens rea.
• This would not be an affirmative defense; rather it would negate mental state element of crime.
• Rule in New Jersey and most places is that voluntarily intoxication can negate purpose or knowledge, but can not negate recklessness.

Law does not want inhibition-reudcing activity to become reason for limiting seriousness of what someone does. Thus mental condition may be admissible, but inhibition may not. Intoxication as a defense would 'swallow' all of criminal law.

Montana v. Egelhoff

[518 U.S. 37] 1996 United States Supreme Court

• Montana takes position that it is never relevant to determination of State of Mind that defendant was drunk.
• United States Supreme Court takes same view as in Hendershott: can't deprive defendant of opportunity to establish non-existence of element of States' prima facie case.
• Justice Ginsburg: you commit first degree murder either by acting purposefully, knowingly, or while drunk if it would have been purposeful or knowing if the person had been sober.
• Case troubled commentators and courts greatly.
• If you could find a way to write it, this case suggests that legislatures could find a way to eliminate intoxication as defense for any crime.

Hypotheticals:

• A drunk person is driving, blacks out, and runs over someone. Is this murder in Montana?
  • Ordinarily, no purpose and no knowledge. Certainly recklessness. But under Ginsburg's model, this would appear to be first degree murder since this would have been seen as purposeful or knowing if they had been sober.
• Drunk person is in bar with gun in waistband. He trips and falls, gun goes off and kills someone.
  • If sober, the person wouldn't have tripped and fallen, therefore death wouldn't have occurred.

Under Egelhoff could have crime of 'drunken murder'. But this is unstable area of law now.

Causation

• Unlike in torts, goal is not making person whole, but punishing culpability, this would suggest a narrow construction of causation. On the other hand, in criminal law usually deals with reckless, knowing, or purposeful conduct, which suggests having broader view of causation.
• Ultimately, morality and justice prevail in arguments concerning causation.
• Start with but-for causation (similar to torts), and move on to proximate cause.

Regina v. Martin Dyos

• People fighting outside club, one got hit on head by brick, and ultimately died.
• Not certain that brick killed person. Unknown injury/injurer also could have killed victim, also uncertain.
• Would be easy if we know the other blow was from someone in Martin Dyos' group. When there are two known causes, usually they are both guilty.
• In this case, Martin Dyos is not guilty because they could not prove that he caused death.
• Would be guilty of attempted murder (if they were trying to kill him) or aggravated assault

Joseph Wood Case

(Robinson 65-69)

• Alma and Luman, married couple, fight frequently.
• Disagreement about ownership of horse, Wood (Alma's father) shoots Luman, wounding him. Luman attacks Alma, who shoots him, ultimately he dies.
• Can Wood be guilty of murder, when Alma's shot kills him?
• If act is last-in-time and it shortens life, then that is murder.
• The most Wood can be guilty of is attempted murder or aggravated assault.

Jenny to Tarah for tomorrow.

Tuesday, February 5, 2002 (Class 13) (Assignments 13)

Lesson from Dyos case: can't hold someone criminally liable for death where multiple actors may have caused death but can't identify other actor. But if identities of all simultaneously contributing actors are known, then they can all be guilty of murder. They are then all substantially contributing cause of death (traditional doctrine).

On the other hand, if Dyos strikes with intent to kill, and then Tom strikes with intent to kill one minute later and speeds death, than Dyos is only guilty of attempted murder and then Tom is guilty to murder.

Dyos would have been liable in torts. Criminal law in this case comes to different result: if you don't know for sure that defendant's action caused injury then can't hold them liable.

Interaction of mens rea and causation. In torts, law will sometimes carry causation further in intentional torts than in unintentional torts. In criminal law, situation is reversed: crimes with higher mens rea standards may not allow for as long as chain of causation. Rationale: want to punish people for what they set out to do less than what they actually they did.

Commonwealth v. Rhoades

[401 N.E.2d 342] 1980 Massachusetts Supreme Judicial Court (cb300)

• Defendant set fire in building, leading to fireman's death from combination of cold weather, smoke inhalation, etc..
• On appeal, defendant is challenging jury instrutions which may have led to his conviction, allowing jury to find Rhoades guilty if he "contributed to hasten, or was part of the proximate cause" of fireman's death," he could be found guilty of second degree murder. Very broad definition of causation.
• Supreme Judicial Court finds that Rhoades must be "efficient cause" (the cause that necessarily sets in operation the factors which caused the death.)
• Under Model Penal Code § 2.03:
  • First need to ask what state of mind is defendant charged with. Is the harm the harm defendant intended? No.
  • Need to ask whether actual results differs from that contemplated or only if it differs in degrees.
• In many jurisdictions, arson is component of felony murder, thus this question never needs to be asked.

Hypotheticals (cb303)

• Robber knocks person over, leave, later they are run over in parking lot. Under felony murder rule (or reckless/negligent homicide), then robber is guilty. But under Model Penal Code felon is not liable, since the result was not within contemplation of actor.

Commonwealth v. Root

[170 A.2d 310] 1961 Pennsylvania Supreme Court

• Root was in car race, other party crashed into truck dying.
• Prosecution contends Root's behavior is proximate cause of other person's death because they recklessly engaged in race which would foreseeably lead to person's death.
• Pennsylvania Supreme Court overrules lower court, although they would be less likely to allow this if it had been a third party who was killed.

People v. Kevorkian

[527 N.W.2d 714] 1994 Michigan Supreme Court

• Issue of physician-assisted suicide. Court finds Kevorkian's lack of direct action to kill patient not to constitute murder; later, Michigan passed statute making assisted suicide illegal.

For tomorrow nobody in particular is 'on', but will cover murder and some of manslaughter.

Wednesday, February 6, 2002 (Class 14) (Assignments 13-14)

People v. Kevorkian

[527 N.W.2d 714] 1994 Michigan Supreme Court

• When actual act that caused harm is commited by someone other than defendant, you have two alternative ways of thinking about whether defendant committed crime:
  • Did defendant's act cause the actual harm that the law prohibits? Causation of defendant's act by itself is sufficient to constitute the crime for which the person is being punished.
    • Kevorkian's act of operating the machine is sufficient to constitute the crime of murder; simply providing the machine is not sufficient.
  • Accomplice Liability: Defendant's act is not sufficient by itself to cause a crime, but defendant is behaving in a way that encourages another to commit a crime, therefore defendant is responsible as an accomplice to crime.
• Does criminal law really need both doctrines? Or are they really duplicative? (for purposes of bar exam, they are very different concepts.)
• Cannot convict Kevorkian on either basis, since Michigan does not recognize suicide as a crime, thus he is not an accomplice. On causation basis, his act is not sufficient to cause death.
• Distinguish between Kevorkian's situation and People v. Duffy: Duffy was charged with manslaughter, thus is not an accomplice but is independently committing another crime. Person was intoxicated and Duffy encouraged them to shoot themselves, thus he at least recklessly caused death--involuntary manslaughter.
• In Kevorkian, Court finds this is a rational act of free will that takes the life; in Duffy we have vulnerale victim.

People v. Beardsley

[113 N.W. 1128] 1907 Michigan Supreme Court

• Case where woman took morphine after drinking all weekend with man and died; man is accused of manslaughter.
• Question of whether man had duty under criminal law--probably would under Tort Law.

Palmer (cb343) and Leg (cb344) cases:

• Cases where child is beaten to death, where person who beats child is charged as well as other caretaker, who fails to stop it.
• In Palmer, criminal act is failing to intervene when her lover's acts would make a reasonable person realize that the child was in danger. Act was not purposeful; was not person's purpose to cause her child to die; thus possible mens rea include knowledge or recklessness/negligence. Court in this case is using language of negligence.
• In Legg, does it matter whether defendant knew or should have known child was in danger? No, because foreseeability standard takes over--negligence is state of mind. If Legg says and jury believes that she had no idea that Steven might die, and that a reasonable person would not foresee that the child might die. Legg is guilty of felony of failure to protect child, therefore she is guilty of child's death, even though she could not have foreseen that failure to protect would lead to death.

Murder

• Readings on voluntary manslaughter are not designed to 'make you feel good' about gender-neutrality of law.

Francis v. Franklin

United States Supreme Court

• Franklin is prisoner, taken to dental clinic with group of other prisoners. As they are unshackling another prisoner, Franklin grabbed gun from guard, took dental assistant hostage and escaped. Description of facts in this case emphasizes people Franklin didn't kill. If dissent had prevailed, facts would certainly have been less favorable to Franklin.
• Defendant is accused of first-degree murder.
• Contests jury instructions as requiring them to find intent.
• To determine mental state in the absence of a confession, jury is permitted to find state of mind based on what a reasonable person's state of mind would be given the evidence.
• Supreme Court reverses conviction, however, because jury instruction shifts burden of proof against defendant.
• Once defendant claims different state of mind then reasonable person, burden of proving otherwise shifts back to prosecution.
• State can't tell jury that they are to presume certain state of mind.
• State can't say: 'If you use a gun, we are going to presume that you intended to kill.'
• Under Alabama murder statute, Franklin is guilty.
• Under California murder statute, probably not:
  • Under first degree murder, must be wilful, deliberate, premeditated standard. Could argue that Franklin's act was not deliberate or premeditated, thus it must be second degree murder.
• Traditional distinction is that first degree murder is capital -- can face death penalty; second degree murder is not.
• Historcially, all murders were capital. In latter part of 18th century, Pennsylvania became first state to try to distinguish among murders. Only people to be executed would be those who were premeditated and deliberate. Others would be second-degree murder. This distinction would then emerge in the law of virtually every state.
• Later established that jury would decide on capital punishment.
• Original purpose of distinction between murders was specifically for deciding death penalty.
• This distinction criticized on two bases:
  • Why punish person who has struggled with whether or not to commit murder more than someone who does it without thinking much?
  • If there is enough time for human being to form intent to kill, and any time follows, then the jury can find that premeditation occurred.
• By mid-1950's and 1960's, movement started to question capital punishment on these criticisms, convinced Supreme Court that distinction between first- and second-degree murder was ephermal.
• Model Penal Code came up with capital statute that does not include distinction between premeditation and non-premeditation.

Row including Angela to April for tomorrow. Only responsible for Berry and Woo. Will get through all of provocation tomorrow.

Thursday, February 7, 2002 (Class 15) (Assignments 15-16)

History of Murder

• Historically, all felonies were capital in England. By end of 18th century, differentiations began in degrees of murder (starting in Pennsylvania), to determine which cases would be capital and which would not be. Premeditation and deliberation formula became basis for differentiating between first and second degree murder. Later, doctrine began to distinguish between murder and voluntary manslaughter.
• Following World War II, England appointed a 'Royal Commission on Capital Punishement'. Even those people who couldn't qualify for voluntary manslaughter, home office was commuting most death penalty sentences to life sentences, they became concerned that this was discretionary.
• Commission recommended England adopt degrees of murder like the United States; before this could be done, labor party came to power and abolished capital punishment.

People v. Walker

[204 N.E.2d 594] 1965 Illinois Court of Appeals (cb380)

• Defendant is sitting on porch when Stenneth approaches with knife and demands that others gamble with him. Walker throws brick at victim, knocks him down, then kills him with his knife.
• Issue on appeal: should this be murder or manslaughter?
• Case was decided by judge, no jury. Appeals court reverses conviction for murder, holds death was manslaughter.
• If case had been tried by jury, would have either had to challenge the jury verdict, or shown that no reasonable jury would have convicted based on the facts.

Distinction between justification and excuse (both are partial):

• Justification
  • Conduct that would otherwise be criminal is justified when person's reaction is socially approved--what we would want to happen. Self defense is the classical example of justified use of deadly force. Law enforcement another example.
  • Provocation would have to come from the victim.
• Excuse
  • Excuse does not mean the conduct was desirable, but does excuse the person from liability.
  • Doesn't matter whether victim caused provocation.
• "Honor" defense: men killing their wives or wives' lovers in adultery situations.

Rowland v. State

[35 So. 826] 1904 Mississippi Supreme Court (cb386)

• Defendant discovered wife having affair, was convicted of murder and given life sentence by jury.
• Supreme Court reverses conviction, adultery was justification for defendant's act.

In 20th century, questions began to arise as to why there were only a few situations that could count as justificitino or excuse.

People v. Berry

[556 P.2d 777] 1976 California Supreme Court (cb402)

• Defendant married woman, she left for Israel and fell in love with someone else, teased defendant who attempted to strangle her.
• Finally, defendant strangled woman to death, after extensive 'incitements'.
• Under psychiatrist's analysis, woman was attempting suicide--but this was based entirely on conversation with the defendant, since psychiatrist never met victim.
• Seems to suggest that any domestic violence case should be entitled to a jury instruction of manslaughter.
• Court reverses jury judgment (which found defendant guilty of murder).

People v. Wu

[235 Cal. App. 3d 614] 1991 California Court of Appeal (cb415)

• Wu was going to commit suicide, and due to 'cultural background' thought no one would want her son, killed her son but failed in her own suicide.
• Defense wanted jury instruction concerning defendant's cultural background, appealing this issue.

For next time, everyone from Jeanette back is 'on'.

Tuesday, February 12, 2002 (Class 16) (Assignments 16-17)

People v. Wu

[235 Cal. App. 3d 614] 1991 California Court of Appeal (cb415)

• Would defendant's requested jury instructions have given different result? (That her cultural background should be taken into account).
• What is provocation standard?
  • Standard can be on 'spectrum' from 17th century objective view (adultery, etc., situations) to subjective standard (any situation where defendant is very upset).
  • California's standard is much more towards subjective standard, similiar to Model Penal Code:
    • § 210.3: (1)(b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be.
• Problem with reasonable person standard--reasonable tend not to be violent. Model Penal Code solves this by allowing the act to be reasonable when viewed from the perspective of someone in actor's situation.
• Cooling time: can't nurse grudge over extended period of time and then erupt. (see Berry case, where defendant waited over long period of time before killing victim.)

Intentional killings are either murder or voluntary manslaughter--problems with voluntary manslaughter category, though.

Commonwealth v. Welansky

[55 N.E.2d 902] 1944 Massachusetts Supreme Judicial Court

• 492 people died in Cocoanut Grove fire (resulted in a revolution in fire safety regulationsand practices).
• Welansky, proprietor of club, is accused of involuntary manslaughter.
• Welansky was in hospital night of fire.
• Exits in club were either locked or hidden or opened inward.
• Court is focused on difference between 'recklessness and wantonness' and 'negligence'.
• Wilful refers to conduct rather than resultant harm. (quite rare that someone actually does not intend their conduct).
• Even if a person is so stupid or heedless, cannot escape imputation of wanton or reckless conduct if reasonable person would have recognized gravity of situation.
• Holding in this case reduces manslaughter to a negligence standard, although one might expect jury would have found against defendant even under recklessness standard.
• "Hard cases make bad law"--should standard have been lowered to negligence?

Case of father who accidentally left child in car, who then died. Maybe no utilitaritarian justification for punishment, but what about retribution?

State v. Williams

[484 P.2d 1167] 1971 Washington Court of Appeals

• Parents did not take their child to doctor after it had a toothache (which eventually turn gangrenous, and then child died).
• Parents were worried that State would take away their child if they took it to doctor. Had rational concern that child would be taken away because they were Indians.
• Court finds parents did not exercise 'ordinary caution'. Reasonable person standard.
• Odor from gangrene would have made reasonable person take child to doctor, before September 5 (after which it would have been too late to save baby).

For next time, Christina to Larry, and over to Anna (are 'on').

Wednesday, February 13, 2002 (Class 17) (Assignments 17-18)

State v. Williams

[484 P.2d 1167] 1971 Washington Court of Appeals

• Standard in Washington seems to be ordinary caution--similar to common law negligence rule.
• Did parents not exercise ordinary caution between September 1 and September 5, when they could still have saved child's life, and gangrenous odor became apparent? If so, under Washington standard, it would appears they were guilty of manslaughter.
• Should defendant's Native American background effect standard of ordinary caution? Can't tell from trial judge's decision.
• Model Penal Code does not suggest that in negligence cases reasonable person standard should take into account person's specific ethnic background.
• Is this case consistent with Commonwealth v. Twitchell, where parents were found not guilty after failing to get medical care for their child on advice from Christian Science authority who had read Attorney General's opinion? Christian Science is white, upper middle-class religion (unlike Native Americans).
• Williams were ultimately sentenced to three years suspended sentence.

Reckless Homicide

• Unintentional killings: start with manslaughter and 'move up' to murder.

Mayes v. People

[106 Ill. 306] 1883 Illiniois Supreme Court

• Mayes was intoxicated but not unconscious; threw beer bottle at wife which ignited the lamp she was carrying and killed her.
• Court gave jury instructions that if defendant had abandoned and malignant heart, he would be guilty.
• Resembles convicting someone because of their bad character. Is this fair?

Commonwealth v. Malone

[47 A.2d 445] 1946 Pennsylvania Supreme Court

• Two teenagers were playing 'Russian poker' where one put gun up to other's head and pulled trigger three times, killing him. Malone thought bullet was in chamber that would not have caused gun to fire.
• Malone claims murder was not intentional, since he thought there was no chance gun would fire. Everyone would agree, though, that behavior was reckless.
• Is it moral character of behavior that is driving court's conviction?

Commonwealth v. Woodward

[1997 WL 694119] 1997 Massachusetts Superior Court (cb455)

• Child in care of nanny died from being shaken.
• Prosecutor charged defendant with second degree murder (apparently thinking he could get plea bargain for manslaughter).
• Nanny went on trial, question of whether jury should have option of convicting of lesser offense. Defense decided not to ask for instruction of option of lesser offense; jury was given only second-degree murder or not guilty.
• Jury convicted defendant of second-degree murder. Judge reversed jury verdict and entered judgment of involuntary manslaughter.
• Extraordinarily unusual for judge to bail out defendant this way (would never happen in State where judges are elected).

Dog Cases

• Does owning a dangerous dog constitute recklessness? Abandoned and malignant heart? Should dog owners be found guilty of murder? Then should anyone who leaves a gun around their house guilty of second-degree murder on abandoned and malignant heart theory? If it is loaded?
• California (like Massachusetts) has low standard for murder: if it is illegal to have attack dog under these circumstances, therefore it's murder.

People v. Stamp

[2 Cal. App. 3d 203] 1969 California Court of Appeal

• Defendant and accomplice robbed store; after robbery, one of employees died of heart attack. Employee had heart disease but medical testimony was offered that robbery precipitated attack.
• Defendant is accused of felony murder. State of mind required for murder (purpose, intent, 'abandoned and malignant heart') is replaced with state of mind required for underlying felony.
• In some jurisdictions, defendants would be guilty of capital murder.
• Under Model Penal Code (no felony murder), might be guilty of negligent homicide, if prosecution could show that a reasonable person in defendant's position could hav foreseen victim's death.

Max to Ariel are 'on' tomorrow.

Thursday, February 14, 2002 (Class 18) (Assignments 18-19)

People v. Stamp

[2 Cal. App. 3d 203] 1969 California Court of Appeal

• Under Model Penal Code, what crime would Stamp has committed?
  • Murder
  • Voluntary Manslaughter
  • Involuntary Manslaughter
  • Negligent Homicide
• Empirically, there is only a 0.59% risk of homicide in armed robbery.
• Model Penal Code requires, for negligent homicide, substantial and unjustifiable risk.
• For involuntary manslaughter--requires recklessness--the defendant needed to be aware of substantial and unjustifiable risk.
• Under California law, Stamp's act becomes First Degree Murder (in many states--e.g., Georgia--Capital Offense), even though without the Felony Murder Rule, act might not even be criminal:
  • California Penal Code §189: All murder which is perpetrated by means of a destructive device...or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, or any acts punishable under...is murder in the first degree.

Why felony murder rule?

1. Extreme recklessness
2. Bad people should be strictly liable
3. Safer felonies
4. Deter felony to begin with

• Compare Regina v. Faulkner, where sailor lit match while stealing rum, burned ship down. Faulkner was not held liable for burning down ship.
• Limiting predicate felonies: question of whether felony is inherently dangerous. Model Penal Code labels felonies as either predicate felony or not at all.
• Misdemeanor-manslaughter: In some states, where someone commits a misdemeanor and in the course someone dies, this becomes manslaughter.
  • Case where person shot at hunting decoy, killing hunter. Committed misdemeanor in that migratory birds may only be taken with shotgun and not shotgun. Was found guilty of manslaughter.

People v. Gladman

[359 N.E.2d 420] 1976 New York Court of Appeals

• Defendant entered delicatessen, robbed them, went to bowling alley. Later, when police officer was exiting car, defendant shot and killed him (15 minutes after committing felony).
• Need to determine whether homicide was part of felony murder or independent crime.

Bethany to Michelle are 'on' for Tuesday.

Tuesday, February 19, 2002 (Class 19) (Assignment 19)

• Burglar runs stop sign, pursued by cop, eventually kills someone in car crash. Oklahoma Court holds that there isn't a sufficient nexus between the felony (burglary) and the homicide (the car crash).
• On the other hand: Court in case where driver with fraudulent license plate kills someone in crash, court finds he is guilty of felony murder.
• Model Penal Code is silent on duration between felony and murder.

People v. Hickman

[297 N.E.2d 582] 1973 Illinois 3d District Appellate Court

• Hickman and Rock, unarmed, are fleeing a robbery. Cop kills another cop accidentally, thinking it is one of the burglars.
• Holding: Hickman is guilty of felony murder, as murder occurred in course of escape, even though Hickman did not shoot the victim.
• Court looks at two cases: People v. Payne--victim dies, killer is either victim or defendant. Morris: co-defendant dies, victim fires fatal shot.
• Illinois Supreme Court found Payne to be felony murder, although Morris was not felony murder.
• Court focuses on identity of deceased: in Payne, deceased is innocent, whereas in Morris, deceased was felon.
• Morris: justifiable homicide--no crime at all--this is killing that the law 'authorizes' (where robber is killed).
• Payne: at best, excusable homicide. Police officer would have excuse for homicide, even though it is not desirable behavior.
• Illinois court decides case is more similar to Payne than to Morris, since victim was innocent.
• New York, however, provides exceptions for felony murder. In particular, on facts of Hickman, defendants were not armed.
• In absence of felony murder rule, what could Hickman be guilty of?
  • Burglary, obviously.
  • Possibly involuntary manslaughter--recklessly ignored danger of which he was aware, when cop yelled 'halt police.'

DeSean? McCarthy?

• Andre borrows car, turns it over to McCarthy? for a couple of dime bags of cocaine.
• After a week, car has not been reported as stolen. McCarthy? sees police car following him, starts to flee. Eventually McCarthy? jumps out of car, starts running. Pursuing police officer eventually hit by car of cop aiding in chase.
• Question is whether McCarthy? can be convicted of felony murder.
• McCarthy? waived right to jury trial, hoping for better verdict from judge.
• Ultimately received 40 year sentence, although given first-degree murder conviction should have been life sentence. Case is on appeal.

People v. Washington

[402 P.2d 130] 1965 California Supreme Court

• California rule: in order to be convicted of felony murder, actual killing must be committed by the felon.
• Washington is not guilty, since burglary victim killed co-burglar.

Taylor v. People

[477 P.2d 131] 1970 California Supreme Court

• Taylor is outside in escape car. Smith and Daniels are robbing Jax Liquors, when Mrs. Smith shots robbers. Then Mr. Smith grabs gun and shots robbers. Smith died and Daniels was wounded.
• Can Taylor be convicted of murder?
• Under California law, from Washington, we know that this cannot be felony murder, since the murder was not actually committed by the defendant.
• But under vicarious liability, Taylor can be liable for Daniels and Smith's abandoned and malignant heart, in waving gun around. Defendants had mens rea (abandoned and malignant heart), did act (held up liquor store), that caused a death.
• Degree of murder--California Penal Code § 189 provides for first degree murder when murder is perpetrated by means of a destructive device or which is committed in perpetration of felony (i.e., felony murder).
• Paradox: Taylor's crime cannot be felony murder, since he didn't pull the trigger, but since it was committed in course of felony, it is first degree murder.

Hypothetical Question

• A and B commit burglary, escape in Cadillac. Police approach B who fires on cop, another cop then kills B. Is A guilty of felony murder?

Adam to Carrie are 'on' for tomorrow (on death penalty material).

Wednesday, February 20, 2002 (Class 20) (Assignments 20-21)

Merger

• Although Model Penal Code abolished felony-murder, § 210.2 (1)(b) allows for circumstances manifesting extreme indifference to value of human life to be presumed under enumerated felonies.
• Merger is only an issue in jurisdictions where non-named felonies can contribute to felony-murder (second degree murder).
• Without the doctrine of merger, almost every intentional killing could be felony-murder, since when the criminal draws the gun and fires, he is guilty of attempted murder, assault with a deadly weapon, etc.. But this is not what felony murder is trying to capture.

People v. Moran

[158 N.E. 35] 1927 New York Court of Appeals (cb501)

• If charge was felony-murder, State would not have to prove any mens rea apart from that required for the felony; also, doesn't give the jury any other options other than first-degree murder and acquittal.
• Other alternatives would include premeditated and deliberate murder or second-degree murder (all intentional killings which are neither felony-murder nor premeditated murder in New York).
• For felony-murder, first need to decide what sort of predicate felony you have (what sort of felony is it in the abstract) and then merger­-does the felony merge into the murder?

• Courts come up with doctrines of felony-murder, merger, etc., in order to limit reach of felony-murder.
• Model Penal Code does not recognize felony-murder.
• Need to know that no court will allow the immediate preceding act of 'starting' the murder will never be a predicate felony (except possibly Illinois).

History of Capital Punishment

• Roots of Capital Punishment go back to roots of punishment itself
• Modern move against capital punishment started in 18th century by Italian Biccardi, picked up by Hume.
• Arguments against capital punishment: moral/religious, utilitarian.
• Historically, in England, nearly everything was capital crime; but very few were actually executed.
• Pennsylvania, latter part of 18th century, developed idea of degrees of murder, in order to give juries the choice to convict someone and know they wouldn't be executed.
• Tennessee, mid-19th century, idea that juries had discretion about whether death was imposed or not.
• By middle of 20th century, jury discretion was widespread.
• After World War II, movement against capital punishment began; now effectively all of Europe has renounced Capital Punishment and new countries must abolish Capital Punishment in order to join European Union.
• NAACP turned its attention towards capital punishment, from 1967 on, there were no executions; all executions were stayed, waiting for issue to get to Supreme Court.
• If capital punishment was arbitrary and capricious because it was discretionary, some states moved to make it mandatory; others moved towards model penal code approach. Irony is that people who drafted model penal code were all imposing capital punishment, but they thought they would come up with a fair way of imposing capital punishment if it were imposed.
• Every state that currently has capital punishment, first need to be convicted of most serious form of murder, followed by separate proceeding. Typical requirement to be death eligible is aggravating circumstance beyond most serious form of murder. Then jury needs to weigh aggravating circumstances against mitigating circumstances, to decide whether defendant can live.
• Separate out guilt phase from sentencing phase: pragmatic reason is that defendant might want sentencer to have some information he would not want guilt phase jury to have because it might prejudice his case. Most important mitigating evidence for sentencer is that defendant takes responsibility (and is sorry), but wouldn't want guilt phase jury to hear this.
• 1976 Supreme Court case approving current system: Greg v. Georgia: Can't have mandatory death sentences, but can have structured discretion.
• Biggest variable in death penalty numbers is how many cases are charged as death penalty cases (i.e., the prosecutor).
• #1 aggravating circumstance for capital case is felony-murder.

Thursday, February 21, 2002 (Class 21) (Assignment 21)

Jones v. United States

[527 U.S. 373] 1999 United States Supreme Court (cb519)

• Jones, soldier on Air Force property, in Texas, sexually assaulted and murdered Tracie Joy McBride?.
• Federal Law is applied because crime occurred on federal property.
• First, Jones needs to be found to be death eligible:
  • Intent to commit the murder
  • Aggravating circumstance (need to have at least one statutory aggravating circumstance)
• Need to have some sort of narrowing function to limit capital murders from all murders
• After making determination that person is death eligible, States range greatly--Georgia allows capital punishment for anything at that point, North Carolina requires balancing aggravating and mitigating factors.
• Federal system requires jury to consider all factors, both statutory and non-statutory, that jury finds aggravating, as well as all factors that the jury finds mitigating.
• Defendant claimed that prosecutor was 'double counting' non-statutory aggravating circumstances, putting too much weight on aggravating 'side of scale' if jury is 'weighing' them.
• Court finds that even if aggravating circumstances were duplicative, they were not harmful, but they were not duplicative (this is actually minority opinion).
• Defendant also argues that aggravating circumstances are overly broad and unconstitutionally vague ('heinous, atrocious, or cruel').
• Distinction between vulnerable victim and victim impact. Supreme Court in 1980's decided it was unconstitutional for jury to look at victim impact evidence; two years later Court reversed itself in Booth v. Maryland, finding that victim impact evidence is always admissible.
• Main justification for Gregg was to eliminate capriciousness in capital sentencing, but with introduction of non-statutory aggravating and non-statutory mitigating factors (in Lockett), system seems to have returned to its pre-Gregg capriciousness.
• Defendant requested instruction that if jury deadlock occurred, judge would sentence him to life imprisonment without possibility of parole. Court finds that it is constitutionally required to tell jury that life imprisonment alternative exists, but not required to tell them that this alternative will be imposed if jury is deadlocked.

Lockett v. Ohio

[438 U.S. 586] 1978 United States Supreme Court (cb538)

• 1972 Furman abolished Capital Punishment, 1976 Gregg reinstated Capital Punishment, must be non-arbitrary.
• Lockett essentially ended effort to produce consistency in capital punishment.
• Ohio has modified balancing system, where only three mitigating factors can be considered.
• Court finds that limiting mitigating factors is unconstitutional; even information concerning prisoner's conduct since the time of his arrest may be material in determining mitigating factors.
• Under Lockett standard, sentencing hearing becomes psychological portrait of defendant. Try to humanize defendant, to make jury think he is 'one of them'.
• Most contemporary death penalty litigation focuses on whether proper mitigating and aggravating factors were allowed, whether the jury instructions were proper, or whether the person was adequately represented.

Tison v. Arizona

[481 U.S. 137] 1987 United States Supreme Court (cb546)

• Problem with 8th amendment "cruel and unusual" is that punishment may be cruel and usual--capital punishment was common when bill of rights was adopted and is arguably common today. In 1972, when there hadn't been an execution for several years, and States passed new capital statutes, proponents could use 'evolving standards of decency standard'.
• Enmund case, cited frequently in Tison, finds capital punishment under these circumstances to be quite rare, therefore cruel and unusual.
• Tisons broke father and cell-mate out of jail with guns, ended up killing people whose car they had hijacked.
• Defendant did not actually kill the people, but participated in jail break and drove car.
• Court looks at state practice with respect to situation of defendant to determine if it is common. Very odd way to determine constitutional law.
• Big current issue with respect to usualness: whether to take into account foreign jurisdictions.

McCleskey? v. Kemp

[481 U.S. 279] 1987 United States Supreme Court (cb555)

• One of the most important cases determined by Supreme Court in last thirty years.
• Victim was white police officer. Defendant denied that he committed crime.
• Case occurred in Fulton County, Atlanta, where there are relatively few capital trials.
• When trial judge denied relief on grounds of racial discrimination, granted relief on other grounds.
• After this suit, McCleskey? filed another habeas corpus petition, won at circuit level, denied again at Supreme Court on basis that claims should have been raised in first petition.
• NAACP legal defense fund commissioned 'Baldus study', massive work on racial discrimination in death penalty. Then selected McCleskey? case, since it was black defendant who was accused of killing white victim.
• Supreme Court assumes study is accurate (there is now no dispute on accuracy of Baldus study).
• Defendant raises 14th amendment (equal protection clause) and 8th amendment (cruel and unusual punishment) claims.
• For 14th amendment, need to show discriminatory intent.
• Defendant would need to show that race was a conscious factor in decision-making, either in his race or in victim's race.
• 14th amendment claim is denied because defendant can't prove he was intentionally discriminated against.
• 8th amendment claim: race is an arbitrary factor. To the extent that the system uses race as a criteria for seeking (or not seeking) death penalty, the system is unconstitutional.
• E.g., if Georgia had rule that people whose name began with A-F and committed crime on Monday, they would be eligible for death, this would be recognized as an arbitrary system, and thus unconstitutional.
• Major actor in racial disparity of death penalty is actually prosecutor, not juries or police. Yet court argues that jury discretion is essential to working of criminal justice system.

Spring Break (February 23-March 2)

Notes are continued in ClassNotesCriminalLawGivelber2, which should load faster!