UNIT TEN - Involuntary Commitment - Diminished Capacity - Intoxication - Infancy :
Every good and excellent thing in the world stands moment by moment
on the razor edge of danger and must be fought for.
Thornton WilderBACK TO BASICS - HERE'S WHAT'S COOKING TODAY.
DIMINISHED CAPACITY (RESPONSIBILITY) - THE UNIT IS ABOUT DIMINISHED CAPACITY AND THE EFFECT OF ADDICTION ON THE VOLUNTARINESS OF AN ACT. DIMINISHED CAPACITY SEEMS TO BE A CONCEPT THAT. LIKE INSANITY, INVOLVES MENTAL DISORDER. HERE THOUGH THE ISSUE RELATES TO THE CAPACITY OF THE DEFENDANT TO FORM THE REQUISITE MENTAL STATE. SOME STATES DON'T ALLOW EXPERT TESTIMONY ON THE ISSUE OF CAPACITY TO FORM MENS REA. A NEW USSC CASE, CLARK V. ARIZONA, 548 U.S. __, 126 S.CT. 2709 (2006), SUGGESTS THAT IT IS CONSTITUTIONAL FOR A STATE TO PREVENT EXPERT TESTIMONY ON THE CAPACITY TO FORM THE REQUISITE MENTAL STATE, BUT NOT CONSTITUTIONAL TO PREVENT THE DEFENSE FROM PRESENTING LAY AND /OR EXPERT FACTUAL TESTIMONY RE THE ACTUAL PRESENCE OR ABSENCE OF THE REQUISITE MENTAL STATE. READ CLARK FOR YOURSELF. DIMINISHED CAPACITY SOUNDS GOOD FOR DEFENDANTS LIKE WETMORE WHO WOULD OBVIOUSLY PREFER TO WALK RATHER THAN BEING MANDATORILY COMMITTED TO AN INSANE ASYLUM ON A NGBROI VERDICT. NOTE THAT SUBSEQUENT TO WETMORE CALIFORNIA, BY PUBLIC REFERENDUM, ABOLISHED THE DIMINISHED CAPACITY RULE. WE LOOKED AT SEC. 4.02 MPC, WHICH SEEMS TO BE A CLASSIC DIMINISHED CAPACITY LAW. ALSO, MPC 210.3(1)(2) SEEMS TO LOWER MURDER TO MANSLAUGHTER WHEN THE KILLING IS COMMITTED UNDER THE INFLUENCE OF EXTREME EMOTIONAL DISTURBANCE. THAT LOOKS LIKE A SPECIAL DIMINISHED CAPACITY (RESPONSIBILITY) THAT DOES NOT EXCUSE BUT MITIGATES MPC CULPABILTY IN MURDER CASES. THERE IS ALSO A CASE IN TEXAS DEALING WITH THE SUBJECT OF DIMINISHED CAPACITY. IT'S CALLED PENRY V. STATE, 903 S.W. 2D 715 (TEX. CRIM. APP. 1995). THE PROF DISCUSSES IT BRIEFLY IN SILVER BULLETS II. ONE DEVELOPMENT IN THE DEATH PENALTY CASE LAW SEEMS TO SMACK OF A RECOGNITION OF DIMINISHED CAPACITY- THE USSC HELD IN ATKINS V. VIRGINIA, 536 U.S. 304 (2002) THAT IT VIOLATES THE CRUEL AND UNUSUAL PUNISHMENT PROVISION OF THE EIGHTH AMENDMENT TO SENTENCE A MENTALLY RETARDED PERSON TO DEATH. OF COURSE, THIS ONLY APPLIES TO THE DEATH PENALTY CASES, BUT IT DOES SEEM LIKE A RECOGNITION OF A CONSTITUTIONALLY BASED LESSER DEGREE OF CRIMINAL RESPONSIBILITY (DIMISHED CAPACITY) FOR A PERSON WHO WAS NOT INSANE AT THE TIME OF THE ACT.
ADDICTION - IN ROBINSON V. CALIFORNIA, 370 U.S. 660 (1962) THE USSC HELD THAT PUNISHING A PERSON FOR BEING ADDICTED TO A DRUG VIOLATED THE EIGHTH AMENDMENT PRHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT. ON THE RESPONSIBILITY FOR ADDICTION ISSUE, THE UT (THE MOTHER OF ALL TEXAS LAW SCHOOLS) CRIMINAL DEFENSE CLINIC DID AN INEFFECTIVE JOB IN CHOOSING AND PRESENTING POWELL V. TEXAS AS A TEST CASE FOR THE APPLICATION OF PUBLIC INTOXICATION STATUTES TO CHRONIC ALCOHOLICS. (THEIR PROFESSOR SHOULD HAVE KNOWN BETTER THAN TO BITE OFF MORE THAN HIS STUDENTS COULD CHEW AND SHOULD HAVE ENLISTED HELP IN GATHERING TOGETHER MUCH MORE PERSUASIVE EVIDENCE REGARDING CHRONIC ALCOHOLISM.) TEXAS HAS A PUBLIC INTOXICATION LAW IN SEC. 49.02 TPC. [I'M WONDERING IF THERE COULD BE A LAW THAT PUNISHES ADDICTED MOTHERS FOR DAMAGING THEIR UNBORN KIDS, EVEN IN THE EMBRYONIC STAGES, BY TAKING DRUGS, DRINKING BOOZE, AND/OR SMOKING TOBACCO WHILE CARRYING A CHILD. SHOULD THE ADDICTION ABSOLVE THEM FROM INJURY TO A CHILD. REMEMBER THAT SINCE SEPT. 1, 2003, AN "INDIVIDUAL" IN TEXAS IS "A HUMAN BEING WHO IS ALIVE AND AN UNBORN CHILD AT EVERY STAGE OF GESTATION FROM FERTILIZATION UNTIL BIRTH." SEE SECTION 1.07 (26) TPC. PASS THE FRUIT JAR, HOMER!]
COMMITMENT AND REGISTRATION OF "SEXUALLY VIOLENT PREDATORS" WHO ARE PEDOPHILES - (SEE SILVER BULLETS SEX CRIMES) IN RECENT YEARS THERE HAS BEEN A TREND IN THE USSC TO UPHOLD STATUTES THAT REQUIRE REGISTRATION AND ALLOW FOR "CIVIL" COMMITMENT OF SEX OFFENDERS WHO HAVE COMPLETED THEIR CRIMINAL SENTENCES. THESE ARE CALLED "SVP" LAWS, SHORT FOR SEXUALLY VIOLENT PREDATOR LAWS. THE USSC HAS DENIED DOUBLE JEOPARDY AND EX POST FACTO CLAIMS IN THESE CASES SEE KANSAS V. HENDRICKS, 521 U.S. 346 (1997). SEE ALSO THE RECENT CASE OF SMITH V. DOE, 538 U.S. 84 (2003). THE COURT VIEWS THE LOSS OF FREEDOM ACCOMPANYING THESE STATUTES AS A NON-PUNITIVE CIVIL REMEDY. CHECK OUT THE CENTER FOR SEX OFENDER MANAGEMENT AND THIS MEMBERS-ONLY DISCUSSION GROUP OF DEFENSE ATTORNEYS WHO REPRESENT ALLEGED SEXUAL PREDATORS IN STATES HAVING CIVIL COMMITMENT STATUTES. BY LATE 2008, APPROXIMATELY TWENTY OTHER STATES, E.G., NEW YORK, HAVE ENACTED "SVP' LAWS. TEXAS, MODELING AFTER THE KANSAS APPROACH, ENACTED ITS OWN VERSION OF THE CIVIL COMMITMENT FOR SEXUALLY VIOLENT PREDATORS LAW IN 2003. I'M FULLY AGAINST PEDOPHILES AND RAPISTS, BUT I THINK MAYBE THE LEGISLATURE AND COURTS HAVE GONE OVERBOARD IN CREATING THESE SO-CALLED NON-PUNITIVE "CIVIL" COMMITMENT STATUTES THAT TAKE LIBERTY AWAY FROM A PERSON WHO MAY HAVE ALREADY PAID HIS CRIMINAL DEBT TO SOCIETY. TO THE EXTENT THAT THESE COMMITMENT STATUTES SEEK TO INCAPACITATE THE SUBJECT BASED WHOLLY UPON FEAR OF FUTURE DANGEROUSNESS, THEY SEEM PUNITIVE TO ME, PARTICULARLY IF NO TREATMENT WILL BE AFFORDED. I'M ALSO CONCERNED ABOUT SEX REGISTRATION STATUTES LIKE TEXAS' CHAPTER 62 (SEX OFFENDER REGISTRATION PROGRAM) ARTS. 62.001- 62.408 CCP. IF A YEAR OLD GUY HAS CONSENSUAL SEX WITH HIS 16-YEAR-OLD GIRLFRIEND AND IS CONVICTED OF STATUTORY RAPE OR SEXUAL ASSAULT, IT SEEMS HARSH TO BRAND HIM AS A SEX OFFENDER. HAVING YOUR NAME AND ADDRESS ON THE INTERNET AS A SEX OFFENDER MAY BE OVER THE-TOP FOR FOLKS WHO AREN'T REALLY SEXUAL PREDATORS.
INFANCY OR IMMATURITY DEFENSE (1) (2 PBS "Little Criminals) - EVEN THOUGH JUVENILE LAW IS BEYOND THE SCOPE OF OUR COURSE, WE NEED TO KNOW A BIT ABOUT THE INFANCY (IMMATURITY) DEFENSE TO CRIMINAL RESPONSIBILITY, PARTICULARY IN LIGHT OF RECENT MOVEMENTS IN THE STATES TO INCAPACITATE CERTAIN JUVENILES WHO ENGAGE IN EXTREMELY VICIOUS AND DANGEROUS CONDUCT THAT WOULD CARRY OTHERWISE CARRY CRIMINAL BLAMEWORTHINESS IF COMMITTED BY AN ADULT. AS STATES BECAME AWARE THAT THE JUVENILE JUSTICE SYSTEM PROVIDED REFUGE FOR DANGEROUS PREDATORS WHO COULD HIDE BEHIND THE TRADITIONAL VIEW THAT THE JUVENILE JUSTICE SYSTEM WAS TO ACT SOLELY IN THE BEST INTERESTS OF THE CHILD, SOME OF THE BARRIERS TO CRIMINAL RESPONSIBILITY HAVE COME DOWN.
CHILDREN TODAY ARE TYRANTS. THEY CONTRADICT THEIR PARENTS,
GOBBLE THEIR FOOD, AND TYRANNIZE THEIR TEACHERS.
SOCRATES (2000 YEARS AGO)GIVE ME A CHILD FOR THE FIRST SEVEN YEARS,
AND YOU MAY DO WHAT YOU LIKE WITH HIM AFTERWARDS
JESUIT MAXIMDIOGENES STRUCK THE FATHER WHEN THE SON SWORE.
THE SON WILL NOT SHARE THE GUILT OF THE FATHER, NOR WILL THE FATHER SHARE THE GUILT OF THE SON.
EZEKIEL 18:20WHAT IS THIS DEFENSE OF INFANCY OR AGE OR IMMATURITY? (1 - ARTICLE) (2) APPARENTLY, A KID CAN COMMIT WHAT IS A CRIME ON ITS FACE, BUT NOT BE LIABLE (CRIMINALLY RESPONSIBLE) SOLELY BECAUSE S/HE IS BELOW A CERTAIN CHRONOLOGICAL AGE WHEN S/HE COMMITS THE CRIME. I'LL WAGER THAT WILL BE ON THE EXAM SOMEWHERE. I'LL BE ON THE LOOKOUT FOR PROBLEMS THAT INDICATE THE AGE OF THE ACTORS. HERE ARE A COUPLE OF REFERENCES (1), (2) TO THE CONCEPTS OF CRIMINAL RESPONSIBILITY OF CHILDREN AND LABELING OF PRE-TEEN AND YOUTHFUL TEEN CRIMINALS AS "JUVENILE DELINQUENTS" RATHER THAN CRIMINALS. NOTE THAT IN RE GAULT, 387 U.S. 1 (1967) GAVE JUVENILES THE RIGHT TO COUNSEL. IN RE WINSHIP, 397 U.S. 358 (1970) ESTABLISHED THAT PROOF BEYOND A REASONABLE DOUBT IS THE BURDEN OF PROOF PLACED ON THE PROSECUTION AT THE ADJUDICATORY STAGE. McKEIVER V. PENNSYLVANIA, 403 U.S 528 (1971) ESTABLISHED THAT THERE IS NO RIGHT TO A JURY TRIAL IN JUVENILE PROCEEDINGS. [NOTE: TEXAS LAW DOES PROVIDE A RIGHT TO A JURY TRIAL. TEXAS ALSO ALLOWS SOME OTHER RIGHTS NOT NECESSARILY VOUCHSAFED BY THE FEDERAL CONSTITUTION, E.G., INSANITY DEFENSE (SECTION 55.51 FAMILY CODE), SPEEDY TRIAL (SECTION 56.01 FAMILY CODE), BAIL IN CAPITAL MURDER CASES THOUGH THE DEATH PENALTY IS NOT AVAILABLE.] QUERY: DO YOU THINK INFANTS ENJOY INFANCY AS MUCH AS ADULTS SEEM TO ENJOY ADULTERY?
NUMBER CRUNCHERS TELL US THAT MORE CRIMES ARE COMMITTED BY YOUNGSTERS UNDER FIFTEEN THAN BY GROWNUPS OLDER THAN TWENTY-FIVE. IN TEXAS, ROUGHLY 60 PERCENT OF ALL PERSONS ARRESTED FOR MAJOR CRIMES ARE UNDER THE AGE OF TWENTY-FIVE. JUVENILES ACCOUNT FOR ABOUT 25 PERCENT OF ALL ARRESTS IN TEXAS. OF THOSE ARRESTED NATIONALLY, ROUGHLY 18 PERCENT ARE UNDER THE AGE OF EIGHTEEN. THERE ARE A LOT OF FOLKS WHO BELIEVE THAT THE NUMEROUS STATE REFORM SCHOOLS FOR JUVENILE DELINQUENTS ARE LITTLE MORE THAN "HOTHOUSES FOR PSYCHOPATHS," TRAINING THESE WAYWARD DELINQUENTS FOR FUTURE LIVES OF CRIME.
I NEED TO MEMORIZE THE THREE CATEGORICAL CUT OFF DATES FOR THE COMMON LAW INFANCY (INCAPACITY BASED ON DATE OF BIRTH) DEFENSE: (1) UNDER 7 - NO CRIMINAL RESPONSIBILITY, I.E., REGARDLESS OF THEIR LEVEL OF EMOTIONAL MATURITY, INFANTS WHO ARE NOT YET 7 AT THE TIME OF THE OFFENSE ARE VIEWED BY THE CRIMINAL LAW TO TOTALLY LACK CAOPACITY FOR CRIMINALITY UNDER ANY CIRCUIMSTANCES; (2) 7 THROUGH 13 - REBUTTABLE PRESUMPTION OF LACK OF CRIMINAL RESPONSIBILITY; IN OTHER WORDS, BETWEEN THE AGES OF 7 AND 13 A CHILD IS REBUTTABLY PRESUMED INCAPABLE OF FORMING CRIMINAL INTENT, EXCEPT THAT MALE CHILDREN UNDER 14 WERE CONCLUSIVELY PRESUMED LEGALLY INCAPABLE OF RAPE; AND (3) 14 AND OVER - TREATED AS AN ADULT BY THE CRIMINAL LAW. THE OPERATIVE DATE INSOFAR AS AGE IS THE DATE THE CRIME WAS COMMITTED. [NOTE: SOME BAR LECTURERS, PROFESSORS AND BOOKS GET THIS WRONG, SUGGESTING THAT THE 14 YEAR OLD IS INCLUDED IN THE SECOND CATEGORY ABOVE. NOT TRUE. FOURTEEN YEAR OLDS ARE ADULTS AT COMMON LAW.]
IT LOOKS LIKE THE MPC DOESN'T DEAL WITH JUVENILE (1) PROCEDURE, BUT MODEL PENAL CODE SECTION 4.10 DOES RAISE THE AGE OF INFANCY (THE MPC CALLS IT "IMMATURITY") TO 15 (UNDER 16) AND ALSO GIVES THE JUVENILE COURT EXCLUSIVE JURISDICTION OVER THEM. UNDER THE MPC, IT ALSO LOOKS LIKE KIDS OF CERTAIN AGES, I.E., 16 AND 17, ARE WITHIN THE DISCRETIONARY JURISDICTION OF THE JUVENILE COURT, UNLESS THE JUVENILE COURT WAIVES THE JURISDICTION AND CONSENTS TO THE TRANSFER OF THE 16 OR 17 YEAR OLD JUVENILE TO STAND TRIAL AS AN ADULT IN CRIMINAL PROCEEDINGS.
TEXAS PENAL CODE SECTION 8.07 TPC IS THE OPERATIVE TEXAS PENAL CODE PROVISION, BUT NOTICE THAT THERE IS A LOT MORE JUVENILE LAW IN TITLE THREE OF THE TEXAS FAMILY CODE. SECTION 8.07(a) TPC SETS UP A GENERAL PROHIBITION AGAINST PROSECUTING ANYONE WHO WAS UNDER FIFTEEN (15) AT THE TIME THE OFFENSE WAS COMMITTED, EXCEPT: (1) PERJURY AND AGGRAVATED PERJURY WHERE THE PROOF SHOWS THE MINOR UNDERSTOOD THE OATH; (2) CERTAIN TRAFFIC STATUTES; (3) VIOLATION OF MUNICIPAL TRAFFIC ORDINANCES; (4) FINEABLE ONLY MISDEMEANORS, OTHER THAN PUBLIC INTOXICATION; (5) VIOLATION OF A PENAL ORDINANCE OF A POLITICAL SUBDIVISION. PURSUANT TO SECTION 8.07(c) TPC, UNLESS THE JUVENILE COURT WAIVES JURISDICTION AND CERTIFIES KIDS WHO WERE FIFTEEN OR SIXTEEN AT THE TIME OF THE CRIME, THEY CANNOT BE PROSECUTED AS ADULTS EXCEPT AS MENTIONED ABOVE. THE TEXAS JUVENILE COURT HAS EXCLUSIVE JURISDICTION OVER CHILDREN UNDER 17. UNLESS THE JUVENILE COURT WAIVES JURISDICTION AND CERTIFIES THE INDIVIDUAL FOR CRIMINAL PROSECUTION, A PERSON MAY NOT BE PROSECUTED FOR OR CONVICTED FOR NON 8.07(a) OFFENSES. WAIVER IS PERMITTED IN THE CASE OF JUVENILES 14 OR OVER ALLEGED TO HAVE COMMITTED A CAPITAL FELONY, AN AGGRAVATED CONTROLLED SUBSTANCE FELONY, OR A FELONY OF THE FIRST DEGREE. IF THE JUVENILE IS 15 OR OLDER, TRANSFER MAY BE ORDERED FOR SECOND DEGREE, THIRD DEGREE, AND STATE JAIL FELONIES. IF THE JUVENILE COURT WAIVES JURISDICTION OF A JUVENILE, IT MUST PROVIDE A STATEMENT OF REASONS FOR ITS DECISION TO TRASFER. SEE KENT V. UNITED STATES, 383 U.S. 541 (1966); SEE ALSO BREED V. JONES, 421 U.S. 519 (1975); SCHALL V. MARTIN, 467 U.S. 253 (1984). A NUMBER OF FACTORS MUST BE CONSIDERED AT THE NON-JURY TRANSFER HEARING, E.G., THE SOPHISTICATION AND MATURITY OF THE CHILD, THE RECORD AND PREVIOUS HISTORY OF THE CHILD, WHETHER THE OFFENSE WAS AGAINST PROPERTY OR A PERSON, PROTECTION OF THE PUBLIC, AND REHABILITATION OF THE CHILD. THE TEXAS WAIVER PROCEDURE CAN BE FOUND IN SECTION 54.02 OF TITLE THREE OF THE TEXAS FAMILY CODE. WAIVER AND CERTIFICATION CAN ONLY BE DONE AFTER A COMPLETE DIAGNOSTIC STUDY AND EVALUATION.
TEXAS JUVENILE LAW IS QUITE COMPLEX AND MUCH TOUGHER THAN THE MPC. IN RECENT YEARS, THE COURTS HAVE BEEN GIVEN POWER TO LAY SOME HEAVY SENTENCES ON JUVENILES UNDER THE JUVENILE LAW (TITLE THREE OF THE TEXAS FAMILY CODE), ESPECIALLY FOR SERIOUS CRIMES. CERTAIN CRIMES CAN BE REFERRED BY THE STATE TO THE GRAND JURY FOR APPROVAL OF A PETITION OF DELINQUENCY, AS OPPOSED TO CERTIFICATION, TRANSFER, AND INDICTIMENT. THOSE CRIMES ARE CAPITAL MURDER, MURDER, AGGRAVATED KIDNAPPING, AGGRAVATED SEXUAL ASSAULT, DEADLY ASSAULT ON A LAW ENFORCEMENT AGENT, ATTEMPTED CAPITAL MURDER, AGGRAVATED ROBBERY, INJURY TO A CHILD, CERTAIN SERIOUS DRUG OFFENSES, SOLICITATION, INDECENCY WITH A CHILD, CERTAIN SERIOUS ATTEMPT CRIMES, SEXUAL ASSAULT OF A CHILD AND HABITUAL FELONY CONDUCT. SEE SECTION 53.045(a) FAMILY CODE. WHEN THE CHILD IS FOUND DELINQUENT, BASED ON THE GRAND JURY APPROVED PETITION'S ALLEGATION OF DELINQUENCY ARISING FROM THESE OFFESES, THE COURT OR JURY IN THE JUVENILE PROCEEDING CAN SENTENCE THE JUVENILE TO COMMITMENT TO THE TEXAS YOUTH COUNCIL (REFORMATORY SYSTEM) UNTIL AGE 21 WITH THE POSSIBILITY OF A TRANSFER TO THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE FOR TERMS NOT TO EXCEED 40, 20, OR 10 YEARS, DEPENDING ON THE CRIME. SEE SECTIONS 54.04(d)(3), 54.11 FAMILY CODE. SOME OF THESE JUVENILES MAY CONCEIVABLY NOW SPEND AS MUCH OR MORE TIME IN CUSTORY THAT THEIR ADULT COUNTERPARTS. NOTICE THAT DISCOVERY AND EVIDENTIARY MATTERS ARE GOVERNED BY THE RULES OF EVIDENCE RELATING TO CRIMINAL CASES. SEE CHAPTERS 3 AND 39 OF THE CCP.
JUVENILE COURTS EXIST IN ALL STATES. THESE STATUTES GOVERNING JUVENILES WHO COMMIT ACTS THAT ARE OTHERWISE CRIMINAL PROVIDE PROCEDURES FOR THE ADJUDICATION OF DELINQUENCY OF WAYWARD JUVENILES UNDER THE JURISDICTION OF JUVENILE COURTS. SUCH STATUTES ALSO PROVIDE FOR THE TRIAL OF CERTAIN CHILDREN AS ADULTS WHEN THE JUVENILE COURT WAIVES ITS JURISDICTION. IN THE PAST TWENTY YEARS, WELL OVER THIRTY STATES HAVE JUMPED ON THE BANDWAGON OF HARSHER TREATMENT OF JUVENILES, SOMETIMES BY EXPANDING THE LIST OF CRIMES EXCLUDED FROM JUVENILE COURT JURISDICTION AND SOMETIMES BY TRANSFERING EVER-YOUNGER OFFENDERS TO ADULT COURT. THE IDEA IS TO MAKE IT EASIER TO CHARGE AND PUNISH, AS ADULTS, YOUNG PEOPLE WHO ENGAGE IN CRIME. SOME STATES NOW ALLOW PROSECUTORS TO FILE CHARGES DIRECTLY IN CRIMINAL COURT. IN RECENT YEARS, THERE HAS BEEN A NOTICEABLE INCREASE IN CERTIFICATIONS FROM JUVENILE COURT TO THE ADULT SYSTEM.
[NOTE: EXECUTING PEOPLE FOR DEATH PENALTY CRIMES COMMITTED WHILE THEY WERE JUVENILES - IN ROPER V. SIMMONS, 543 U.S. 551 (2005), A 5-4 DECISION, THE USSC HELD IT TO BE A VIOLATION OF THE EIGHTH AMENDMENT PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT TO SENTENCE ANYONE TO DEATH FOR A CRIME HE OR SHE COMMITTED WHILE YOUNGER THAN 18 YEARS OF AGE. AT THE TIME OF THE ROPER DECISION, TWENTY EIGHT STATES PROHIBITED EXECUTION OF THOSE 17 OR YOUNGER AT THE TIME OF THEIR OFFENSE. TEXAS PROVIDED IN SECTION 8.07 (c) TPC THAT NO PERSON COULD BE PUNISHED BY DEATH FOR AN OFFENSE COMMITTED WHEN HE WAS YOUNGER THAN SEVENTEEN. OF THE 22 STATES THAT ALLOWED IT, SINCE GREGG V. GEORGIA ONLY 7 HAVE ACTUALLY CARRIED OUT SUCH AN EXECUTION. OF THOSE 22 STATES, ONLY TEXAS AND VIRGINIA HAD DONE IT MORE THAN ONCE . THE SEMI-GREAT STATE OF TEXAS HAD EXECUTED 13 AND VIRGINIA 3. PUBLIC OPINION POLLS REFLECT THAT ABOUT 26% OF THE NATION'S ADULT POPULATION FAVORS SUCH EXECUTIONS. HOW DO YOU FEEL ABOUT IT? FIVE COUNTRIES NOW ALLOW EXECUTION OF PERSONS WHO WERE UNDER EIGHTEEN AT THE TIME OF THE OFFENSE - PAKISTAN, IRAN, SAUDI ARABIA AND YEMEN. (NEED I SAY MORE?) NOTE: IT HAS BEEN ARGUED THAT THE NORMS OF CUSTOMARY INTERNATIONAL LAW BAR EXECUTION OF PERSONS FOR CAPITAL CRIMES COMMITTED BEFOFRE THEIR EIGHTEENTH BIRTHDAY. THE GENEVA CONVENTIONS, TO WHICH THE U.S. IS A PARTY, PROHIBIT SUCH EXECUTIONS DURING PERIODS OF WARTIME. SHOULD A PROHIBITION AGAINST EXECUTION OF JUVENILES BE TREATED AS A BASIC HUMAN RIGHT?
THERE SEEMS TO BE AN ANALOGY BETWEEN EXECUTING PEOPLE WHO WERE JUVIES, BASED ON CHRONOLOGICAL AGE WHEN THEY COMMITTED THE DEATH PENALTY CRIME AND EXECUTING THOSE WHO WERE MENTALLY RETARDED AT THE TIME OF THE OFFENSE. IN ATKINS V.VIRGINIA, 536 U.S. 304 (2002), THE USSC, RELYING ON THE EIGHTH AMENDMENT BAN ON CRUEL AND UNUSUAL PUNISHMENT, BARRED THE DEATH PENALTY FOR THE MENTALLY RETARDED. THE STRONG PROBABILITY THAT JUVIES, E.G., THOSE UNDER 18, HAVE THE SAME RISKS OF COGNITIVE DEFICITS AND INCOMPLETE NEUROPSYCHOLOGICAL DEVELOPMENT AS THE RETARDED IS A GOOD REASON FOR THE ROPER V. SIMMONS, 543 U.S. 551 (2005) DECISION.
LIFE WITHOUT PAROLE FOR THOSE UNDER 18 AT THE TIME OF THE CRIME - GRAHAM V. FLORIDA, 560 U.S. __, 130 S.CT. 2455 (2010) HELD THAT THE EIGHTH AMENDMENT PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT BARS SENTENCING A JUVENILE TO LIFE WITHOUT PAROLE FOR A NONHOMICIDE CRIME. MILLER V. ALABAMA, __ U.S. __, 132 S.CT. 2455 (2012) HELD THAT MANDATORY LIFE WITHOUT PAROLE FOR THOSE UNDER 18 AT THE TIME OF THEIR CRIMES (INCLUDING CRIMINAL HOMICIDES SUCH AS CAPITAL MURDER) ALSO VIOLATES THE EIGHTH AMENDMENT.]
AFTER THREE HOURS OF MIDNIGHT READING - FEELIN' STRUNG OUT, BURNED OUT, LEFT OUT, AND HUNG OUT TO DRY; NIGHT, NIGHT, CARO DIARIO.
UNIT NINE- Impact of Mental Illness - Incompetency (Execution, Stand Trial)- Insanity Defense:
Yo, loco poco. It's now time to start thinking about so-called "confession and avoidance" defenses to criminal responsibility, where the defense does not deny the commission of the offense but offers up a justification or excuse for it. In criminal law, as in martial arts, it is often more efficient to deflect an oncoming force than to oppose it directly. This unit starts, however, with a focus on incompetency (1) as a bar to proceedings rather than insanity as a defense to criminal liability. Incompetency seems to be a procedural bar to being able to try a person for a crime and, also, under the Ford v. Wainwright and Atkins v. Virginia cases, a bar to being able to execute an incompetent or mentally retarded prisoner under a death sentence.(Texas Incompetency to Stand Trial Law - Art. 46B CCP),(Federal Law Re Incompetency as a Bar to Trial -18 U.S.C. 4241),(Texas Competency to Be Executed Statute - Art. 46.05) [Note: I found a case that considered the question of "medicate to execute." Here the USSC refused to intercede, i.e., denied certiorari, in a case where the 8th Circuit had upheld executing an inmate who has regained competency through forced medication that is part of appropriate medical care. See Singleton v. Norris, 540 US 832 (2003) and 319 F.3d 1018 (8th Cir. 2003). There is also case law that does support the government's right to forcibly administer drugs, e.g., anti-psychotics, to a defendant in order to restore competency to stand trial for a nonviolent crime. See Sell v. United States, 539 U.S. 166 (2003)] The theory of freezing the proceedings seems to be similar in both instances. In the case of trial, it's being able to understand the charges against you and to help your lawyer mount a defense to the charges. The prof says Sec. 46.02 CCP has the definitional test for incompetency. The MPC has it in Sec. 4.04. It looks like this has nothing at all to do with whether the defendant did the crime, but focuses more on her present ability to go forward with trial or with her date with the executioner. A good example would be the Andrea Yates (home video) case where the Houston mother drowned her five children and promptly called the police to report the incident. (It would hard to think of a more heart-breaking crime than Yates) The first question in court was whether she (Yates - TRUTV)was capable of being tried, i.e., was she competent to stand trial. She lost that round and was subsequently tried. At her trial, she claimed that she was not criminally responsible for the killings because she was "insane" (not "incompetent") at the time of the killings. The jury at her first trial found insanity, Sec. 8.01 TPC, inapplicable, convicted her, and sentenced her to life rather than death under Art. 37.071 CCP. (Query: Can water be a deadly weapon?) The Yates case was later reversed and remanded for a new trial because a state's expert gave false evidence. [Note: The expert made the state prosecutors aware of the erroneous testimony; rather than reveal it, recalling the expert to clarify the mistake, and having the jury instructed to disregard, the state prosecutors remained mum; one has to wonder whether, the jury at the first trial would still have convicted even after being instructed; if so, Texas appellate courts could well have upheld that first conviction on the ground that the revelation of the false testimony and the instruction to disregard cured the error of the expert's mistaken testimony.] Yates was retried and in July of 2006 was found not guilty by reason of insanity, i.e., guilty of the offense beyond a reasonable doubt but insane by a preponderance of the evidence at the time of the offense. As a result of the NGBRI verdict, she was committed to confinement in a maximum security state hospital for the criminally insane. More about incompetency in Silver Bullets II
It would be easy to confuse incompetency as a bar to trial with insanity as a defense, but I think I understand the difference. Insanity, a common law defense that some countries call a mental disorder defense, has to do with whether the person will be held criminally responsible for a crime he committed. (list of insanity rules) If s/he was insane (mad instead of bad), s/he is not blameworthy, even though s/he admittedly did the crime with the necessary mens rea. The focus is solely on whether s/he was insane at the time of the crime. I learned from Silver Bullets II that there have been several different definitions of insanity over the years. The M'Naghten (Right or Wrong) Rule from c/l seems to be the most popular one currently. There is a more liberal MPC Rule (Sec. 4.01) of insanity (even though the MPC doesn't use the word "insanity") that was embraced during the 70's. Shortly after creepy John Hinckley, Jr. was acquitted by reason of insanity from the shooting of President Ronald Reagan under a federal insanity definition based on MPC rule, most jurisdictions abandoned their MPC rule and went back to the M'Naghten Rule. The feds adopted an even stricter insanity test, 18 U.S.C. Section 17, along with a procedure for implementation of the defense and notice requirement, 18 U.S.C. Section 4242. The MPC rule allows a claim of insanity when a person lacked either a substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law. It seems that the MPC test has a cognitive aspect and a volitional one, either of which can constitute insanity. Texas, in Sec. 8.01 TPC, has an insanity definition that is stricter than M'Naghten. It is cognitive in that it focuses on the ability of the mind to distinguish right from wrong and not on the ability of the person to resist doing the wrong, i.e., control his conduct. The Texas rule has only a "wrong" test and requires a severe mental disease or defect to be the cause of the criminal conduct and that the inability to know it was wrong was caused by the severe mental disease or defect. I visualize an insane person as a drooling, unwashed, unshaven guy talking to himself and trying to eat the grapes off the wallpaper; pry his brains open and toads crawl out. And on the meaning of the word wrong, I understand that some jurisdictions construe it as meaning "legally" wrong and some as "morally" wrong against the prevailing standards of society. But what about the Deific Decree where a chap believes God is commanding him to commit a crime. If you really believe it's God's command and you really believe in God, wouldn't the direct command of God trump law and morality? They say, "When we talk to God it's called prayer, but, when God talks back, it's called schizophrenia." But for those who believe in a biblical God, there are all sorts of situations where the Bible depicts God as talking to people, e.g., Genesis Ch. 22: God commanded Abraham to tie his son Isaac up, slit the boy's throat, and burn him to a crisp on a wood pile as a sacrifice; Abraham even made his son carry the wood for the fire. (Of course, the Book says that as Abraham raised the knife, the Angel of God called it off and said he was just testing Abe's belief.) How can a person think it's wrong, even if the rest of us do, if the person thinks it is directly commanded by God. See the hypo below. [Note: The casebook and outside reading indicate that a few states, e.g., Utah, have abolished the insanity defense, leaving evidence of the defendant's abnormal mental condition as possible mitigation of punishment.] If you are interested in how psychiatrists classify mental disorders, check out the DSM-IV. See insanity in Silver Bullets II.
A woman in our class asked about whether the jury is entitled to know the result or consequences to the defendant of its verdict of NGBRI. The prof told us that the jury is not allowed to know. I looked it up, and I found that he was right. Art. 46C.154 CCP says that neither the court, the prosecutor nor the defense lawyer is allowed to tell the jury what will happen to the defendant if they find her NGBRI. The USSC said the same thing about the federal NGBRI verdict. See Shannon v. United States, 512 US 573 (1994). WOW! I'll bet the prosecution (and maybe some of the dyed-in the-wool prosecutors who become judges) really likes that rule. Obviously, if the jurors thought that Ms. Yates might be leaving the courthouse on the same elevator as themselves, they understandably might not find her NGBRI, even though they thought she was crazy as an out-house rat.
I did a bit of checking and found that the incompetency issue in federal court involves three steps. First, the court may order a one-month commitment for an initial competency evaluation if there is reasonable cause to believe the person is incompetent. See 18 USC Secs. 4241(a) and 4247 (b). Second, the court must hold a hearing to determine by a preponderance of evidence whether the person is competent. See 18 USC 4247 (d). (If the person is incompetent, the court may commit him for up to four months to determine if there is a substantial probability that he will become competent. This temporary commitment can be extended if there is substantial probability that the person will become competent within an extended time; a person can't be committed beyond the maximum for the offense.) Third, where it is found that that the person's competency can't be restored, the court must hold another hearing to determine whether the person is long-term incompetent and sufficiently dangerous to require long-term institutionalization. See 18 USC Sec. 4246.
NOTE: Here's one to think about. Does forcible administration of anti-psychotic drugs to render an accused criminal competent to stand trial in a non-capital, non-violent felony violate any constitutional rights? The USSC held that forcible medication to restore a defendant to competency to stand trial was warranted where the treatment was medically appropriate, substantially unlikely to have side effects that would undermine the fairness of the trial and where, taking into account other less intrusive alternatives, the involuntary medication is necessary to further governmental trial interests. See Sell v. United States, 539 U.S. 116 (2003).
NOTE: I read the case in the TruTV crime library about the serial killer in California who cut off his mom's head. The prof mentioned this case as one that involved extremely bizarre behavior that some might think was somewhat reflective of mental illness and an altered view of rightness and wrongness.
Our Study Group Problem: What happens when A, a paranoid schizophrenic, intentionally kills B knowing that the killing is considered legally wrong, but believing that he (A) has been commanded by God to kill B because B is the incarnation of evil sent by the netherworld to destroy all human life on Earth? This is the so-called "Deific Decree." [Bushrod Note: I think anyone who claims God is on his/her side is dangerous as hell. Ms. Yates said the devil made her do it, but some modern day terrorists and high ranking American politicians invoke their deity to justify bloodbaths and wars.] If the word "wrong" in M'Naghten means legally wrong, A isn't insane. If it means wrong in some greater overriding moral sense, it would seem that a direct command from God regarding such a great threat would trump the written law. The MPC mental responsibility section does mention "wrongfulness" as a synonym of "criminality." We need to work on this one.
With the discussion of insanity, we are now beginning to explore more of the so-called defenses to criminal responsibility. We had a taste of this with the early discussions of mistake and intoxication when we considered mens rea; each of those two relate to the absence of the required mens rea. Apparently, the insanity defense can be available even to a person who has the necessary mens rea or culpable mental state. So, I guess that's why it wasn't included earlier. It looks like accused criminals have a number of defensive theories ranging from " I didn't do it." to " I did it, but I didn't have the necessary state of mind." to "I did it with mens rea, but I had a real good reason for doing it." or "I did it but circumstances beyond my control left me unable to exercise feel will/reason." In branding a person criminal, it seems to me that one of the questions we should ask is, "How prominent a role does free will and choice have in the decision to commit crime?" What is meant by the term psychiatric determinism? Don't the shrinks think that if they can know everything about a person's psychic makeup they can determine precisely how he will react in the future to given situations? If so, how does that square with free will? Maybe it comes down to: "We must believe in free will, we have no choice!" There may be more defensive theories in upcoming assignments, but that's the way it looks so far. [That reminds me of a poem: The optimist fell ten stories, and at each window bar, he shouted to his friends, who had gathered below, "Well, so good, so far." 86
UNIT EIGHT - Feticide - Right to Die - Assisted Suicide - Suicide as Homicide - Vehicular Homicide - Intoxication Manslaughter - Causation (1) : Let's start this unit by considering a couple of subjects.The first area of study involves trying to sort out when a "human being" (or fetus) comes into existence for purposes of the criminal homicide (feticide) statutes and also when life can be said to "end" in terms of what is the legal and factual cause of a death. On the right to die issue, I find it interesting that the number of reported cases of legal euthanasia in the Netherlands was 1,933 in 2005, up from 1,886 in 2004. See the Euthanasia Poll and the cases cited there in connection with assisted suicide. Also see Barber v. Superior Court, 195 Cal. Rptr. 484 (CA. 1983) where two doctors were charged with murder and conspiracy to commit murder for ordering that food and water be removed from a patient in a persistent vegetative condition. On when a human being begins to exist under the criminal homicide statutes, note that Texas has enacted a very liberal "at every stage of gestation from fertilization until birth" definition of "individual" in Section 1.07 (26) TPC. that basically considers the fertilized egg as an individual for purposes of criminal homicide and, I suppose, all other crimes against persons, e.g., assault, and defenses, e.g., defense of a third party. This drastic expansion from the common law definition of a "person" will have some interesting history in the next five years as embryos and non-viable fetuses qualify as victims in Texas, e.g., a simple one would be - a drunk driver collides with a car containing a woman who is three weeks pregnant and who spontaneously aborts as a result of the collision (Intoxication manslaughter under Section 49.07 TPC?] The first cases under the new Texas embryo/fetus law were Lawrence v. State, 240 S.W.3d 912 (Tex. Crim. App 2007), a capital murder for the shooting death of a pregnant woman and her 4-6 week old embryo, and Flores v. State, 245 S.W.3d 432 (Tex. Crim. App. 2008), a double capital murder where, at his pregnant girlfriend's request, the defendant boyfriend stepped on her abdomen, and she then aborted twins. The girlfriend (mother) was immune from criminal homicide prosecution under the Texas law that vouchsafes the right of a woman to a consensual abortion free from liability under the criminal homicide law. See Section 19.06 TPC making it clear that Criminal Homicide Chapter 19 does not apply to the death of an unborn child if the conduct charged is conduct committed by the mother of the unborn child or lawful medical procedure performed by a physician with the requisite consent if the death of the unborn child was the intended result of the procedure, etc., and Section 49.12 TPC of Chapter 49, Intoxication and Alcoholic Beverage Offenses, making it clear that intoxication assault and intoxication manslaughter do not apply to the death of an unborn child if the conduct charged is committed by the intoxicated mother of the unborn child.
We also read some cases about causation, where, for example, you may be faced with a situation involving what looks like suicide but involves conduct of other people who may have been facilitators or who may have even encouraged or driven the suicide victim to take his/her own life. The case of Stephenson v. State, 179 N.E. 633 (Ind. 1932) (1 - D.C. Stephenson collection of papers), (2 - Madge Oberholtzer) is one where the victim took poison and failed to seek medical attention and the accused, her kidnapper, was convicted of felony-murder. (The prof said they made a TV movie of it called "Cross of Fire" that is on cable from time to time.) Another situation is the Russian Roulette case, e.g., Commonwealth v. Atencio, 189 N.E.2d 223 (Mass. 1963), where the other participants in the deadly game were found guilty of reckless homicide (involuntary manslaughter) based on a finding that they collectively encouraged the victim to kill himself. [Note: Every 17 minutes, someone in the U.S. commits suicide. Each year, more than 500,000 Americans make suicide attempts serious enough to require emergency room treatment. Some 30,000 die. At English common law, suicide was a felony equivalent to murder. Under American law, suicide is not punished as a crime in any jurisdiction. Attempted suicide was also a crime at English common law. Only a few U.S. jurisdictions punish attempted suicide. Aiding suicide was a crime at common law equivalent to murder under the theory the theory that the aider was a party to the self-murder of another. In the U.S., approximately 30 states provide by statute or common law that aiding suicide is a substantive crime. Some treat it as murder or manslaughter. But most treat it as a separate offense, i.e., aiding suicide. The MPC and TPC each have aiding suicide statutes in Sec. 210.5 MPC and Sec. 22.08 TPC.]
I found some pretty interesting info on Dr. Jack Kevorkian who was doing 10-25 (Dr. Jack got out on parole in 2007 and died of natural causes in 2011.) for consensually injecting a terminally ill (Lou Gehrig's disease) person with muscle relaxant and potassium chloride that stopped the heart. (1- earlier case) [My roommate had a T-shirt from Bush2 days that said, "Dr. Jack for White House physician." Not nice.] By the way, there are usually about 30,000 suicides each year in the U.S., twice as many as murders. If you think about it, suicide is probably the most sincere form of self-criticism. See Video - Assisted Suicide in Switzerland; Video - Assisted Suicide in Oregon.
The professor put a poll on the web site home page to get out collective ideas about the concept of euthanasia. In contrast to the famous California case of Barber v. Superior Court where the surrogate's motives were good, take a look at the movie Fracture with Anthony Hopkins as a hubby who has evil motives in having his wife's plug pulled. The professor also passed out copies of the Texas durable power of attorney that lets a designated individual take over your affairs when you are otherwise unable to take care of them, the Texas medical directive to physicians and family or surrogates that authorizes withholding treatment in case of terminal and/or irreversible conditions, and finally a Texas medical power of attorney that lets you designate a health care agent to make life and death decisions for you. (As if a toned and buff specimen of youth like myself would really expect to ever have to use one of these things. Maybe it's just for informational purposes and to inspire us to think that one of the purposes of the law is to draw lines, so doctors won't be technically liable for murder when they decide to limit patient care of a terminal patient who wanted no heroic effort and to make the final exit of each "human being" from our spot on the planet clearer for purposes of the law of homicide from a legal and ethical standpoint.)
The prof strongly suggested that we read the Dressler UCL chapter on causation which has numerous hypothetical examples of situations where causation can be a problem. He said that Dressler spells out the traditional approaches to solution of these problems. The professor also posted some (seven) hypothetical causation problems on the web site under Silver Bullets I. [I am curious to know what happens when D1 and D2, who are each acting separately and not in any way as complicitors, each deliver a fatal blow to V at exactly the same time, and V dies immediately from the two simultaneous mutually fatal blows. How can either blow be the "but for" cause when the other fatal blow could have caused and did cause the result (death) to occur at exactly that time, i.e., neither blow, looked at individually, shortened the life of V? Does that mean that neither fatal blow is the factual and legal cause of V's death? I finally came up with my answers to the causation problems. They are in my notes for Assignment 15.]
Apparently, MPC Sec. 2.03 and TPC Sec. 6.04 give us all the code material there is on causation. The Texas law is about 1/8th of a page. The "but for" test along with escape clauses seems to be at the heart of each test. My question is: Suppose you get the result you intend or want or risk or try for, but the result happens in a way that you didn't expect? I'm thinking of what happens when D shoots V, who is taken to the hospital where a doctor treats V negligently and V dies in part from the doctor's negligence? What if the doctor is simply negligent or is grossly negligent in treating the gunshot wound? What if the doctor intentionally poisons V to death before V can die from the gunshot wound caused by D? (These unusual hypos get hairy, but this seems to be where causation gets tough.)
The case of People v. Garner, 781 P.2d 87 (Colo.1989)) on what Texas calls intoxication manslaughter illustrates the legal issue of the role that the intoxication will or will not be required to play in the death. Texas IMS, Section 49.08 TPC, seems to require that the death be caused by the intoxication (Madd Mothers has info by state.), rather than just requiring that the driver who kills be intoxicated as is the case in Colorado!
Note to myself re prenatal child abuse: What is a "child" for purposes of the child abuse crime? If a fetus is not protected by the criminal homicide statute, should a mother who takes cocaine during pregnancy be liable for child abuse, when her child is born with cocaine metabolites in its system? Is she causing cocaine to be delivered to the fetus/child? I was playing around with some of the sites on the class web site and found an article on the subject, also, this case where the mother was smoking crystal.
Questions to myself:
(1) On abortion and feticide: On the woman's privacy right to chose to abort a fetus, I'm trying to figure out if the father of the fetus has any say. It looks like the father doesn't have any power. Women get pregnant, men don't. Women can have abortions, men can't. Women have access to more methods of birth control than men. Fathers cannot force women to have abortions, and it looks like they don't have legal power to keep it from happening. Does this tie into the overall issue of whether states should criminalize feticide that takes place without consent of the mother, as California does? Here's one of my problems with feticide: In a feticide or embryocide jurisdiction, suppose a pregnant woman is in a coma and a doctor can only save the mother by aborting the fetus. Is the doctor liable for feticide/embryocide if s/he does so without permission of the mother? If the mother's life and the fetus' life are equivalent under the new Texas law, the necessity choice of evils defense doesn't appear to give the doctor any protection from a feticide/embryocide charge, unless the law makes it clear that abortion procedures of this sort are not covered by the feticide/embryocide law. It looks like +- 27 states, including Texas as of 9-1-03 in one way or another make killing an unborn child either feticide or homicide, the mother's privacy right to choose to end the pregnancy being a constitutionally guaranteed exception to all such feticide statutes. One of the prof's polls deals with the feticide issue.
(2) On causation, our study group also had a problem with the "eggshell skull" type of problem where A taps B on the head with a closed-fist to get B's attention, but B dies from a fractured skull because of a pre-existing weakness (eggshell-thin skull) that A is unaware of. Obviously, A's tap on the skull is a factual cause of B's death. But is the tap or the thin skull the legal cause? To me, the eggshell skull looks like an independent intervening cause that would have to be foreseeable by A under the typical approach. In Texas, the eggshell skull might be a concurrent cause that was clearly sufficient to cause the death; whereas, the tap was clearly insufficient. The question of mens rea seems easier. Since A was unaware of the eggshell skull, there is no intentional or knowing killing. I don't see recklessness in the sense of a conscious disregard of a substantial and unjustifiable risk. Nor do I see strong evidence of gross (criminal negligence) negligence, though that is more arguable. So, criminal homicide, at least in the form of murder and reckless manslaughter don't seem present. Though criminal negligence, e.g., criminally negligent homicide under the TPC and MPC might support a criminally negligent homicide charge and under the common law, perhaps, an involuntary manslaughter charge.
It's clear from the readings that some jurisdictions say life begins for purposes of criminal homicide when the fetus can live apart from its mother. It just occurred to me, by this definition, a bunch of my homies are legally dead.
And never forget, you're unique, just like everyone else!
If A commits a robbery and during the commission of the robbery someone is accidentally killed as a result of the robbery, what happens? Is A liable for c/l f/m. It seems so. In Texas, it would depend on what A did, i.e., did he do something that was clearly dangerous to human life and did it cause the death? Under the MPC version of f/m, it looks like you would get a presumption (rebuttable) of the existence of the mens rea of "extreme indifference to the value of human life." I don't think you could get capital murder in Texas out of this scenario without further facts, because it's not an intent to kill murder in the commission of robbery. I know you can't get into the capital murder statute through Texas f/m law. also know that in Texas, the jury doesn't have to agree on the particular felony that the defendant committed. See White v. State, 208 S.W.3d 467 (Tex. Crim. App 2006). I need to check Dressler to be clear on these two theories (agency rule and proximate cause rule) of liability of felons for killings done by people other than themselves. It looks like the MPC f/m rule is like the c/l in making all the co-felons liable. It's like a little mini-rule of complicity that applies only under the f/m to make one co-felon vicariously liable for the man-killing acts of another co-felon. The TPC f/m rule in Sec. 19.02(b)(3) talks about the act of the felon and doesn't mention other felons. Maybe Texas would require you to make the actor felon liable for f/m before you could try to make co-felons liable through the Texas complicity statute in Chapter 7 TPC.
Note: Two questions came up in our study group. (1) First, my study group talked about what would happen in nighttime drive-by shootings into places where people may be, e.g., houses, apartments and how the f/m might be implicated. For example, what happens when A fires a random shot into a house that appears to be abandoned vis a vis a shot into a house where people seem to be residing vis a vis a shot at a person in the house? If someone inside the building is hit by the random shot, how do you prove an intentional, purposeful, or knowing killing? We couldn't see how. Would it be depraved heart or extreme indifference to the value of human life? In a jurisdiction like Texas that doesn't recognize "depraved heart," could it be felony-murder if shooting into a house was a felony? Look at the Texas crime of "Deadly Conduct'" in Section 22.05 TPC. Another problem we came up with: What if D tries to rape a jogger, V, at knife point, but V pulls away and runs into the street where V is hit and killed by oncoming traffic. Is D guilty of murder of V? How about felony murder? Is there sufficient causation? Is this one of those situations where the traffic was an intervening independent cause that was foreseeable or where it is a concurrent cause under Section 6.04 (a) TPC? What if the attacker had no knife and intended simply to slap B around, i.e. assault of B. Would the assault merge with the homicide and prevent use of f/m under the c/l, TPC, and/or MPC? See Lawson v. State, 64 S.W.3d 396 (Tex. Crim. App. 2001), (2) Second, we wondered whether a Texas prosecutor could use the f/m rule to ramp up a death that was caused by a drunk driver who had prior DWI convictions. If the driver who caused the death would be liable for strict-liability-no-mens-rea felony DWI because of the priors, see Section 49.09 TPC, may the prosecution use that felony offense as the underlying felony in the felony murder rule of Section 19.02(b)(3) TPC? Some people felt that the special statute on intoxication manslaughter would control over the general f/m statute. Others believed that the f/m statute would control, particularly since felony DWI doesn't appear to be a lesser included offense of manslaughter. Lo and behold, the Texas Court of Criminal Appeals decided the issue in Lomax v. State, 233 S.W.3d 302 (Tex. Crim. App. 2007). In a 6-2 decision, the court upheld a f/m conviction and 55 year sentence of a defendant whose drunken driving caused the death of a five-year old; the underlying felony was felony DWI. The case is chock-full of many of the f/m concepts we've studied. Everyone needs to take a look at it! It helped me understand the Texas f/m rule.
Causation seems complicated, but apparently in the run-of-the-mill criminal cases it doesn't present much of a problem. However, the rumor is that it can be an issue on the bar and on law school exams - almost always in the context of homicide, i.e., who is the factual and legal cause of death. The instructor. tells us to be sure to read UCL5th, Chapter 14, which has a whole set of possible situations with answers as to whom is the factual/legal cause of the result. One nice thing about causation - it's never an issue in conduct-defined offenses, the crimes that require proof of conduct, as all crimes do, but don't require proof of a result caused by the conduct.
Example: A and B, acting independently, shoot V at the same time; each wound is mortal; V dies more quickly from the combined mortal wounds. Who is responsible for causing the death under a "but for" test? I think the answer would be that each is responsible for causing the death under a "but for" test because V dies more quickly from the combined wounds than V would have died from each wound singly; "but for" each wound, V would not have died when he did. It seems like hastening the victim's death is the key. So, the "but for" test asks: "but for" the defendant's acts, would the death have occurred when it did. Be sure to study the TPC rule of causation (It's only about 1/8th of a page long, which is a lot different than the concept of causation that we studied in torts!) in Sec. 6.04 and the MPC causation rule in Sec. 2.03 that also explains when conduct is a cause of a result.
Note: Our study group came up with these two hypos: The first one: What if D assaults V and gives V a black eye. V goes to the hospital and is successfully treated and released. On the way home V is hit and killed by a bus. Alternatively, the doctor who treats V at the hospital acts with gross negligence or recklessness in injecting air into V's vein, and V dies from the consequent air embolism. Under any of these circumstances, is D the legal cause of V's death? Our group decided that the bus death was an independent intervening cause that was not foreseeable by D. Also, it seems like the intervening medical gross negligence or recklessness of the doctor broke the chain of legal causation with regard to the death The second one is this: What happens under Section 6.04(a) TPC if D1 intentionally stabs V with intent to kill but a non-mortal wound, i.e., one that would not by itself cause V's death, and at the same time D2, acting independently of D1, and with intent to kill also inflicts a non-mortal wound on V. Suppose V dies from the combination of the two wounds, neither of which is mortal. Wouldn't each of them be liable under Section 6.04(a) for murder, assuming there aren't any defenses? The death of V would not have occurred but for the conduct of D1 (D2) operating concurrently with the cause of D2 (D1), and the concurrent cause of D2 (D1) was clearly insufficient to produce the result, ie. V's death. Does that make sense under the TPC?
Note: A study indicates that nearly 100,000 deaths a years are caused by medical errors. In a study published in 1991, 76% of doctors surveyed said that they had not fully disclosed a serious error to one of their patients. A separate survey in 2002 found that only 30% of patients affected by a medical error had been informed of the problem by the health-care professional responsible for the mistake.
Feeling a little too pudibond. After all, la vie est un cadeau.
UNIT SEVEN - Felony Murder - Causation Theory
Let's consider the felony murder rule (1) and a bit of causation (1). It looks like the c/l, TPC, and MPC all have some version of the felony murder rule. Apparently, the history of the f/m rule has been centered around efforts by the jurisdictions that have it to limit it in one way or another. The prof gave us a Texas case, Johnson v. State, 4 S.W.3d 254 (Tex. Crim App. 1999) that contains the Texas merger doctrine. Johnson held that a f/m conviction was properly predicated on the felony of injury to a child offense even though the act of hitting the child with a deadly weapon was the same act relied upon to prove the defendant's commission of an act clearly dangerous to human life under the FM provision of Section 19.02(b)(3) TPC. The TPC f/m rule applies to any felony, except manslaughter and any lesser included offense of it, but requires the accused to commit an act that is clearly dangerous to human life that results in death. So, you can have a felony that is not inherently dangerous to life and have a scenario that involves the accused fleeing from it and committing and act clearly dangerous to human life that kills someone and, thus, have a f/m conviction in Texas. Also, look at Lawson v. State, 64 S.W.3d 396 (Tex. Crim. App. 2001) which indicates that an intentional or knowing aggravated assault is not a lesser included offense of manslaughter, an offense in which the mens rea is recklessness; Lomax v. State, 233 SW 3d 302 (Tex. Crim. App. 2007),
UNIT FIVE - Murder - Voluntary (Provocation) Manslaughter - First Degree Murder (Premeditation) (See Silver Bullets I for Criminal Homicide):
Voila. Finally, we get to sink our teeth into a crime, or more like a set of crimes. We start discussing the different types of criminal homicides (1) (The teacher claims that 10% of us will spell it "homocide" on the exam.) in the c/l, TPC, and MPC. He gave us a sheet where he had copied the MPC, TPC, and common law definitions of criminal homicide on one side of a legal sheet. Shouldn't be too hard to figure that out. I think I'll do the same with the other crimes and defenses we study. The side-by-side comparison makes it easier to grasp differences in the three approaches. It may help out in setting up an outline and studying for the final. [Note: Murder doesn't seem to be the subject of renewed popularity in the U.S.; there were 16,929 in 2007.]
It looks like the common law recognized murder (1) (a killing with malice aforethought), voluntary manslaughter (sort of like a mitigated murder where the killer was under the influence of sudden passion arising from adequate cause that made him or her temporarily incapable of cool reflection and still guilty, but just not quite as guilty as a cold-blooded killer), and the offense of involuntary manslaughter which seems to be a killing based on a mens rea of recklessness or criminal negligence. (I'm not sure which or whether both sufficed.)
Chapter 210 MPC seems to define murder (210.2), manslaughter (210.3), and negligent homicide (210.4), along with assisted suicide (210.5). Chapter 19 TPC defines capital murder, murder, manslaughter, intoxication manslaughter, and criminally negligent homicide. All but intoxication manslaughter (Section 49.08 TPC) are in Chapter 19 TPC. It looks like we spend two full weeks talking about criminal homicide. If the exam is fair, I'm guessing there is going to be at least one dead or seriously injured person on any essay portions. Try to read as much as I can of Dressler material on criminal homicide this weekend. (I'm signed up for the Powwow e-discussion group; I'd like to throw out a question about euthanasia (spelling) and get some views, but I guess I won't take the risk of no one answering. It seems like we've got a pretty bright group, so maybe things will loosen up. At least it's a good way of finding out what the designated case expert said in his/her case brief of each case in our casebook.)
Texas seems to handle the sudden passion thing as a factor in sentencing, after a person has been convicted of murder. The MPC talks about extreme emotional disturbance (EED). The cases we read went all over the map about what could be legally considered as sudden passion, The old strict c/l position on a confession of adultery was that, as a matter of law, it did not constitute adequate provocation. Today many states take a more liberal stance and let the jury sort out whether the provocation was adequate and whether the defendant was in the grip sudden passion arising from the adequate provocation. I see a great example of this approach in Section 19.02 (a) (1) & (2) and (d) TPC. Wasn't it George Bernard Shaw who said, "When we want to read of the deeds that are done for love, whither do we turn? To the murder column." And "In the heat of passion, two things can happen. The second is murder." from The Postman Rings Twice. I read that England changed from the strict old c/l rule in 1957 to allow a confession of adultery to raise the sudden passion issue. Texas seems to take a liberal approach, but the MPC really gives the defendant a shot at manslaughter if he's in the grip of EED. It doesn't even have a cooling time provision. (No comprendo friendo why these people are wasting their energy killing someone that's chipping on them. I'd walk, and be glad. At least, I think I would.) Anger (and fear also) with its wild rush of animal adrenaline does strange stuff to some folks. Not too long ago, Clara Harris (1), (2), a Houston female dentist, ran over her dentist husband a couple of times with her Mercedes when she caught him coming out of no-tell hotel with his receptionist. She was convicted of murder by Mercedes but the jury found that the killing was done while she was in the grip of sudden passion and sentenced her to the maximum for a 2nd degree felony, 20 years ) When I am thinking about heat of passion (anger, fear, etc.) as a mitigating factor, I am thinking about ordinary people who are responding to overwhelming circumstances, as opposed to weird or crazy (insane) people responding to ordinary circumstances. I wonder, however, if the policy of allowing provocation to mitigate responsibility is totally sound. Isn't self-control like a psychological muscle that needs to be exercised? Of course, muscles can become exhausted and people can lose it in some situation. (Do you remember the homicide described in Browning's Porhyrias' Lover?)
Study the third party provocation rule in Texas vis a vis the C/L and MPC. It looks like it could be a ripe area for testing. When A provoked by B kills C in Texas, under Section 19.02 (a) (2), it looks like there won't be any chance for A to claim the killing was in sudden passion arising from adequate cause unless B (the provocateur) was "acting with" C (the person killed by A in the heat of passion). What does "acting with" mean. The professor said he doesn't know precisely what the "acting with" phrase would encompass insofar as linkage between B and C. At any rate, the Texas lawmakers seem to put some blame on the provocateur, allowing for lesser punishment if s/he is the victim. There is no sudden passion defense in Texas if an innocent bystander is the recipient of the defendant's emotional homicidal outburst of violence. It appears that the MPC focuses on the issue of whether the defendant killer acts out as a result of extreme emotional disturbance, irrespective of whether the victim is a provocateur or an innocent bystander.
Degrees of murder, under the old PA. plan, seem complicated, but the idea of having two levels of murder is kind of like murder and capital murder in Texas and murder and the capital crime of murder under the MPC. Using deliberation/premeditation to make punishment stiffer seems to be a sore spot. The thing that the casebook and the professor seemed to harp on was whether deliberation/premeditation should even be used to elevate an ordinary murder to a 1st degree murder. Even if the legislature or court can define the terms, they don't seem to take you where you would want to go. It looks like all mercy killing would be first degree premeditated killings, like Gilbert v. State, where the kindly old geezer, Roswell Gilbert, in Florida shot (twice in the head after reloading) and killed his wife, Emily, and was convicted of first-degree murder with a twenty-five year minimum. That doesn't make a lot of sense. I suppose that's the point - two-word deliberation/premeditation doesn't distinguish between the hired assassin and the mercy killer. Maybe more specific aggravators like "lying in wait" or even the MPC "brutality" factor in Sec. 210.5(3)(h) MPC would be better alternatives to cover some of what would be called "cold-blooded" premeditated killings. The teacher said the c/l doesn't have degrees of murder, nor in the very strictest sense does the MPC. But since the MPC and TPC do have capital murder and murder provisions, they are akin to states like California that have express degrees of murder, e.g., first and second degree murders. How you define capital or first degree murder seems to be the issue. The MPC, in part, and TPC differentiate murder and capital murder by the presence of aggravating factors (Section 210.6 MPC and Section 19.03 TPC) that will kick a murder up to capital murder. Typically, a degrees of murder statute reads like this one: California's Penal Code Section 189. Murder; Degrees All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking or any act punishable under Section 206, 286, 288, 288a or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree; and all other kinds of murders are of the second degree ... To prove the killing was "deliberate and premeditated," it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act. (Emphasis mine)
For people like me who get a boot out of reading about famous crimes and criminals, the prof told us about a great site on the web with a fantastic collection of crime stories. Naturally, most of 'em are about murder. He wasn't kidding about the site being interesting: Famous Trials. I looked at it and didn't emerge for an hour. It makes sense that we, as members of one of the most historically violent and well-armed societies on the planet, would have more than a casual interest in crime and criminals.
Note: My study group was talking about mens rea, causation, and "intent to kill" murder. Our question was what happens when A intends to kill B at B's house, and while driving there accidentally and without any negligence runs over B when B darts out into traffic from behind a car. To us, it seemed like A was definitely the "but for" factual and legal cause of B's death, but, at the time of the act of killing, A did not have the necessary intent to kill that actuated the conduct that caused B's death. So, we concluded that there would not be a concurrence of act (conduct) and mens rea (intent to kill) and, thus, there would be no intent to kill murder.
Viva la lex non scripta! (the common law) And in the words of my patron saint the immortal George Carlin, "God bless the homicidal maniacs. They make life worthwhile!"
UNIT FOUR - CAPITAL (Please, not "Capitol") PUNISHMENT (1) (2 -Wiki) (3 - Pro-death) (4 - ACLU) : Captain's Log: Unit Four - Today is the day we consider capital punishment (1) We took a poll at the web site on who's for and against it, and if you are for the death penalty, whether it should be extended to sexual assaults on children. About 80% were generally for the death penalty as a possible punishment. The rest were against. I read there are about 3700 people around the country waiting to get poisoned or electrocuted in the death chamber. Of the 35 states with the death penalty, 35 use poison (lethal injection - started by Oklahoma in 1977) with Nebraska, until February of 2008 when their state supreme court struck it down as cruel and unusual under the state constitution, still frying folks in Old Sparky. These are the fifteen states without a death penalty: Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, New Jersey, New Mexico, New York, Rhode Island, Vermont, West Virginia, and Wisconsin, plus the District of Columbia. In the past 25 years, the number of Death Row inhabitants has increased seven fold. After Gregg v. Georgia (1) reinstated the death penalty, executions jumped up to 98 in 1999 and then tapered off, e.g., 53 in 2006. Our Texas penal authorities are so proud of being number one in executions that they keep a running tally of death row doings. I also was a bit shocked myself by this article explaining how my Texas county, Harris - the death penalty capitol of the USA, has a direct pipeline to death row. Some prosecutors around here count coup based on the number of death penalty convictions they get. Unfortunately, our Texas method of appointing incompetent lawyers to represent accused capital murderers is a festering carbuncle on the rump of the criminal justice system. See State Bar of Texas - Guidelines and Standards for Texas Capital Counsel (2006). My main hang-ups about the death penalty are: (1) Is it necessary? (2) Is it fairly applied across the population? (3) How many innocent people are executed? I could drop a vicious killer in prison for life, but am I competent and morally empowered to premeditatedly and intentionally order someone ritually executed. Most of the people I know who are proponents of capital punishment are the very ones who are least likely to be victims of a capital offender and who know least about the subject, e.g., who gets it, for what, how much it costs, etc. They complain about the inefficiency of the post office, the IRS, and the traffic cops and the screwball politicians that are crookeder than a dog's hind leg (or the Snake River). Yet, they implicitly trust the government to get it 100% right when the stakes are death - the undiscovered country from whose borne no one returns. Of course, some of these folks also believe that we are winning the "war against drugs and still should be hanging witches!" (17th century New England could be tough on a girl!) (French guillotine) (electric chair (1) (2)) (firing squad)
DNA testing (see Expert) has resulted in quite a few exonerated people (mainly convicted rapists) being released from prison. I'm not totally convinced that this talk about executing innocent people (Northwestern Law School is an unsung hero.) is true. There seems to be some credence to it. (1) If it does happen, once is too many. There were a bunch of residents of Illinois' death row who were proven innocent in the early 2000's. I know that Illinois has a better system for providing counsel than Texas does. So it kinda figures that we may have one or more innocents on our death row. Sending someone in to be ritually killed for a crime s/he did not commit doesn't contribute much to the moral structure of our society. I would really be p.o. if they executed me, and I didn't do the crime. I guess that's what bothers me most about the death penalty. I hate violent criminals, but I don't think I want to put my complete trust in the folks with the badges and guns. I know some cops and prosecutors. Most are good people, but like any group there's always some with character defects. [Hey, that's just my view. I may be wrong. So shoot me! I went to high school with some guys who became cops, and some of those guys broke more laws when they were teenagers than Billy the Kid. Of course, I merely watched these guys do their thing; remember, mere presence doesn't make me a party to the party.]
Another thing, they say giving a guy (and an occasional female) the needle is from three to ten times more expensive ($) than just giving him/her life or life without parole. The professor said that in Texas, as of September 2005, people who are given life for capital murder committed after the effective date of the change get life without parole; under the previous law the capital murder lifer was required to spend 40 calendar years in prison before s/he was eligible to be considered for parole. I like the idea that life in Texas for capital murder now really means life without parole, i.e., the convict never is eligible for parole. I think some juries might choose life without parole over giving a person convicted of capital murder the needle. Jurors at the punishment stage are presently told that life for capital murder means life without possibility of parole.
I need to understand how the Texas capital murder law works. According to Section 19.03 TPC (the definition of capital murder), you can't enter the capital murder provision unless you first have either an intentional or knowing killing under Sec. 19.02. Once you are into the capital murder provision, in order to be convicted of capital murder the accused must be proven beyond a reasonable doubt to have engaged in one or more of the specific aggravating factual modes of conduct specified there. The jury doesn't have to agree on the particular aggravating circumstance, only that each of them must agree on one. See Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991). Notice that those various modes of conduct are factual elements of the crime of capital murder that do not involve personal characteristics of the accused. Also, if you apply the complicity law of Section 7.02 TPC, the aider and abettor to a capital crime may also be convicted of capital murder just as the actual doer, e.g., "the shooter or sticker." In Texas, the issue of whether the accused is guilty of capital murder is taken up at the guilt phase of the bifurcated trial. Whether the punishment will be death is an issue only taken up at the punishment hearing, the second phase of the bifurcated trial. It's at that punishment hearing that the jury will hear evidence about personal characteristics of the defendant under the provisions of Art. 37.071 CCP. See Punishment. The MPC even has a model (It was put forth 40 years ago.) death penalty provision - Sec. 210.6 MPC - for those states that favor capital punishment. (The folks who wrote the MPC didn't favor capital punishment, but they recognized that many people in the population did.) In connection with the Arave v. Creech case, I note that the MPC death penalty has an aggravating circumstance that is based on cruelty of the killing, e.g., skinning the victim alive. Texas doesn't seem to have an analogous cruelty or brutality aggravating circumstance provision. (Hey, I'm beginning to talk like a lawyer!) As a matter of policy, I wonder if Texas should have such a provision. What would the crime be in Texas if the killer skinned the victim alive? If we are going to provide death as a possibility for the mass (spree or serial) murderer, why not the vicious killer? [By the way I noticed that the FBI defines multiple murders in three categories: a mass murderer is one who murders "four or more victims at one location"; a spree murderer "kills at two or more locations with no cooling-off periods between murders."; a serial murderer commits "two or more killings as separate events ... over a period of time ranging from hours to years."] Also, note that the TPC list of factual aggravating capital murder circumstances expanded in September 2005 to include intentionally or knowingly murdering any judge in retaliation for his service or status as a judge, See Sec. 19.03 (9) TPC.
Here's what I see as problems with the death penalty, aside from the definition of which crimes qualify. First, who decides which death penalty eligible cases will be tried as capital. It looks like DA's have a lot of discretion. (Note: Harris County leads the nation in seeking death.) Second, it troubles me to kick everyone who doesn't believe in the death penalty and who wouldn't assess it off of juries. You wind up with a jury of authoritarian ("get the rope") people who don't have a problem killing other people. Third, can I trust the government, e.g. police, prosecutors, etc., not to fudge, e.g., suppress or fabricate evidence, when they think they have the right person in a real bad murder. [Note: I'm saying this because of the large number of death row prisoners that have in recent years been found innocent; to me, the state should not kill a person unless we are real close to 100% sure s/he is guilty of the capital crime.]
What about executing minors who can't vote, drink beer, or drive? Until recently, twenty-two states allowed the execution of juvenile offenders. Texas killed the most. Since the death penalty was reinstituted in 1973, Texas executed 13 of the 21 juveniles who have been whacked by the states. The U.S.A. was among the tiny community of nations permitting the execution of juvenile offenders. Until 2005, the USSC had refused to prohibit the execution of juveniles. See In re Stanford, 537 U.S. 1097 (2002). However, in 2005, in the case of Roper v. Simmons, 543 U.S. 551 (2005), the USSC held that it is unconstitutional cruel and unusual punishment under the Eighth Amendment to put anyone to death for a crime committed while younger than 18. Regarding retarded people who commit death penalty crimes, Atkins v. Virginia, 536 U.S. 304 (2002), had held that it violates the cruel and unusual punishment provision of the Eighth Amendment to execute a criminal who was mentally retarded at the time of the crime. Retardation means significantly subaverage intellectual functioning accompanied by significant limitations in adaptive functioning, originating before the age of 18. Atkins had an IQ of 59. At the time of Atkins, about eighteen states already outlawed execution of the mentally retarded. The Texas approach to Atkins is explained in Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004). I'm mulling over the idea of putting curbs on the imposition of the death penalty. Pro-death arguments. Anti-capital punishment arguments, (Jeremy Irons). At a lower level of visibility are the ineffective assistance of counsel cases; in three recent cases, the USSC overturned death penalty verdicts on the ground that trial counsel provided ineffective assistance. See Rompilla v. Beard, 545 U.S. 374 (2004); Wiggins v. Smith, 539 U.S. 510 (2003); Williams v. Taylor, 529 U.S. 362 (2000). The ABA has never taken a position on the death penalty per se, but it did vote to support a moratorium on executions until jurisdictions ensure that capital cases are administered fairly, impartially and in accord with due process. As to the lethal injection method, typically with a cocktail of sodium pentothal, pancuronium bromide, and potassium chloride, the USSC considered this method in light of the cruel and unusual punishment prohibition of the Eighth Amendment and upheld the Kentucky procedure in Baze v. Rees, 553 U.S. 35 (2008). [Note: Re capital punishment, those 16th century English judges liked to stretch things out, sentencing some defendants to be hanged until "half-dead" and then disemboweled and their innards burned before their eyes. It's nicely recreated in Elizabeth I with Helen Mirren, where it appears the condemned guys are lying on a picnic table watching another guy barbeque sausage, until you see it's their entrails that are being cooked. When they went with the axe, judges would sometimes add a note of drama, like having the head boiled and impaled on a pole by London Bridge. That might not have caused any medieval (I know it was after the Middle Ages.) traffic jams, but it would certainly be a morning traffic head-turner (no pun intended) today.]
Should rapists of children be subject to the death penalty? The USSC decided a number of years ago in Coker v. Georgia, 433 U.S. 584 (1977) that it constituted cruel and unusual punishment to inflict the death penalty for rape of an adult; if you read Coker, be aware that it involved egregious facts. The question remained whether it might be imposed on a defendant convicted of rape of a child. Since Coker, five states, Louisiana, Montana, Oklahoma, Texas (Texas calls it sexual assault of a child. See Bullets V - Sex Crimes), and South Carolina, enacted child rape statutes. The USSC decided in Kennedy v. Louisiana, 554 U.S.__ (2008) that the death penalty for rape of a child, a crime against the individual, violates the Eighth Amendment ban on cruel and unusual punishment when the crime did not result and was not intended to result in the child's death. The decision in Kennedy does not impact the availability of death as a punishment for crimes against the government, e.g., treason or espionage.
My to do list : Look at Art. 37.071 Tex.CCP for the special Texas death penalty procedure that contains the special issues that must be answered at the punishment phase of the bifurcated trial in order for a death sentence to be imposed. Notice that these special issues don't focus on factual elements that make the murder a capital murder under Section 19.03 TPC, but, instead, center on personal characteristics of the accused and the crime that make the defendant a good candidate for death. I noted that Texas and one other state (Oregon) are the only jurisdictions that have a crucial "future dangerousness" special issue; this issue has been widely criticized as voodoo forecasting, but has been upheld in Barefoot v. Estelle, 463 U.S. 880 (1983); six other jurisdictions permit evidence of future dangerousness, and 29 eschew it. Notice that the procedure for determining life or death in cases where the accused has been convicted of capital murder differ from the regular non-capital sentencing and bifurcated trial procedure that is described in Art. 37.07 Tex.C.C.P. I noticed that in June, 2002, the USSC held that judges cannot be allowed to make the life-death decision in capital murder cases. See Ring v. Arizona, 536 U.S. 584 (2002) striking down, under the Sixth Amendment right to trial by jury, a judge-only capital sentencing procedure in Arizona where jurors had no role whatsoever in the life/death decision. Florida has a somewhat similar statute, except that the jury is allowed to recommend a death sentence which the trial judge can accept or override. In Texas, the death penalty is always in the hands of the jury. Indeed, one of the few rights an accused in Texas cannot waive is the right to a jury in a capital case where the prosecution seeks the death penalty. See Art. 1.13 CCP.
I think it's time se mettre dans les toiles.
UNIT THREE - Void for Vagueness - The Principle of Legality - Strict Construction - Ambiguity/ The Rule of Lenity - Moral Codes (Abortion/ Homosexuality) - Sentencing Discretion :
Salut. The general subject of this unit is how far the government can go in criminalizing behavior before it violates some individual right. As I understand it, most constitutional due process revolves around criminal procedural rights found in the Bill of Rights like the right to counsel, the privilege against self incrimination, freedom from unreasonable search, etc., and translates itself into issues relating to administration of the criminal laws, e.g., confessions, search, lineups, etc., rather than to the process of defining crime. We deal with those subjects in the 2L constitutional criminal procedure course. There is no constitutional law of crimes and defenses. However, there are some significant constitutional constraints on lawmakers. This unit focuses on some of those constraints. The principle of legality and punishment. It looks like the principle of legality (fair notice) is promoted by making all crimes statutory (written in a code or law passed by the legislature), rather than letting judges define crimes and defenses on a piecemeal basis. Fair warning (prior notice) appears to be required by due process (5th and 14th amendments) and TPC Sec. 1.02(2) and MPC Sec. 1.02(1)(d). There are some US Supreme Court cases that talk about a constitutional doctrine called the fair notice doctrine, i.e., that laws should be written so as to give those governed by them fair notice. See McBoyle v. United States, 283 U.S. 25 (1931); United States v. Lanier, 520 U.S. 259 (1997). Criminal laws are not allowed to be applied retroactively ex post facto (1), (2), (3), (4) to make a criminal out of a person who did something that was not against the law when s/he did it, even though it is subsequently outlawed. See Art.1, Sections 9 & 10 of the U.S. Constitution and Section 1.01(2)(4) MPC. The First Amendment free speech right was used by the USSC recently to strike down the "stolen valor" act in United States v. Alvarez, __U.S. __ (2012).
One aspect of fair notice is the concept that a law may be void for vagueness, a concept based on the Fifth Amendment and Fourteenth Amendment Due Process Clauses. There are limits to how far a law-making body can go in defining a crime. One of them is that the definition of a crime can't be so vague that a person of ordinary understanding couldn't understand what s/he is supposed not to do or do, e.g., a statute that made it a crime to "engage in any conduct that obstructed the government." The Jacksonville, Florida, vagrancy statute in Papachristou v. Jacksonville, 405 U.S.156 (1972) is a good real life example. See Section 1.02(3) MPC for the MPC "loitering" crime. Does it pass the void for vagueness smell test? Sometimes a statute uses broad words or phrases that call for the actor to estimate the meaning the jury may subsequently place upon them. Such statutes are not necessarily void for vagueness. See Nash v. United States, 229 U.S. 373 (1913) and International Harvester Co. v. Kentucky, 234 U.S. 216 (1914)
Some of the cases we are reading are about judicial interpretations of statutes enacted by legislatures. The judges appear to have some power to interpret the meaning of the statutes. Look up the meaning of "the rule of lenity" (1), (2), (3), (4). I think it means the rule of statutory construction where the court construes an ambiguous statute strictly against the state. It looks like Texas (Section 1.05 TPC) and the MPC (Section 1.02(3)) don't recognize the rule of lenity. The courts also have power to strike a statute down if it violates the Bill of Rights or the U.S. Constitution, e.g., ex post facto laws. This void for vagueness doctrine comes in under the Fifth and Fourteenth Amendment Due Process Clauses. So would a case about the right of free speech under the First Amendment when, for example, a disorderly conduct statute penalizes speech that doesn't amount to "fighting words" likely to incite violence. Take a peek at the Texas disorderly conduct statute, Section 42,01 TPC. Paragraph (a) (1) makes it an offense to "use abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace." [The italicized part sounds like fighting words. I read a quote one time about fighting words; it said. "Violence of language leads to violence of action. Angry men seldom fight if their tongues do not lead the fray."] And although it's not necessary that anyone other than the complainant be around, the criminal speech does have to occur in a public place, e.g., a beer joint, a street corner, vis a vis a private place, e.g., a home. The teacher also asked if Section 42.01 (4), TPC re "abusing" a person in a public place in an "obviously offensive way" was vague. One of my colleagues asked after class whether there might be a sliding scale of what was "obviously offensive," in the sense that what a group of half-soused 24-year-old guys say and do to each other in a sports bar, e.g., "Your mother was molested by Bigfoot, and you're their mutant offspring," might have a different "abusive" effect if they said something similar to a nun sitting next to them on a subway car, e.g., "Your mother and father weren't by any chance brother and sister were they, sister?" Note also: Section 42.04 TPC provides a free speech defense to a couple of provisions in Chapter 42.
Note: Constitutional rights bar lawmakers from criminalizing certain behavior. For example, in 2008, the USSC in District of Columbia v. Heller, 554 U.S. 570 (2008) held for the first time that the 2nd Amendment right to keep and bear arms provides an individual with the right to bear arms in the home for self-defense, as opposed to being a right only applicable to the state militia. The decision struck down a 1976 Washington, D.C., law that banned handguns and required that long-barrel firearms kept at home have a trigger lock or be dismantled. Since the case occurred in D.C., presently the holding applies only in federal court and not in the states.
Note: In 2003, the Texas Legislature joined the trend in most states by enacting an anti-spam law, codified as Chapter 46 of the Texas Business and Commerce Code; among other things, this law prohibits intentional falsification of the sender's e-mail address or subject line (spoofing) and contains anti-spam provisions for mandatory, cost-free, opt outs from unsolicited commercial e-mail; perhaps because of First Amendment free speech concerns the remedies are primarily civil and reactive (after the fact) rather than proactive, however, there is a criminal provision (Class B misdemeanor) for sending obscene material which is intentionally mislabeled. All of us are annoyed by spam, but it will be interesting to see how the enforcement of the anti-spam law plays out against the constitutional right to free speech. Is spam like telephone harassment, where the issue is using a communication device to annoy or is it like sending an ad by letter?
Note: Here we discuss further limits on the government's right to criminalize certain conduct within the zone of privacy. About the criminal law and what some view as vice/immorality - the constitutionally guaranteed right to privacy is another barrier to the government's efforts to criminalize human behavior. The USSC made this clear in the Lawrence v. Texas, 539 U.S. 558 (2003) when it struck down the Texas homosexual conduct law as a violation of the Due Process Clause (14th Amendment). The USSC seems to say that consenting adults of both sexes, in any combination, have the liberty, freedom, and constitutional right to consensually sodomize one another in the privacy of the home. How about the right to play with sex toys? The Fifth Circuit in a case out of Austin, Texas, Reliable Consultants, Inc. v. Earle, 538 F.3d 355 (5th Cir. 2008) (1) held that the Texas statute prohibiting distribution of "obscene devices" violated the right to sexual privacy. But see Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007) taking the opposite position. [Bushrod's aside: Have you noticed that the government is not too morally concerned about supposed vice/immorality in situations where it can get its cut of the profits. Gambling is legal in most states. The poorest people line up and spend hard earned dollars to buy state lottery tickets and play video poker. In both situations, the odds make winning a virtual impossibility. Racetracks (horses & dogs) with pari-mutuel gambling are found in many cities. In rural Nevada, there are 28 legal bordellos (I counted 'em on a recent vacation.) where women of mercenary virtue and their pimps ply their trade and pay taxes on the take from men who enjoy the pleasures of financially procured female companionship. (Note: Prostitution is illegal in Las Vegas, Reno, and Carson City.) Tobacco and booze kill hundreds of thousands yearly. Yet, with the imprimatur of the government, smokes, booze, and, in many states, casinos are freely available, provided that all state and federal taxes are paid on the products or services. Indeed, some of the most profitable and stable common stocks are those of the tobacco, alcoholic spirits, and gaming industries. Pot, on the other hand, is a weed that would grow in anyone's flower pot or windowsill; if it was legal to grow your own weed, think of the huge losses in government tax revenue from regulated vice as people abandoned booze, cigarettes, and prescription anti-anxiety/depression pills and started to grow their own little plot of artificial paradise. Most casinos would probably give customers a choice of free drink or a free joint. What do you think?]
PUNISHMENT - [As a prelude to this discussion, I have been doing some thinking about the causes of crime. I also remember a quote from my under grad French class at OCHFD (Oklahoma College of Horseshoeing and Floral Design), Presque tous les desirs de pauvre sont punis de prison - which means roughly, "Nearly all desires of the poor are punished by prison."] We must have a lot of poor folks in the USA because more than 1 out of 100 of us adults is in jail or prison, about 2.3 million in 2008, far ahead of #2 China with 1.5m and #3 Russia with 890,000. Over 300,000 are aliens who are eligible for deportation after they finish doing their time. According to a 2006 DOJ report, over 2.38 million convicts were doing time in federal prisons (1 - 53 pages of info) and state prisons and jails in the U.S. (1) for assorted felonies (1) (prison time) and misdemeanors (1) (jail time); 112,498 were women, and 905,600 were black. The incarceration rate in the U.S. is the highest on the face of the planet. There are roughly 5,000,000 doing their time on probation or parole, though parole has been abolished in some jurisdictions, e.g., the federal system and thirteen states. In 2007, $49 billion was spent on corrections. In 2009 the Texas Department of Criminal Justice, with an annual budget of over $2.5 billion, runs over 155,000 prison beds. California incarcerates some 175,000 people in 33 prisons. In recent years, prisons have become a big business with government farming out inmates to privatized institutions. Wasn't it Friedrich Nietzsche who said, "Distrust all in whom the impulse to punish is powerful." Watch the free video presentations in Torture: America's Brutal Prisons and prison murder in Gladiator Days. In early 2009, 1 out of 31 USA adults is in the correctional process (Including probation and parole). Is this massive criminalization program one reason why violent crimes were down 8.2% in 2007 (1.4.m) in the US compared with 1998 (1.5 m)?
From what the prof says, the punishment decision is what the whole police and adjudication process is designed to facilitate. The idea being that the investigative and prosecutorial stages of the process are structured to identify people who deserve and/or need societal punishment. See Section 1.02 MPC. Sentencing under the MPC is covered in Articles 6 & 7. We won't spend much time on Parts III (Treatment and Correction) and IV (Organization of Correction) of the MPC, but be aware that the MPC of 1962 emphasizes the diagnosis and rehabilitative treatment and correction of curable offenders over punishment for other purposes, e.g., retribution; if an offender is not susceptible of cure, the MPC goal is simple incapacitation. Similarly, Section 1.02 (1) TPC states that the code is intended to deter, rehabilitate, and punish. [By the way, I finally found long lost Uncle Rufus - the one my grandparents kept in the attic, until he got out and robbed the Piggly Wiggly food store with Mammaw's icepick; that's another story, but at least I found him getting three hots and a cot by using this inmate locator. Do you have any missing relatives?]
How do you feel about whipping, amputation and stoning as punishment? As I understand it, punishment for our purposes happens when the government intentionally inflicts suffering because one of its laws was violated. The teacher and a student talked about whether you could have a crime without any punishment. He said "no," she said "yes." What about having some sort of hybrid offense or violation that carried little or no criminal consequence other than a monetary fine. The MPC has something called a "violation." Punishment ranges for penal code offenses in Texas are contained in Chapter 12 TPC; note that there are enhancement statutes for multiple offenders. Information re Texas probation, what the statutes call "community supervision," is contained in Art. 42.12 CCP. The scheme for bifurcated trials and assessment of punishment in ordinary felonies and jail time misdemeanors in Texas is set forth in Art. 37.07 CCP. Parole in Texas is described in Chapter 508 Govt. Code - 508.145 eligibility, 508.147 mandatory supervision; good time credit is discussed in Chapter 498 Govt. Code. Concerning the TPC range of punishment provisions in Chapter 12 TPC, i.e., Class A (0 - 1 year in county jail and/or 0 - $4000), B (0 -180 days in county jail and/or 0 - $2,000), & C ( no incarceration $-500) misdemeanors and five categories of felonies - state jail ( 180 days - 2 years in state jail + optional fine 0-$10,000), 3rd (2-10 years in prison + optional fine 0-$10,000), 2nd (2 - 20 years in prison + optional fine 0-$10,000), and 1st degree (5 - 99 years in prison or life + optional fine 0-$10,000), and capital murder (life or death, no optional fine). I noticed that some of the punishment ranges overlap each other. To that extent, I don't see that it makes any difference if a convict gets 10 years for a 3rd, 2nd, or 1st degree felony. Ten years is ten years. Range of punishment for the crime matters a lot in Texas when we agree, for example, that the convicted criminal deserves 25 years, since that sentence is only available for a 1st degree felony. So, when the punishment ranges are discrete and exclusive, it matters a lot more how crimes and defenses are defined. What about enhancement (recidivist) sentences for ex-offenders? These harsh punishments for recidivists seem to be a mite too popular for me. The U.S.S.C. recently upheld the California "Three Strikes and You're Out" law in Ewing v. California, 538 U.S. 11 (2003) where the ex-convict golf-club shoplifter got a mandatory 25 to life sentence. (1 - article re 3-strikes) As to fines, I wonder what happens when the defendant is "flat-busted," i.e., too poor to pay the fine or indigent. Holding an indigent person for non-payment of fines is like the old English concept of debtor's prison. Apparently the U.S.S.C. says you've go to give the indigent an opportunity to pay in installments. See Bearden v. Georgia, 461 U.S. 660 (1983). Note: The Texas Legislature has made things interesting by creating some non-TPC offenses that don't follow the TPC ranges of punishment. See Section 12.41 TPC. Finding these crimes and their punishment range is like trying to find a straw in a needlestack.
Sentencing by jury or judge - The professor tells us that in Texas the procedure normally allows the accused to choose between having the jury or the judge determine the punishment. In most states and in the federal system, the judge determines the punishment. Look at Article 37.07 of the Texas Code of Criminal Procedure for the Texas statutory procedure for punishment in jail time misdemeanors and felonies. After looking at Art. 37.07, it seems that Texas has a two-part bifurcated criminal trial system, with the first hearing being to determine if the accused is guilty, i.e., did he do it, and, if he is found guilty, a second hearing (known as the punishment hearing) is then held to determine what to do with him (or her). Punishment can involve execution, incarceration, fine, probation, forfeiture, restitution, etc.
This whole idea of indeterminate sentence is only good if you believe in rehabilitation. I'm not sure I do. Maybe it's better to just give criminals a flat sentence. But should we have parole? The sentencing guideline idea that the federal criminal justice system employs sounds pretty good for avoiding disparity of sentences. (Didn't Aristotle say, "Justice is when you treat like cases alike and unlike cases unlike, and injustice is when you treat like cases as unlike and unlike cases as like"? Huh??)
On the issue of punishment, the Bill of Rights protects against double jeopardy and provides equal protection of law. It also outlaws cruel and unusual punishment but doesn't indicate what qualifies as "cruel" or "unusual." (So does MPC Sec. 1.02(2)(c) and Sec. 1.02 (3) Tex.CCP. I suppose the courts fill in the blanks on that on a case-by-case basis. I can see morally why the government should have to have some bona fide justification before it intentionally inflicts suffering on an of us. (Note to myself: I wonder how many of the people in school, including the instructors, have driven while under the influence. Do you think any of 'em have ever been convicted of DWI or DUI? Al Gore and Bill Bradley didn't admit to smoking grass! Hey, ex-President Bush2 has a DWI rap sheet and won't even talk about what controlled substances he messed with prior to some year in the mid-eighties. I wonder if any of our class, besides me, have ever been in a drunk tank. It seems to me that just going through the so-called criminal justice process is informal punishment; even if you finally get acquitted or if the judge dismisses the case, you have to go through the booking process at the cop shop, getting a permanent criminal record in the process; then you cool your heels in jail watching your back and eating cold oatmeal, baloney sandwiches, etc., while washing it down with lukewarm kool-ade that some inmate cook in the jailhouse kitchen spit in, until someone, if any, that cares about you makes your bail by paying a bondsman at least 10% of the face amount of the bond - money that you don't get back, even if you show up in court; of course, you've also got to find and pay a good lawyer to guide you through the process, talking and writing for you; unless you want to plead poverty and ask for a court-appointed lawyer, who, aside from personal pride, often has no real monetary incentive to work very hard to get you off. To me, all these pretrial procedural hurdles that the wrongly accused accused has to go through constitute substantial unfair punishment, informal though it my be. At least, my jailers didn't do the Iraqi Abu-Garib prison "human pyramid" thing.)
After doing your time and supposedly "paying your debt to society," is it punishment to be deprived of certain civil rights like the right to vote or hold certain licenses, e.g., barber or attorney? Fact: There are about 4 million disenfranchised felons in the U.S., about 1.5 million of whom have completed their sentences. On suffrage, I know that there are some states, e.g., Alabama, Iowa, Mississippi, Virginia, Florida, Kentucky, Nevada, Wyoming, that deny all ex-felons the right to vote - for life. They say there are about 600,000 disenfranchised felons in Florida, about a third of them are black; Former VP Gore would have surely won the presidency in 2000 if Florida ex-cons could have voted. Maryland has about 136,000 ineligible ex-felons. Supposedly there has been a move to relax the voting rights restrictions in some states, e.g., Delaware, Maryland, New Mexico, Connecticut. But others, Massachusetts and New Hampshire, have tightened up. I think Maine and Vermont actually allow felons to vote while they are in prison. That might seem pretty liberal, but isn't it a person's civic duty to vote. This is a tough policy question. I don't want ex-cons to be a constituency that decides elections, but I wonder if a conviction should entail a lifelong disability to vote.
On the philosophy of punishment- The retributionists seems to emphasize "just deserts" (the federal sentencing guidelines he talked about are kind of a laundry list of just deserts) and proportionality. Whereas, the utilitarians want to employ sentences primarily to lower the crime rate and protect the public. In recent years the goal of rehabilitation has taken a backseat to retribution. With draconian sentences readily available for serious crimes, the purpose of punishment sometimes seems to be nothing much more than "incapacitation of convicts, i.e., as long as they are locked up, they can't harm us. Jail and prison seem to be the punishments of choice for a lot of people in the US. I guess the big question is: Who belongs there? One of the big policy questions is whether the punishment should fit the crook as well as the crime. To me, the answer is clearly that the punishment should fit the crime, but I would also further tailor it to fit the relevant characteristics of the particular crook. I've often wondered why old folks don't commit crimes. Does age bring wisdom and good judgment? When an old foggie commits a crime, should s/he get less time than the younger counterpart? What do we mean when we say, "The defendant has been punished enough"?
Hate Crimes - The MPC doesn't seem to have a hate crime statute. It has an harassment statute in Sec. 250.4 MPC. Texas does have a hate crime law; the law was amended in 2001 in response to the Jasper - East Texas dragging case. [Note re hate crime: The current Texas hate crime law is in Section 12.47 TPC, which appears to bump everything except a first degree felony and Class A misdemeanor up one category and Article 42.014 Tex. CCP, which indicates that the bias/prejudice categories include a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference. These statutes seem to cover so-called hate crimes. My question is: If A stabs (attempted murder) B because A "hates" B for being a lousy, abusive husband -- why shouldn't that be a "hate crime" that goes from a 2nd to 1st degree punishment level? Maybe because it doesn't fit any of the bias/prejudice group categories. He wasn't stabbed for being a male, just for being a loutish whanker. If a European-American hijacker chooses to hijack a "stop and rob" convenience store run by an Asian-American, rather robbing the one down the street owned by an African-American, is that hijacking a hate crime if the decision on which store to rob is influenced in part by the race of the operator? It seems like it would be. Here's some good information to buff me up on hate crimes. Take a look also at what the USSC said in Wisconsin v. Mitchell, 508 U.S. 476 (1993).]
Note: The feds and many states utilize sentencing guidelines in determining the punishment for individual defendants. For information on the Federal Sentencing Guidelines, I can go to Westlaw and use the database (FCJ-FSG) or go to the USSC page. There is also a book Federal Sentencing Law and Practice in the Sentencing Practice database (FSLP) that explains the guidelines. To get a good flavor of sentencing, with minimal effort, hit this web site. For an interesting discussion of disparity of sentencing among 614 federal courts in 151,395 cases during 2000-2001, see the Trac Reports of Syracuse University. The Federal Sentencing Commission, the body that writes the federal guidelines, has a web site that's worth a peek. The Wisconsin Public Defender has some information about their state sentencing guidelines. Oddly enough, about half the states, including Texas, have resisted sentence guideline reforms and have adhered to indeterminate sentencing. In Texas, the defendant's right to choose between jury and judge sentencing in many instances, coupled with the existence of parole and the existence of draconian maximum sentences, makes sentencing in non-plea-bargained cases a major crap shoot. For up to date explanations of the law of sentencing, look at this professor's excellent sentencing blawg. NOTE: The influence of the Federal Sentencing Guidelines has been substantially limited by the United States Supreme Court in United States v. Booker and United States v. Fanfan , 543 U.S. 220 (2005) on the ground that judges invade the Sixth Amendment right to trial by jury when they are given power to increase or enhance sentences based on factors that should be decided by juries. See also Blakely v. Washington, 542 U.S. 296 (2004) on the CCJA Motions page where there are also some additional research links to various court web sites. Hasta.
CONDUCT (Actus Reus) - Act / omission / possession - Quoi de neuf? This is a new topic and ties into the elements of a crime concept as the actus reus (conduct). Major Rule: If there is no criminal conduct, there is no crime. Evil thoughts alone won't do. You need an act, an omission of duty, or possession for a crime. Possession is mentioned in Section 2.01(4) MPC. Concerning acts, look at TPC Section 6.01 and MPC Section 2.01 for the law re the requirement of a voluntary act. The MPC doesn't specify acts that would be voluntary, but it does have a non-exclusive laundry list of acts that would qualify as involuntary acts of bodily movement, e.g., automatism, sleepwalking, convulsions, unconsciousness, reflexes, hypnosis, in Section 2.01 (2) MPC. See also Section 1.13(2)-(7) MPC. Texas doesn't have an analogous list Also, the voluntary act requirement of the MPC does not apply to so-called "violations" as opposed to "crimes." See Section 2.05 MPC. It seems like the concept of conduct includes voluntary acts, omissions, and possession. If I understand this correctly, the act must always be voluntary as opposed to involuntary. So, outside of liability for failing to do something (omission) or possession, it appears that voluntariness of the act (actus reus) is an element of crime. If the act is not voluntary (some sort of bodily movement that is the product of the actor's conscious free will or habit) there's no criminal act, e.g., where D pushes X into V causing V to fall over a cliff to V's death, X's conduct would not be voluntary. If you look at the end of the Three Stooges VIDEO "Sing A Song of Six Pants," you could argue that Shemp's act of striking the robber in the face with each revolution of the hat rack was not a voluntary act. Since the prosecutor has to prove each element of the crime, e.g., a voluntary act beyond a reasonable doubt (BARD), it would seem that a defendant like Huey P. Newton, founder of the Black Panther Party (Video), in People v. Newton, 87 Cal. Rptr. 394 (Cal. App 1970), (1) only has to raise some evidence that he was unconscious at the time of the offense and the prosecutor would have to prove BARD that he wasn't. This makes sense if we are basing criminal liability on free will. An involuntary act in and of itself doesn't involve the exercise of free will or choice to have one's body do something. What if a person with a known history of epileptic seizures (VIDEO) suffers a convulsion while driving a car and kills some people when he loses control of the car. See People v. Decina, 138 N.E.2d 799 (NY 1956). Would he be liable for negligent or maybe even reckless homicide (again not "homocide") because he committed the voluntary act of driving the car knowing that he was subject to the blackout or seizure, even though the seizure itself wasn't voluntary? If so, all the acts of the accused don't have to be voluntary, as long as there is a voluntary act that happens concurrently with the necessary mens rea and it's the legal cause of the societal harm. [Note: Keep this in mind if you face a exam problem with a defendant who is unconscious or asleep when the result occurs.] The epileptic might have had a good argument against liability if he had no inkling that he might have a seizure, because he wouldn't have committed a voluntary act with the required mens rea. I'd like to know how many people drive cars with knowledge that they have a condition, e.g., multiple heart attacks, that might cause them to black out (1). [ Note: Again, you'll find that it helps to brief the cases in the casebook if you look at Dressler's Table of Cases in the back, p. TC-1, of the 5th edition of the UCL book.; some of the cases in our casebook are also discussed in the UCL hornbook.; it makes the case easier to understand when you've read what the hornbook says about it.] Dressler raises a couple of interesting questions about the voluntary act requirement. What if the actor is hypnotized when s/he does the act? What if the actor has multiple personalities and one personality does the act voluntarily while the another personality that is on trial for the crime was "unconscious"? Is the act voluntary or involuntary? Question 1: What if I'm drunk on the floor of the den in my house and my neighbor comes over and drags me out onto the street in front of my house? The cops come and find me sitting in the middle of the street blitzed. If I'm arrested for public intoxication under TPC Section 49.02, am I guilty as charged? I'm looking for my voluntary appearance in public, and I'm having trouble finding it. It doesn't seem like I consciously chose to be in public; therefore I am not guilty of public drunkenness. Question 2: Suppose D forces V at gunpoint to strap a bomb to V's chest for which D has a remote detonator. D tells V that unless V robs the bank for D and turns the loot over to D, D will detonate the bomb. Under these circumstances, I say that V's conduct in robbing the bank should be viewed as a voluntary act - consciously chosen - albeit with a strong defense of duress (coercion) potentially available. (See Bushrod 2's discussion of duress or coercion.)
OMISSION TO ACT: It seems like liability based on a criminal omission, failure to perform a legal duty, is pretty rare in criminal law. Moliere's statement, "It is not what we do, but also what we do not, for which we are accountable," doesn't seem to reflect the general policy of criminal law. Most of the crimes seem to be based on a person doing what the law says he can't do, rather than not doing something the law commands him to do. Most laws say, "Thou shalt not ..." instead of "Thou shalt..." (Like most of the Ten Commandments?) So, what I am looking for is not simply an omission to act but an omission that violates some recognized obligation (duty) to act. The common law appears to have recognized duty flowing from various situations, e.g., statutes, special dependency relationships (parent-child, spouses) contractual obligations, assuming a duty of care, and creating a perilous situation. The MPC, Section 2.01(3), seems to impose such a duty in only two circumstances, namely, when the definition of the offense makes omission actionable or when a duty to perform the omitted act is imposed by "law." ("Law" can mean C/L, e.g., duty of parent to child, or statutory law under the MPC.) The MPC doesn't say expressly anything about the omission having to be voluntary, but it only makes sense that it, like an act, would also have to be voluntary to be actionable. See also Section 1.13(4)-(7) MPC. Texas deals with omission in Section 6.01(c). For examples of direct omission crimes, one may look at criminal non-support in TPC Section 25.05 and in the crime of failure to report aggravated sexual assault of a child under TPC Section 38.17 TPC and failure to immediately report a dangerous felony under Section 38.171 TPC. Regarding the general issue of whether we ought to have a society that allows people not to get involved in other people's troubles, I need to look at this VIDEO describing the infamous Kitty Genovese case where 38 people sat on their thumbs while Kitty was murdered. (1- the case) Also, I am looking at Commonwealth v. Pestinikas, 617 A2d 1339 (Pa. 1992), where a couple of funeral parlor operators who contracted to take care of an aged and feeble old man and left him to die of thirst and malnutrition on screened porch of an isolated cabin, in light of the injury to an elderly person crime described in TPC Section 22.04(a)(1), (b)(2). Do you wonder if Texas should have a rescue statute that requires one who knows another is exposed to grave physical harm to give reasonable assistance to the other if this can be done without danger or peril to the rescuer? I checked up on the so-called "Good Samaritan - Bon(ne) Samaritain(e)" statutes and found that about 40 states have them; this type of law, unlike rescue statutes, doesn't impose a duty to care for others; it simply encourages persons, e.g., medical doctors, to render aid in emergencies by holding that the doc who renders emergency aid shall not be held liable in civil damages for negligent (maybe even grossly negligent) treatment. Note to myself: I need to remember that failure to perform a required duty is not criminal if the accused was not physically able to perform, e.g., the parent who doesn't rescue the drowning child in the ocean because the parent can't swim. Also, even though the actus reus (conduct) element may be satisfied with an actionable omission, most crimes also require a mens rea (culpable mental state) and some require causation and a result. Omission is just one part of the equation. I wonder what happens when a spouse of a mentally ill person leaves kids with that person? Does the spouse have a legal duty to the kids to keep the mom away from them? There are two Texas cases involving insane mothers who kill. Both had spouses at the time? (1) (2)
Possession is deemed as an act by MPC Section 2.01(4) and TPC Section 6.01 (b). It looks like you have voluntary possession when an item is knowingly acquired and/or knowingly retained. To me, being in possession of an item is more like a condition or status, but the two codes look at it as conduct. If my girlfriend Sally, who has an appetite for nose candy, asks me to hold her purse while we are walking her dog, am I in possession of the blow she has in the purse? What if I don't know it's there? What if I do know it's there but also know its not mine because I don't use the stuff?
OMISSION HYPO: What do you think about this hypo? Suppose V wants to swim across a lake and asks stranger D to follow in his canoe in case of problems; D agrees to paddle behind V to the other side; half-way across the lake, D gets bored, quits following V and paddles back to shore; V screams a protest that D ignores; V then cramps and drowns. Having undertaken the duty that he otherwise did not have, is D criminally liable for an omission to act, i.e., failure to monitor and rescue V, that caused V's death? Or is this more correctly visualized as death of V caused by a voluntary act of D, e.g., D assuring V before V began his swim that D would be there for V in case of danger and then paddling far enough to lure V into the danger zone before breaking the promise and paddling away? Would V have died when he did if D had not even existed? If V would not have made the swim unless D promised to provide protection, the answer to me is "No." Of course, if V was going to make the swim regardless of whether D was going to accompany him, V probably would have died when he did even if D did not exist. Does if look like an actionable omission of a duty of care of V that was voluntarily undertaken and then omitted by D. D had no duty to V until it was triggered by his agreement to safeguard V.
MPC Influence on Courts: In reading casebooks, you may notice that courts in jurisdictions that have not legislatively embraced the MPC, e.g., federal and California, look to the MPC for guidance in interpreting statutes. Not one state has adopted the MPC en toto, but forty or so have relied heavily upon it when revising their statutes. Uniform acts are designed for complete adoption. Model acts, e.g., MPC, are there for states to pick and choose over. The professor says that Texas borrowed heavily from the MPC when it revised the TPC in 1974, but also retained a lot of the c/l concepts. The New York, New Jersey, and Illinois Penal Codes are very heavily influenced by the MPC. For example, in connection with the MPC Section 2.02(7) scienter of acting knowingly, we may have a federal case like United States v. Jewell, 532 F.2d 697 (9th Cir. 1976), that raise the issue of whether willful (wilfull) blindness, the so-called "Ostrich" or "Head-in-the-Sand" or "deliberate ignorance" defense, is equivalent to acting "knowingly." Apparently some "mules" (the people who transport the dope) don't actually know for sure that there is dope aboard the transport vehicle. If the courts say knowingly means only "actually know," in the sense of full awareness, and you can't prove BARD that the mule actually knew, the mule would skate. There's an interesting case about expert testimony concerning mules that play dumb in U.S. v. Gutierrez-Farias, 294 F.3d 657 (5th Cir. 2002). See also United States v. Heredia, 483 F.3d 913 (9th Cir.) (en banc) cert. denied (2007). I looked at MPC Section 2.02 (7), and it seems that when knowledge of the existence of a particular fact is an element of an offense, such knowledge is proved when a person is aware of a high probability of its existence, unless he actually believes that it does not exist. That sounds like willful blindness, doesn't it? See also Global Tech Appliances, Inc, et al. v. SEB S.A., __U.S. __ (2011) ,a patent infringement case, where the USSC defined willful blindness as requiring, first, that the defendant subjectively believe that there is a high probability that a fact exists and, second, that the defendant must take deliberate steps to avoid learning of the fact. So the belief re the fact under the federal defintion must also be accompanied by deliberate action to avoid learning of the fact. Strangely enough, I couldn't find anything similar in the TPC, which suggests to me proof of actual knowledge under Section 6.03 TPC is required in Texas state cases.
HINT RE CONDUCT: The professor says that sometimes the bar exam has a crim law question that deals with an involuntary act, such as where a person commits some very bad act while sleepwalking or unconscious. The issue may also come up when one person (A) is struck by an object or by another person (B) and involuntarily falls into or onto some other person (C). It seems like that wouldn't be a battery of C by A because there was no voluntary act by A.
TIP: I know I'm repeating myself for the third time, but it helps me to understand the importance of these cases we are reading if I take time beforehand to refer to Dressler's UCL5th Table of Cases, p. TC-1 in the back of the 2009 edition to see if UCL5th treats the case. Lots of the cases from whatever casebook you are using are mentioned and discussed in UCL. Three out of the first four cases in our casebook fall into this category, e.g., Martin v. State, casebook, Fulcher v. State, casebook, UCL6th; and Robinson v. California, casebookh. Ergo, UCL6th is an excellent source for understanding exactly what the cases you're reading mean and how the blackletter law is applied in real life. Read the corresponding explanatory material in UCL before you read the cases in the casebook. Hey, the prof likes it when you cite UCL6th by page number when answering the assigned hypo problems.
A bientot.
We all carry within us our places of exile, our crimes, and our ravages.
But our task is not to unleash them on the world;
it is to fight them in ourselves and in others.
Albert CamusCOMPUTER ASSISTED LEGAL INSTRUCTION (CALI)
CALI: CALI (The Center for Computer-Assisted Legal Instruction) is a membership organization; +-180 law schools belong to CALI. It features some 720 computer-assisted web based tutorials in 29 legal topic areas, including all of your first year courses, e.g., criminal law. [I have placed hyperlinks in the right hand margin of the Bushrod Notes that will take you directly to discrete tutorials that treat the subject of that particular Note.]
To register for access to the tutorials, go to CALI and click on the "Not Registered User Yet" link. During the registration process, you will also create your own password. In subsequent visits to use lessons, you will only need to enter your email address and your password. To access CALI online, initially you will need to obtain an "Institution's Authorization Code" from your law school, typically available on your law school library's web page or from either a reference librarian or an employee of the patron services department. My students can find the "Institution's Authorization Code" on the Ground Rules page of this web site under CALI.
I suggest that you try CALI as a way of checking your progress by applying the concepts that you are learning to solve multiple choice problems. Although I don't necessarily agree with every suggested answers, the criminal law exercises may be useful in getting a lasso over this course. Some are good, some not so. Completion time for most lessons ranges from 30-60 minutes. [Note: I applaud the CALI folks for putting these useful tutorials together. That said, sometimes interactive technology can be too cute to hold the interest of Generation Y students. You may find navigating their web site tedious, as I - from the Traditionalist Generation - do, and some of the exercises ponderous, but keep plowing for awhile to see if the gain is worth the effort. I think the exercises might be more fun if you do them in a group of 2 or 3. This may promote discussion among the members of the study group. So if you are in a study group, try playing CALI tutorials together.]
UNIT ONE - CULPABLE STATES OF MIND (MENS REA) - STRICT LIABILTY - REGULATORY OFFENSES - INTOXICATION (VOLUNTARY AND INVOLUNTARY) - MISTAKES OF FACT & LAW
INTRODUCTION: About my first name. It's not so the initials are BS. It has nothing to do with the ex-President who got us in all the wars and helped break our economy. No, the folks named me after their favorite US Supreme Court Justice. A relative of George Washington, his name was Bushrod also. Do you know him? Now down to business. The teacher will try to cover about 25 to 30 pages of the casebook each session. Casebook readings for each criminal law (1), (2) class are listed on the Syllabus page of this CCJA criminal law web site. There's also an Assignments page that has suggested readings in Dressler's Understanding Criminal Law (UCL), 5th Edition (2009) and portions of this web site that correspond to the casebook. In addition to reading the cases, we'll be doing three other things. First, we'll look at the common law of crimes and defenses (hereafter "c/l "- originating in England, e.g., see Blackstone's Commentaries - Fourth Book, and carried over to the American colonies and subsequently into state and federal laws) and the web page on Then and Now. Second, we will also refer to the provisions in the American Law Institute's (ALI) Model Penal Code (1) (hereafter the "MPC" - a model act propounded for use as guidance by legislatures in redrafting their state's penal code), excerpts of which are in the casebook and also on the MPC page of the web site. Here's a paper on whether it's time for a Model Penal Code redux (1). It may give you some useful insight re this MPC. If you like reading about criminal law, the Ohio Journal of Criminal Law, run by the guy who wrote our hornbook - Dressler, is on-line with some free downloadable crim law articles. Third, we will look at the Texas Penal Code (hereafter the "TPC" - the basic state law of crimes and defenses enacted by the Texas Legislature and amended in one form or another every time the state legislature meets in regular session, but not so "basic" that there aren't another 1900 Texas crimes found in Texas Codes other than the Penal Code) which is described on the books page of the web site. Because it has not been revised under the MPC and still reflects many old common law concepts, we may also look at a few provisions of the California Penal Code for comparison purposes and examine a few portions of the statutory federal law of crimes California has been resistant to the Model Penal Code and has kept its old common law based criminal code. Strangely enough, the federal criminal statutes have also remained moribund and immune to the MPC. There are no federal common law crimes. See Then and Now.
This criminal law course is about crimes and defenses. It's about what conduct should be criminal. The TPC, Section 1.02, defines a crime as "conduct that unjustifiably and inexcusably causes or threatens harm to those individual or public interests for which state protection is appropriate." Compare to Section 1.02(1) MPC's conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests. Deciding what should be criminal involves consideration of the costs of criminalization. What is the course not about? It's important to know about the right to counsel, the burden of proof, the presumption of innocence, the privilege against compulsory self-incrimination and other safeguards provided by the federal Bill of Rights. But this course is not about criminal procedure (1 - Tex.C.C.P.), (2) and process - though I did find a nice explanation of the American criminal justice system, criminal procedure (1), (3) and the anatomy of a criminal prosecution and anatomy of a criminal trial. Even though Thomas Jefferson thought that "the execution of the laws is more important than the making of them," you'll have to wait for the course in criminal procedure to learn about the administration of the criminal laws. This course is also not about the nascent field of international criminal law (1), (2), (3) or the International Criminal Court. Nor is it about the penal codes or statutory crimes of other countries.
Formal law school education is just the beginning of the legal learning process. In law school, and particularly first year classes, we are just beginning to learn to learn. The primary object of the law school experience is to help us learn to continue learning without hired teachers when we graduate and start practicing law. Under this view, the professors are teaching us to teach ourselves. The teacher is more of a guide than a guru. Lawyers, no matter how experienced, always have more to learn. The professor says that if we do it right, we will spend every year of our lawyer lives learning more than we did the year before. Criminal law isn't going away. (Stats for the U.S. in 2007) There's plenty of business for prosecutors and defenders. A few of us may chose this as our chosen branch of the profession. Many of us won't get through this life without being touched by crime, most as victims and a goodly portion as defendants. (Remember, traffic offenses are treated as crimes in Texas - which makes teenage me a career criminal.)
Whether open or closed, we should study as though the exam will be closed book. Essay portion of an exam will present us with multiple party problems to solve. Objective questions focus more on answers to remember based on application of doctrine from the c/l, MPC, & TPC. The prof will provide more information about the exact make-up of our exam as we progress into the semester. This information will be posted on Announcements. The web site also has a page devoted to Tips for Taking the Exam. That page also has some suggestions about how to excel throughout the semester. Take a look. He's also going to periodically provide us with practice exams containing essay and objective questions. So, lets start.
MENS REA & ELEMENTS OF A CRIME - An evil or culpable state of mind is required of most serious crimes, but evil thoughts alone are not enough to constitute a crime. We simply don't allow people to be convicted for evil thoughts alone. Apparently the so-called elemental approach to defining crime looks at each crime as being composed of distinct elements. The elements of a crime (1) may contain the following elements: (1) actus reus (conduct in the form of act , actionable omission or possession is always required); (2) mens rea sometimes called state of mind or culpable mental state, e.g., intention or purposefulness, knowledge, recklessness, or criminal negligence; (3) attendant circumstances (facts, like the age of a child in statutory rape prosecution, that may have to be proved aside from mens rea and/or actus reus); (4) causation (always required in a result-oriented crime, e.g., murder) connecting conduct to a harmful result; and (5) a harmful result, always required in a result-oriented crime, e.g., a dead person in a murder. For example, a chart that diagrams a result-oriented crime, e.g., intent to kill murder by gunshot, will contain the following elements: (1) mens rea or culpable mental state, e.g., intent to kill or knowledge that the victim is almost certain to die as a result of the accused's conduct, plus (2) an accompanying actus reus or conduct (shooting the victim in the head) that (3) causes (4) a result (death of the victim). Note that intent to kill murder does not require proof of any attendant circumstance. On the other hand, a conduct-oriented crime, e.g., c/l burglary, would not need the last two elements, causation and result, but might require proof of an attendant circumstance, e.g., c/l burglary would require proof that the breaking and entry took place at "nighttime".
Pointing out that the state of a person's mind is as much a fact as his/her digestion, the professor talks about the TPC and MPC approach to "culpable mental states," referring to TPC Section 6.03 and MPC Section 2.02. He tells that there are only four culpable mental states under each of these codes. [The TPC uses the words intent, knowledge, recklessness, and criminal negligence; the MPC seems to have similar mental states except it uses the words purposely, knowingly, recklessly, and negligently.] Both the MPC and TPC have default mens rea provisions that come into play when a statute does not contain a culpable mental state. See Sec. 2.02(3) MPC and Sec. 6.02 (b)&(c) TPC.Recklessness is the default culpable mental state in both. Apparently, at common law (the law that originated in England beginning shortly after William the Conqueror took control in 1066 and was brought over to America by the colonists and that continues today to form the bedrock of the law of crimes and defenses - see Then and Now) mens rea is presumed to be a required element of crime, even if the law or statute is silent with regard to mens rea. Check out TPC Sec. 6.02 (b) which seems to have the same effect, i.e., unless the definition plainly dispenses with any mental element (See Section 49.11 TPC as a example of a statute where the legislature did decide to dispense with the requirement of a culpable mental state in all Chapter 49 Intoxication and Alcoholic Beverage offenses.) a mental state is nevertheless required. Under the TPC, intent, knowledge, or recklessness suffices to fill-in-the-blank for the mental state in a statute that leaves it out; so we use the lowest level - recklessness. It looks like the MPC does the same thing in Section 2.02(3) except it always applies when the MPC definition is silent as to the culpable mental state. The professor says that the MPC only recognizes the mental state of negligence in one offense, i.e., negligent homicide. The TPC and MPC seem to reject the concept of criminal liability based on the mens rea of ordinary tort negligence that we study in torts. The idea is that the criminal lawsuit is a suit brought on behalf of society against a person who allegedly needs societal punishment. Tort suits are between individuals for damages. Of course, the punitive damages that may be allowed in a tort suit go to the individual plaintiff (with 40% typically to the lawyer) not to the government!
The MPC, Section 1.02(1)(a), defines a crime as conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests. The MPC and TPC look at crimes as being composed of elements. Look at MPC Section 1.13 (9) & (10) defining "elements" and "material elements of an offense." Non-material elements are those that relate to jurisdiction, venue, statute or limitations. etc. These non-material elements are not connected to the harm or evil that the crime seeks to protect us from; the MPC culpable mental states don't modify these non-material elements. See MPC 2.02(4). This would seem to be relevant to a case like United States v. Yermian, 468 U.S. 63 (1984) where the USSC was faced with the statutory construction task of determining which elements of a federal statute were modified by the culpable mental state. This was a dicey issue because the federal code doesn't contain guidance like MPC Section 2.02 (4).
Acta exteriora, indicant interiora secreta. - Outward acts show inward intent. The professor says we should look at all of TPC Section 6.02 (re the requirements of mental culpability). It is important. Also, it is very important to study the definition of the four culpable mental states in TPC 6.03. He says look for "conscious objective or desire" in cases of intentional conduct, "awareness" that something is almost (or reasonably) certain to occur in cases of knowledge, "conscious disregard of a known substantial and unjustifiable risk" in cases of recklessness, and "gross disregard of the standard of care that an ordinary person would exercise" in cases of negligence (the only one of the four levels of culpability that is objective rather than subjective in nature). Obviously, a person may do a good or bad deed for good or bad reasons. Mens rea or culpable mental state focuses on the mental state and not the conduct. So the most mentally culpable person is the one who acts with bad intentions. When you couple those bad intentions with bad deeds, you've got your most socially dangerous person.
STRICT LIABILITY: Let's start off visiting about whether there are some crimes that shouldn't have a mens rea. Have any of us committed strict liability criminal offenses? (1 - Wiki). There should be some agreement that virtually all of us have committed a so-called strict liability crime within the last 24 hours, i.e., a traffic offense such as speeding or changing lanes with signaling, etc. For people who drink alcohol in Texas, all of the intoxication and alcoholic beverage offenses, e.g. DWI, in Chapter 49 TPC seem to be strict liability crimes. See Section 49.11 TPC. Lots of the highway safety laws are strict liability criminal offenses. In recent years we've seen an expansion of so-called "public welfare" and "malum prohibitum" crimes..Good or bad idea? What about the culpable mental state of serious offenses controlled substances violations? Should these crimes be strict liability offenses? See the Texas Controlled Substances Act - Ch. 481 H&S Code. The cases and hornbook seem to indicate that the most common and serious (malum in se - evil in themselves) crimes, e.g., theft or larceny, require a mens rea, e.g., intent to steal, of some sort. But some offenses, such as public welfare offenses, e.g., environmental pollution (1) such as that described in United States v. Weitzenhoff, 1 F.3d 1523 (9th Cir. 1993) (1), (2) food and drug contamination, narcotics possession, may dispense with the mental element. The famous old USSC appropriation of bomb casings case, Morissette v. United States, 342 U.S. 246 (1952) is found in almost every casebook. It shows us the importance of mens rea and how it will be read into a poorly drafted federal statute. Contrast that with public welfare cases, e.g., environmental pollution, where legislators may want to impose strict liability and attach fairly minimal punishment. See Staples v. United States, 511 U.S. 600 (1994) for discussion. Of course, there may be serious traditional crimes that dispense with mens rea, and impose strict liability,e.g., c/l felony murder where a person who is committing a felony, during which someone dies accidentally, is liable for murder for the accidental death that takes place during the felony. The MPC version of felony murder doesn't dispense with mens rea. See Section 210.2(1)(b) MPC. Section 2.05 MPC contains the only reference I can find to MPC liability without mens rea. It provides that the MPC culpability requirements of Sections 2.01 and 2.02 don't apply to offenses which constitute violations, unless the requirement involved is included in the definition of the offense or the Court determines that its application is consistent with effective enforcement of the law defining the offense; also, an offense defined by a statute outside the MPC can be a strict liability offense so long as a legislative purpose to impose absolute liability for the offense or any material element of it plainly appears.
INTOXICATION AND MISTAKE: There are two defensive concepts that should be considered in conjunction with mens rea (culpable mental states). It's because these two subjects deal with situations where an actor may lack a required mens rea (culpable mental state). Either of these might be used to negate mens rea in a crime with a culpable mental state i.e., the actor might be so intoxicated that he could not form the required mens rea or he might be mistaken about some relevant element of the offense. Of course, the concepts are intoxication and mistake. As a practical matter mistake is best visualized as having two parts, namely, mistake of fact and mistake of law.
Intoxication - Seneca the Elder said, "Drunkenness is nothing but voluntary madness." The Texas rule re voluntary intoxication is in TPC Section 8.04. Texas and, to some extent, at least twelve other states (Penn. 18 Pa. C.S.A. Section 508, Del., S.C., Ga. Fla., Miss., Mo., Okla., Az., Mont., and Id.) reject the use of voluntary intoxication as a vehicle for negating mens rea, including specific intent. See Hawkins v. State, 605 S.W.2d 586 (Tex. Crim. App. 1980) indicating that Tx. does not allow evidence of voluntary intoxication for the purpose of showing whether the defendant had the capacity to form the requisite intent for a specific intent crime. See also Douglas v. State, 2001 WL 1048533. This policy is supported by the USSC decision in Montana v. Egelhoff, 518 U.S. 37 (1996).
Also look at Section 2.08 of the MPC. The general MPC rule is that self-induced (voluntary) intoxication is not a defense. The MPC creates an exception if the intoxication negates (negatives) an element of the offense. There is then an exception to the exception, i.e., "When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such awareness is immaterial." The MPC seems to permit use of voluntary intoxication to negate a culpability (mens rea) element of any crimes where the mens rea is greater than recklessness. The practical effect is that voluntary intoxication can be used to negate purpose and knowledge. But voluntary intoxication cannot be used to show unawareness of a risk that the actor would have been aware of if he hadn't been voluntarily intoxicated. (This exception to the exception to the general rule makes sense if it's deemed reckless for one to voluntarily get so smashed, ripped, or blotto that s/he would commit a crime where the culpability is based on recklessness.)
The common law seems to allow a defendant to use voluntary intoxication to negate the specific intent of any specific intent crime, but doesn't allow it to be used to negate general intent of a general intent crime like common law murder. (I wonder which crimes are classified by c/l as specific intent crimes? I think the group includes common law offenses like larceny, burglary, robbery, false pretenses, embezzlement, kidnapping for ransom, assault as an attempted battery, inchoate crimes like solicitation, conspiracy and attempt, etc. General intent crimes include battery and rape as well as the two common law crimes that have malice as their mens rea, arson and murder. I also know from the discussion that voluntary intoxication can never be used to negate mens rea of general intent murder down to common law manslaughter.) United States v. Veach, 455 F.3d 628 (6th Cir. 2006) is a good example of intoxication, either voluntary or involuntary, negating specific intent of a specific intent crime. The prof tells us that voluntary intoxication often comes up in law school exams or the bar exam where one of the actors is voluntarily drunk or passed out on drugs. Voluntary intoxication can also come up in a degrees of murder jurisdiction, e.g., CA, where premeditation is an element of first degree murder and can be negated. Of course, the c/l does not recognize degrees of murder and neither the MPC nor TPC uses premeditation as an element of murder or capital murder. Involuntary intoxication, a different concept, does seem to be a c/l defense to all offenses, including strict liability, general and specific intent offenses. Involuntary intoxication functions as a means whereby the defendant may be excused for what amounts to insanity (temporary) if the involuntary intoxication rises to the level of insanity as that defense is defined by the c/l. The professor encouraged us to check out the jury instructions in a CA child felony-murder case! p.30 - actus reus/mens rea; p. 52 - "knowingly" defined, p. 33-34 - voluntary intoxication, p. 36-42 - felony-murder defined, p. 44 - kidnapping defined. Here's a very funny VIDEO of a kid who got loopy on an intoxicant at the dentist's.
Mistake of Fact - This idea of mistake seems to be in two parts. The mistake of fact rules are different when you look at the common law, the TPC Section 8.02, and the MPC Section 2.04. That means that the same factual mistake will be sorted out differently according to the jurisdiction. It seems like the common law rule on mistake is different depending on whether you are trying to negate the specific intent (mens rea) of a c/l specific intent crime (a good faith unreasonable - negligent - mistake is a defense) vis a vis the general intent (mens rea) of a crime (either a specific intent crime or a general intent crime) where the mistake has to be in good faith and be reasonable (not negligent). Texas seems to require all mistakes of fact to be reasonable, i.e., not negligent. So if a defendant picks up your umbrella negligently or recklessly believing it is hers, she has no mistake of fact defense in a Texas theft case because her mistake was unreasonable, even though she lacks the required intent to steal. Like Texas. the MPC doesn't seem to distinguish between specific and general intent, but it doesn't seem to require the good faith mistake of fact to be reasonable. Read UCL 5th CH. 12, particularly re the "moral wrong" and "legal wrong" doctrines of mistake of fact and Bullets I. Note that if there is a mistake of fact that would otherwise afford a defense, it's not available under the c/l, MPC or TPC if the defendant (D) would be guilty of another offense had the situation been as D supposed. But while the c/l denies D in this situation any benefit from the mistake of fact, the MPC Section 2.04(2) and TPC Section 8.02(b).state that the mistake of fact reduces the offense to the offense of which D would be guilty had the situation been as the D supposed.
How do you feel about imposition of strict liability for sex crimes such as statutory rape (sexual assault of a child)? If strict liability re age is imposed, a mistake of fact re the age is of no relevance to liability for the substantive strict liability crime, no matter how reasonable the mistake concerning the minor's age is. There are some states, e.g. California, Arkansas (except where the accused is twenty or over at the time of the act), Ohio and Missouri depending on the age of the child, and Tennessee when the sexual assault is not aggravated, that recognize reasonable mistake of fact concerning age as a defense to statutory rape (sexual assault of a child) in some circumstances. It seems like most states, e.g., Alabama, Florida, Georgia, Iowa, Louisiana, Massachusetts, Michigan, Nebraska, North Carolina, Utah, don't allow it on the age issue. What do you think the cut-off age to define a child should be under statutory rape (sexual assault of a child) crime. It looks like one becomes an adult for purposes of consent to intercourse at age ten under the c/l and MPC. Texas says that an individual can begin to give legal consent to sex acts at age 17 and that until then one is a "child" and not legally capable of consenting to sexual acts except with one's spouse. See Section 22.011 (c)(1) TPC Wow! I wonder how many "children" are victims of statutory rape (sexual assault of a child) in Texas every day.
Mistake of Law - Section 8.03 TPC specifically defines what qualifies as mistake of law. The MPC covers both mistake of fact and law in MPC Section 2.04. Read UCL5th CH. 13 and Bullets 1. Good faith reliance on one's own reading of the law as well as one's lawyer's advice won't provide a defense. However, if the statute defining the defense requires knowledge of the law as an element, the prosecution must prove it. Also, reasonable reliance on an official interpretation of the law is a defense under the c/l, MPC Sec. 2.04(3)(b) and TPC Section 8.03.
Ignorance of the Law (Ignorantia juris non excusat.) - Simply being unaware of a law you are accused of violating appears not to be a defense, unless, of course, the definition of the offense provides that awareness of the specific law is an element of the crime. Notice that bigamy in Texas under TPC Section 25.01 (c) is not a crime if the actor reasonably believed at the time of the commission of the offense that the actor and the person whom the actor married or purported to marry or with whom the actor lived under the appearance of being married were legally eligible to be married because the actor's prior marriage was void or had been dissolved by death, divorce or annulment.? Of course, the the law must be published or otherwise made available to people governed by it, else a claim of ignorance in available. Look at MPC 2.04(3)(a) that says, "A belief that conduct does not legally constitute an offense is a defense to prosecution for that offense based upon such conduct when the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise made available prior to the conduct alleged." The famous ignorance of the law USSC case of Lambert v. California, 355 U.S. 225 (1957) wouldn't fit the MPC lack or notice and publication mistake defense of the MP because that felon registration law was actually published in the Los Angeles municipal ordinances. Another famous mistake of law case is People v. Marrero, 71 A.D.2d 346 (NY 1979). (1) involving a federal prison guard whose reasonable interpretation of the possession of a firearm law did him no good in a weapons possession case.
Ambiguity as to the application of mens rea (culpable mental state) to the element - What happens when a statute is ambiguous as to which elements the mens rea (culpable mental state) applies to? The MPC contains a default provisions that guide us in determining the state of mind needed for each element. See Sec. 2.02 (4) MPC indicating that when one culpable state of mind is specified in a statute, without distinguishing among the material elements thereof, the culpable mental state seems to travel to all the "material elements" that are found in the statute, unless a contrary legislative purpose appears. MPC Sec. 1.13(9) makes clear that "attendant circumstances" are elements of crime though not material elements unless they meet the definition of material element found in Section 1.13(10) MPC. Sec. 6.02 TPC is not as helpful. Concerning the culpable mental state, 6.02(b) says, "If the definition does not prescribe a mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element." See Section 49.11 TPC as an example. Section 6.02(c) then says,"If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b), intent, knowledge, or recklessness suffices to establish criminal responsibility." However, the TPC does not guide us in determining to which elements the culpable mental state applies. The TPC did not adopt the MPC approach to sorting out the mens rea of "material elements."
Motive - Motive gives character to action. One may wonder whether motive like mens rea is a required element of proof in most crimes. Motive is not generally considered to be an element of a purposeful or intentional crime. Indeed, crime may result even if the criminal's motives are admirable, e.g., the Robinhood syndrome of robbing from the rich and giving to the poor, mercy killing of a loved one, bigamy for religious reasons, etc. By "motive," we typically mean the actor's personal reason for committing the crime. Although many crimes are not done for their own sake but with the view of obtaining an ulterior object, it's not necessary for the prosecution to prove motive in order to convict. However, if a crime requires intent or purpose, one might view the proof of mens rea as reflective of motive. For example, if D kills V in order to get the proceeds of a life insurance policy, we might say that D's mens rea is intent or purpose to kill and that D's motive is to get the insurance money. Motive can be relevant in proof of certain defenses. One example might be the defense of necessity, i.e., allowing commission of one crime to prevent a more serious crime. See MPC Section and TPC Section 9.22 where we balance harm and justify what was otherwise a mens rea crime because on balance the harm that was done was far outweighed by the the more serious harm that was avoided by the doing of the otherwise wrongful act. See Bushrod 2, Assignment Eleven - Necessity. Mmmmm, I wonder, will any of the stuff I learn in this course help me fight that speeding ticket I got last week, trying to get to school on time? I tried my Big Lebowski line, i.e., "I know my rights, man," on the cop. It didn't work. How may cops are there in this state anyway? Approximately 70,000. Almost as many as registered sex offenders?
(Note to myself: I am beginning to think that law school is going to interfere with my social life in a major way, if I read all the stuff on the reading assignments I'm getting in five different courses. (I like LR&W the best because all the rules, e.g., how to cite a case, have square corners. You know when you get 'em right. None of this "What do you think?" crappola.) Do lawyers really have to spend their whole legal lives reading, talking, and writing? (Just in case, I may send off for that chiropractic school application. Cosmotology is also a fall-back option.)
Bushrod Springwater's*
Random Notes 1
moses' Criminal Law
UNITS 1- 10
*Mr. Springwater is a skeptic, not a cynic.
copyright © 2001-2012 Ray Moses
all rights reserved
UNIT SIX - Unintentional Killings, e.g., Depraved Heart (Extremely Reckless) Murder, Involuntary (Reckless) Manslaughter, Criminally Negligent Homicide
These note about criminal homicide will on murders that don't actually involve a mens rea of "intent to kill." The idea of depraved heart (or mind in NY) murder (extreme recklessness, indifference to the value of human life) seems to be illustrated by an old case, Commonwealth v. Malone, 47 A.2d 445 (Pa. 1946), where Malone shot a kid while playing what you could call "modified" Russian Roulette - the safe kind I like where you put a gun to the other guy's head and pull the trigger. Another example of depraved heart murder can be found in another old case, People v. Berry, 556 P.2d 777 (Cal. 1976), where Berry's pit-bull killed Jimmie Soto, a toddler, who wandered within range of the dog; this scenario could apparently qualify as the California version of depraved heart murder (implied malice aforethought). [Note: There's also a more recent fascinating depraved heart murder case from California where a female victim was killed by two Presa Canario dogs. See People v. Knoller, 59 Cal. Rptr. 3d 159 (Cal. 2007). See also State v. Davidson, 987 P.2d 335 (Kansas 1999). But see State v. Bash, 925 P.2d 978 (Wash. 1996). Note also that 29 states have strict tort liability for dog-bite injuries. If you're interested in fighting dogs look at Off the Chain, an interesting video documentary about pit bulls.] Can you think of another example of a crime where depraved heart (extreme recklessness displaying a conscious indifference to human life) might conceivably be used as the mens rea of murder? I can, and it has to do with dead babies. Yes, it's the Shaken Baby Syndrome murders where a baby-sitter doesn't knowingly or intentionally kill the baby. Instead, the sitter loses her cool and violently shakes the baby rupture of vessels in the brain and consequent bleeding that causes coma and death. [Note: There are some reputable members of the scientific community who distrust the science behind the SBS. Read about that for yourself.]
You won't find depraved heart as a culpable mental in Texas murder, Sec. 19.02 (b) TPC; it's pretty clear that this is one of the forms of common law malice aforethought that wasn't embraced by the 1974 revision of the Texas Penal Code. We've learned that the common law did recognize depraved heart (what might be best viewed in modern terms as super recklessness evincing an extreme indifference to the value of human.) The prof said two graphic examples of depraved heart murder might be shooting a razor-tip arrow up into the air over a very crowded beach or firing a deer rifle into a passenger train - both supposedly done by a person who actually didn't intend to kill anyone. Depending on how many people were present on the beach, e.g., one or 10,000, Texas might handle that situation with several different culpable mental states, e.g., "knowingly" (where actor is aware that the result is reasonably certain to occur) or maybe recklessly (where the actor consciously disregards the substantial and unjustifiable risk that someone may be killed and that disregard in a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint) or criminally negligent (the actor wasn't aware of but ought to have been aware of the substantial and unjustifiable risk that death would occur and the failure to perceive the risk was a gross deviation from the standard of care that an ordinary person would have exercised under all the circumstances as viewed from the actor's standpoint). The point is that if there are only a couple of people on an enormous stretch of beach rather than a beach where people are stacked like cordwood, the mens rea of the arrow shooter may not be c/l depraved heart; instead, it may be nothing greater than recklessness (not extreme recklessness) or perhaps criminal negligence or conceivably nothing more than ordinary tort negligence or simple accident.
I'm beginning to see how important mens rea (culpable mental state) is. State of the actor's mind seems to be the main thing that distinguishes these various criminal homicides from one another and also distinguishes between non-criminal homicide and criminal homicide. Of course, common law F/M, an accidental killing during the course of a felony, seems to haves its own separate reason for existence.
The MPC Sec. 210.2(1)(b) talks about recklessness that is reflected (manifested) by "extreme" indifference to the value of human life. It seems to approximate the concept of "depraved heart," but with less flowery descriptive lingo and a more understandable brain-based definition.
I suppose one reason why malice aforethought murder was not viewed as a specific intent crime at common law is because there are three ways of having malice aforethought without an intent to kill, i.e., felony murder, depraved heart, and intent to inflict serious or grievous bodily injury short of death that causes death.
Note: Take a look at Texas' (strict liability) intoxication manslaughter under Sec. 49.08 TPC along with Sec. 49.11 TPC and Sec. 6.02(b). (It makes sense not to require the prosecution to prove a culpable mental state because a drunk who gets behind the wheel and kills someone because of the drunken driving is probably reckless per se. So, why force the prosecution to prove it, if it's already there?) I can't find a crime analogous to TPC intoxication manslaughter in the c/l or the MPC. Among those three bodies of law, it seems peculiar to Texas.
Misdemeanor-manslaughter (stepchild of felony/murder), the doctrine that a death occurring during the commission of a misdemeanor (or sometimes a non-dangerous felony) is involuntary manslaughter, is recognized at common law, but not under the TPC, MPC or the law of many states.
Involuntary manslaughter is recognized by the C/L.. Texas and MPC don't divide manslaughter into two crimes like the c/l. Instead, it's one crime, manslaughter. TPC and MPC have the crime of criminally negligent homicide instead, which the c/l doesn't. It's clear that Texas and the MPC recognize the mens rea of criminal (gross) negligence. Even though the MPC describes the culpability only as negligence, Section 2.02 (2) (d) MPC describes the risk of which the accused is unaware as being of such a nature that the failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the accused's situation. Negligent homicide is almost the only crime I can find in the MPC that uses the culpability element of (criminal) negligence one other is criminal mischief under Section 220.3 (1) (a).
There's a famous old case from the 1940's involving a deadly fire at the Coconut Grove nightclub. The case, Commonwealth v.Welansky, involved a judge trying to sort out the difference between c/l recklessness and criminal negligence and which of those was the mens rea for c/l involuntary manslaughter. Recklessness was the apparent mens rea of involuntary manslaughter with extreme recklessness in the form of depraved heart being one form of c/l malice. Another even more fascinating locked door fire case is the Triangle Shirtwaist Fire of 1911 - where 147 people perished and the owners were acquitted of manslaughter under jury instructions that required proof of actual knowledge by the owners that the doors were locked.This devastating fire was the subject of a recent book - David Von Drehle, Triangle: The Fire that Changed America."
Note: In keeping with his practice for the past ten years, the teacher asked the Herculean person who made the top grade on recent criminal law exams to make a Top Gun" videotape telling us how s/he went about studying for the exam. I watched a 10 minute tape, and was useful. It gave me hope that I can ace the exam if I just keep studying! It's definitely a mistake to wait until the last minute to start reading in this course. I'm going to try to follow the student's advice. A desultory (I've been trying to find a place to use that word.) attitude doesn't seem to work too well in this place. "Nice marmot," sayeth the Dude.
"Laws are partly formed for the sake of good men, in order to instruct them how they may live on friendly terms with one another, and partly for the sake of those who refuse to be instructed, whose spirit cannot be subdued, or softened, or hindered from plunging into evil."
UNIT ONE - Common Law - Model Penal Code - Culpable State of Mind (Mens Rea) - Strict Liability - Regulatory Offenses - Intoxication - Mistake of Fact - Mistake of Law - Strict Liability
UNIT THREE - Void for Vagueness - Principle of Legality - Statutory Construction - Ambiguity - Rule of Lenity - Moral Codes - Abortion - Homosexual Conduct - Sentencing Discretion - Punishment - Hate Crimes - Sentencing Guidelines
UNIT FOUR - Capital Punishment - DNA Exonerations - Sentencing Procedure - Pro and Anti-Death Penalty Arguments
UNIT FIVE - Criminal Homicide - Murder - Voluntary (Sudden Passion) Manslaughter - First Degree Murder Statutes, e.g. Ca. - Premeditation
UNIT SIX - Unintentional killings - Depraved Heart Murder - Extreme Indifference to the Value of Human Life - Involuntary Manslaughter - Criminally Negligent Homicide
INFANCY DEFENSE FOR CHARLIE IN RE ASSAULT/BATTERY ON HIS SIBLING?
DID THE VICTIM CONSENT?
(Even if infancy weren't a defense, being cute would always work for Charlie.)
CALI LESSON
CALI LESSON
CALI LESSON
CALI LESSON
CALI LESSON
CALI LESSON
CALI LESSON
CALI LESSON
CALI LESSON
HANGING OF THE
CONVULSIVE SEIZURE
How blitized do you have to be to be unable to act purposefully or knowingly? This chap understood the request to produce his identification and the chap below understood the request to help with the
walk- the-line tape.
"You're getting robbed!"
Both the proprietor and the female rescuer intend to batter (assault) the innocent customer. Their mutual mistake about him being a robber seems reasonable under the circumstances. But does the mistake negate their mens rea of battering the customer? If not, does it make sense that self-defense and defense of a third party should be allowed in situations where it reasonably but mistakenly appears to the victim that he is being unlawfully attacked?
How does the mens rea of these two differ from that of the soccer ball player on the beach above who kicks the man's head?
How important is mental state in ascribing criminal liability?
What consequences if this conduct is intended to cause injury, known to cause injury, conscious disregard of a substantial and unjustifiable risk of injury, a gross deviation from the standard of care that a reasonable dancer ought to have exercised or simply an unfortunate accident?
OMISSION
WHAT RESPONSIBILITY DO THE TWO WOULD BE RESCUERS HAVE TO THE HANGER-ON?
WHAT FACTS COULD YOU ADD TO THE SCENARIO THAT WOULD IMPOSE OR LESSEN A LEGAL DUTY TO AID?
Sidebar
"THE BYSTANDER EFFECT"
SHOULD THE PEOPLE WHO PASSED THE LITTLE GIRL BY AND CHOSE NOT TO GET INVOLVED BE LIABLE FOR A CRIME(S) UNDER SECTIONS 38.17 AND/OR 38.171 TPC?
THE FLORIDA CHAIR -
SUPPLANTED NOW BY LETHAL INJECTION.
DISCUSSION OF THE DEATH PENALTY -
CALIFORNIA
IRAN - DEATH FOR BLOGGING - A GOOD POLICY?
WHEN A MOTHER LEAVES AN INFANT IN A CAR AND IT DIES, WHAT HOMICIDE CRIME, IF ANY, WOULD SEEM APPROPRIATE?
WHAT MENS REA?
(Stats - 1)
Saudi cleric waxes eloquent on amputation as an effective punishment for theft/larceny.
Getting stoned has its pros
and cons.
O.J. Simpson sentenced to 15 years for hotel robbery. Is he being punished partly for the double murder in 1994?
The video of the stilted court-ordered apology got much less play than the video of theactual attack. Do these defendants sound repentant in their court-ordered mea culpa YouTube apology? Is the shaming punishment here appropriate for the "fire in the hole" battery?
Prison and Pregnancy
There are roughly 6000 pregnant female prison inmates.
"Intoxication" in the context of a DWI case is not the same as "intoxication" that will negate mens rea. Mr. Turner would appear to be intoxicated for purposes of DWI, but probably not to the extent that his intoxication would negate a common law specific intent.
C-SPAN
Huey P. Newton
discusses the Black Panthers
res ipsa loquitur
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Picking from the four available culpable mental states under the MPC and TPC, how would you describe the shooter's state of mind? From the clip, can you tell what the shooter's motive is?
If you have watched the film American Gangster, you know that the motive (the reason for the killing) is to remove a rival drug dealer.
See the information, cases, and hyperlinks contained in the Crimes & Defenses
Japanese Film
The Suicide Manual
Suicide in the US - more common than criminal homicides.
The Lucifer Effect
The Psychology of Evil
Crime in C/L London
As reported by
Charles Dickens
A Visit to Newgate (1836)
(1851)
Night Walks (1861)
On an Amateur Beat (1869)
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Some people shouldn't be paroled, e.g., Kenneth McDuff.
