Criminal Law - Fall 2017 - Section (b) - Professor Moses
Reading Assignment for Monday, August 14, 2017
9:00 a.m. - 10:30 a.m.
copyright © ray moses 2017

Required Reading:  For the first class of the semester, everyone should read and be prepared to discuss pages 1-24 of the casebook - WBH, Criminal Law - A Contemporary Approach -Second Edition (2014). What punishment,if any, was appropriate for the defendants in Regina v. Dudley & Stephens(1 - photos) and United States v. Bergman and why?

In all future classes, please read at least thirty pages ahead in the casebook from where we stopped in the previous class session. We will have the Labor Day holiday on Monday, September 4. Our last class will be on Monday, November 20. The exam is set for Friday, December 1.

If you are on a budget, I recommend that your either rent your casebook or buy a used copy. Notwithstanding my request that used books be made available for rent or puchase, the on-site bookstore orders only new copies of the casebook. You will need to go online to buy used or rent. A new or used casebook will have no resale value at the end of the semester. Further explanation is at Books on

Optional Reading and Watching Activities for the Stouthearted (Gluttons for Punishment): For clarification, if you are doing some advance reading outside the casebook, you may want to read the following black letter doctrinal explanations in Dressler's very useful hornbook, Understanding Criminal Law - 7th Edition (2015):

  • Overview:  pages 1-9    
  • Sources of Criminal Law: pages 27-31 
  • Punishment Principles: pages 11-25 

You may also find it informative to peruse the evaporated and condensed history of the law of crimes at  Then and Now.

After you've read Dudley & Stephens, you may find it useful to take a look at Vertical Limit video clip below and ponder some the questions in the note material following the clip.

If you'd like to hear how Harvard undergrad students respond to the issues of D&S, take a look Professor Sandel's lecture and discussion in the second video below. For the philosophy of punishment, the next two videos from Yale are enlightening.

The old B-grade film Abandon Ship, below, allows you to more readily visualize some of the open boat issues.

Next, re the photo of the WalMart thief, you might consider the propriety of shaming (public humiliation) as a punishment for criminal wrongdoing.

Finally, consider the punishment given to Richard Reid and whether it was warranted. (You'll know Richard by a different moniker.)

Optional Viewing and Listening

Harvard Professor Sandel's Lecture on Issues Raised by Dudley and Stephens.
The portion of his lecture re D&S can be found beginning at 24:43 of the video.

He discusses moral principles that govern our acts and omissions and explains
(1) the consequentialist theory of moral reasoning that locates morality in the instrinsic consequences of an act and (2) the categorical theory of moral
reasoning that locates morality in certain categorical duties and rights.

The Harvard students who take Sandel's What's the Right Thing to Do course
study the philosophy of several great thinkers, e.g., Bentham, Mill, Kant,
Locke and Rawls. They read Bentham's Principles of Morals and Legislation (1780) (1), Mill's Utilitarianism (1), Kant's Groundwork for the Metaphysics of Morals (1785) (1), Locke's Second Treatise of Government (1690) (1), and Rawls' A Theory of Justice (1971) (1).  

See Professsor Sandel's Guides to this video (1 - Beginner) (2 - Advanced)

If you are intellectually inclined, i.e., you like to ponder great philosopical questions, I suggest that you watch some of Sandel's lectures  on other topics.

Optional Viewing
(for old movie buffs with absolutely no social life)

A clip from an old Tyrone Power film Abandon Ship (1) (Spanish subtitles)
A Lifeboat Situation with Man in the State of Nature
(watch at 1:02:00 for the choice of lives)
This B-movie was loosely adapted from the real lifeboat case of
U.S.A. v. Holmes, 26 F. Cas. 360 (C.C.E.D. Pa. 1842) arising from the
sinking of the ship William Brown in 1841 and described on this Wiki page.
Martin Sheen also appeared in The Last Survivors a1975 TV version of the Holmes case.

The 1944 Alfred Hitchcock movie Lifeboat  from a story by John Steinbeck, involves a
group of passengers trying to survive in a lifeboat after their ship is torpedoed on the
open sea by a U-boat; there's no cannibalism, but several deaths, including homicides,
take place before rescue occurs.

Optional Viewing and Listening

If you went to Yale as an undergrad, you might have been in Professor Gendler's Philosophy and the Science of Human Nature class and heard her lecture on punishment in clip 1 above and the clip 2 below. If not, you might find it informative to listen to these two lectures; doing so will provide you with the opportunity to absorb a much more academic and scholarly approach to
the issue of punishment than is presented in the casebook.

Punishment - First Class - Optional Viewing and Reading
(extras for those who are gluttons for punishment)
copyright © Ray Moses 2015

Sometimes being roped together just means you won't die alone.

Does this vignette from the film Vertical Limit (1) have anything in common with our first case Dudley & Stephens   (D&S)(1)? What would Lord Coledrige (and Kant) tell this young man? Wouldn't it be categorical moral reasoning for Coleridge to tell the son as follows: 
"You and your sister are legally bound to die with your father. Faced with this calamity where it appears that at least one must die, you are to simply do nothing. Your inactivity may result in everyone perishing
rather than just one, but that's the breaks. Keep a stiff upper lip." 

Are there relevant distinctions between D&S and the mountain climbers? Certainly, the crisis in D&S took
longer to develop and arguably might not have reached the point of ultimate danger faced by the climbers.
Also, there's not much question as to who has to be sacrificed in the case of the roped climbers;
casting of lots (a lottery among the endangered) wouldn't be practical here,
as it might have been among the members of the lifeboat in D&S.

If you are roped to a climber who has fallen and neither of you can remedy the situation that places both
of you in peril of imminent death, is it criminal of you to cut the rope tethering you together, knowing
(but not intending) that the dangling climber below you will certainly fall to his death? Unless the law
justifies or excuses a knowing but unintended killing, it is classified as murder. If you want to justify
or excuse what would otherwise be murder in this scenario, how do you do it with the criminal law?

Consider the defense of necessity. (1)  Does the common law case of Dudley & Stephens give us an answer
as to the availability of necessity as a defense at English common law? Was it correct to deprive Dudley and Stephens of a necessity defense to the crime of murder with malice aforethought (intent to kill)?  [Note: Take
it as true that the common law of murder treated an intentional killing, i.e., one where the actor's
conscious objective or desire was to kill another person, as including a knowing killing, i.e., one
where the actor did not want to cause death but was aware that it was practically or
reasonably certain that death of another would result from his conduct.]

Note that UCL 7th says "Necessity may not have been a common law defense in England,
but it is a part of the common law tradition of the United States." p. 289

Do either or both the Model Penal Code and the Texas Penal Code
(See Bushrod 2 and Bullets 2) give us the same answer as the
Dudley & Stephens case?
Examine Section 3.01 MPC (rear of your casebook) and  Section 9.22 TPC.

In the clip that you see above, the son (the potential murder defendant with the pocketknife), who cuts his beloved father free, knowingly killed another human being in order to save himself and his sister. Does it matter that the father orders his son to cut him (the father) loose? Does the consent of the homicide victim (the father here) absolve the killer of criminal responsibility? Does it matter that two people will be saved if one
is sacrificed? Is the situation different if only the son and the father were on the rope,
i.e., one person will be saved if the other is sacrificed?

If you are going to allow the son a necessity defense, explain how the choice-of-evils balances out? Must there be a pressing emergency so that it is immediately necessary to take what would otherwise be criminal action to avoid imminent harm or should the law permit corrective action before the peril of death becomes imminent? Should the son have to wait until the last second to make the cut? Should Captain Dudley wait until
he is very near death before using his pen knife on the cabin boy's throat? What if help arrived
shortly after the son cut the rope or the captain cut the throat?

If the sons cuts the rope and sends his father to certain death, has the son done anything immoral? Is it socially desirable that the father be cut loose in order to save the son and daughter? If the law of criminal homicide chooses not to justify or excuse the son's knowing killing of his father, what punishment
befits the act and the actor? Same question as to the seafarers in the open boat?

Would the Vertical Limit vignette have been available to us if the father had thought to carry his own pocketknife?
No Dudley and Stephens if the cabin boy died of dehydration before the bloodletting, right?

The Morality of Cannibalism - D&S also implicates the practice of cannibalism in dire circumstances. Do you recall the movie Alive in which there was no homicide, i.e., killing of one person by another, but where
cannibalism was necessary for a group of young Uruguayan rugby players stranded in 1972 in the
high Andes when their plane crashed?   (1) (2 - Documentary) Was it moral for the plane wreck
survivors to consume their dead comrades? Here's 2008 case of cannibalism at sea
by Haitian migrants. (1) In bygone years the practice was not highly unusual among
castaways. (1 - 1889) (2 - 1878 killing in self-defense, butchering, parboiling,
frying, and lunch)

Monty Python's sketch suggests facetiously that all aboard the lifeboat will willingly give up their lives for the group's survival. Even if this were true, how is the choice to be made?  Suppose that among the
candidates aboard the lifeboat are an escaped, convicted murderer who knows how to navigate
a boat at sea, a thin Mother Teresa, a bulked-up Hulk Hogan, a terminally-ill invalid, and a cute
15 lbs. 4-month-old infant.

If all of this sounds irrelevant to a world where we don't have lifeboat cases, ask yourself if you
have heard of any homicide cases that might present the choice-of-evils (necessity) issue. Suppose you are a doctor in a hospital that is isolated by crippling flood waters from a hurricane. The conditions are atrocious.
Would it be conceivable to administer lethal doses of a painkiller such as morphine to lessen the pain
of patients whose condition was in extremis? Read this report involving a doctor in a New Orleans hospital
during the liquid aftermath of Hurricane Katrina. Was she a heroine? Have you read Five Days at Memorial: Life and Death in a Storm-Ravaged Hospital.

Finally, consider the circumstance of the 33 Chilean miners who in 2010 were trapped underground for almost ten weeks, having been located by surface searchers after 17 days of total isolation. The miners had just eaten their last portions of emergency food supplies when the surface borers broke through the shaft. Would you have expected that the miners  would create their own democratic society during those 17 days or would you
have expected chaos to develop? How far should such persons be permitted to go in the effort to survive?
Are there significant parallels with D&S who went for a considerably longer period without food or water ?

Shaming as a Form of Punishment

The Waltons are the richest family on the face of the planet.
Their wealth was inherited, not necessarily earned by their hard labor.
If a penny-ante shoplifter has to steal from someone, maybe ...
(1 - on the morality issue, check out Walmart: The High Cost of Low Prices)
(2 - the Walmart CEO makes 11k per hour)

Anyway, this forlorn looking chap is apparently being punished by
a judge who likes the concept of shaming. (1) Is such punishment reminiscent of
a time in our history when pillories and stocks in the town square were used
as instruments of punishment? What purpose(s) other than humiliation
would shaming a convicted defendant serve? How did I get this photo? If everyone has a camera on their phone, will photos like this go viral on
Facebook, Twitter, YouTube? If so, what are the implications?

Would this be apropos for the defendant in our second case, Dr. Bergman,
e.g., having him stand outside a local hospital with a sign saying,
"I stole from Medicaid" or "Greed for filthy lucre caused me,
an ordained rabbi and wealthy doctor of divinity,
to cheat, defraud and steal Medicaid program
funds that were supposed to provide the very
poor with basic health care"?

See United States v. Gementera, 379 F.3d 596 (9th Cir. 2004) upholding a sentence that included the requirement that  a convicted mail thief had
to stand outside a post office for eight hours with a signboard saying,
"I stole mail. This is my punishment."

See Note, Shame, Stigma, and Crime: Evaluating the Efficacy of Shaming Sanctions in Criminal Law, 116 Harv. L. Rev. 2186 (2003).

Optional Reading on Punishment

Does the name Richard Reid strike a bell in your memory? If not, what about the "Shoe Bomber"? Most of us know enough about Reid to know what he tried to do - set off an explosive on an airliner.

If you have time, read this account of Reid's sentencing hearing before federal Judge William Young. One might say that Young threw the book at Reid.
Was the level of punishment warranted? Why?

[Note: It's worth noting that we never know where a terrorist will originate. Reid was an Englishman. The so-called "Underwear Bomber" was Nigerian. The "Oklahoma City Bombers," Tim McVeigh and Terry Nichols, were homegrown. Here are some lists: FBI's 10 Most Wanted Terrorists, Wiki's List of Designated Terrorist Organizations, U.S. Department of State List of Foreign Terrorist Organizations,Treasury Department List of Designated Nationals and Blocked Persons List.]

Some of you may remember a white-collar criminal named Bernard L. Madoff who defrauded investors of over $50,000,000,000.00. Madoff, who pled guilty to multiple charges, was given a combined sentence of 150 years on June 29, 2009. Here's the transcript of the sentence in which the sentencing judge gives the reasons for his decision to assess a heavy sentence. You might ask yourself whether 150 years for Madoff's massive financial crime was correct. Is it right that he receive a more severe sentence than some rapists and murderers? What explains the radical difference in the sentences for Madoff and Rabbi Bergman (the second case in our casebook)?

Be aware that the rights of crime victims are recognized in most states, see Chapter 56 of the Texas Code of Criminal Procedure - Rights of Crime Victims. In the federal system, see the Crime Victims's Rights Act, 18 USC Section 3771, giving the victim the right to be heard at any district court proceeding resulting in the defendant's release, parole, plea or sentencing and to be kept apprised of case developments by the prosecuting authority.   



Most American courts utilize "bifurcated trials" in which the guilt phase precedes the punishment phase. This is true in Texas. See Art. 37.07 C.C.P.

In cases where there are multiple charges againt a defendant, courts are sometimes given discretion to run the sentences concurrently (CC) or consecutively (stacked). See Sections 3.03 and 3.04 TPC.