Dr Daric Erminote

Mar 15, 2021

61 min read

Crime Law and Behaviour in Criminal Punishments (Immersive Read)

The text organize the criminal law into a traditional scheme that is widely accepted and can embrace, with minor adjustments, the criminal law of any state and/ or the federal government. The logic of the arrangement is first to cover the general part of the criminal law, namely principles and doctrines common to all or most crimes, and then the special part of criminal law, namely the application of the general principles to the elements of specific crimes. The general part of criminal law: the nature, origins, structure, sources, and purposes of criminal law and criminal punishment; the constitutional limits on the criminal law; the general principles of criminal liability; the defenses of justification and excuse; parties to crime and vicarious liability; and incomplete crimes (attempt, conspiracy, and solicitation). The special part of the criminal law: the major crimes against persons; crimes against homes and property; crimes against public order and morals; and crimes against the state. Criminal Law has always followed the three-step analysis of criminal liability (criminal conduct, justification, and excuse). Criminal Law brings this analysis into sharp focus in two ways. First, the chapter sequence: The general principles of criminal conduct (criminal act, criminal intent, concurrence, and causation). The defenses of justification, the second step in the analysis of criminal liability. The defenses of excuse, the third step. So, the chapter sequence mirrors precisely the three-step analysis of criminal liability. Criminal Law also sharpens the focus on the three-step analysis through the Elements of Crime art. The design is consistent throughout the chapters involving the special part of criminal law. All three of these steps are included in each “Elements of Crime” graphic, but elements that are not required in certain crimes — like crimes that don’t require a “bad” result — are grayed out. The new figures go right to the core of the three-step analysis of criminal liability, making it easier for students to master the essence of criminal law: applying general principles to specific individual crimes.

elcome to Miami, you’re under arrest!” This is what a Miami, Florida, police officer, who was a student in my criminal justice class, told me that billboards at the city limits of this South Beach suburb should read. “Why,” I asked? “Because everything in Miami is a crime,” he laughingly replied. Although exaggerated, the officer spoke the truth. Murders, rapes, robberies, and other “street crimes” have always filled the news and stoked our fears. “White-collar crimes” have also received attention in these early years of the twenty-first century. And of course, since 9/11, crimes committed by terrorists have also attracted considerable attention. They’ll also receive most of our attention in this book — when we turn to the “crimes against public order and morals,” which in numbers dwarf all the others combined. So, from now, with some exceptions, everything you’ll read applies to the roughly three million violent and property crimes, not the 17.7 million misdemeanors. Let’s look briefly at the American Law Institute (ALI) Model Penal Code (MPC) definition of behavior that deserves punishment. It’s the framework we’ll use to guide our analysis of criminal liability (namely behavior that deserves punishment). Criminal liability falls on “conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests” (1985, § 1.02(1)(a)). Here’s a breakdown of the words and phrases in the definition.

•Conduct that • Unjustifi ably and inexcusably • Infl icts or threatens substantial harm • To individual or public interests • The importance of these few words and phrases can’t be overstated. They are, in fact, the building blocks of our whole system of criminal law and punishment. We spend the rest of the book exploring and applying them to a wide range of human behavior in an equally wide range of circumstances. But, first, let’s examine some propositions that will help prepare you to follow and understand the later chapters. Let’s begin by looking at the difference between criminal wrongs and other legal wrongs that aren’t criminal.

Crimes and Noncriminal Wrongs

The opening case summaries demonstrate that criminal law is only one kind of social control, one form of responsibility for deviating from social norms. So in criminal law, the basic question, to be exact, boils down to “Who’s criminally responsible for what crime?” We won’t often discuss the noncriminal kinds of responsibility in this book. But you should keep them in mind anyway, because in the real world criminal liability is the exceptional form of social control. The norm is the other four categories mentioned in the beginning of the chapter. And they should be, because the criminal liability response is the harshest and most expensive response. In this section, we’ll concentrate on the noncriminal wrongs called torts, private wrongs for which you can sue the party who wronged you and recover money.

Crimes and torts represent two different ways our legal system responds to social and individual harm. Before we look at their differences, let’s look at how they’re similar. First, both are sets of rules telling us what we can’t do (“Don’t steal”) and what we must do (“Pay your taxes”). Second, the rules apply to everybody in the community, and they speak on behalf of everybody, with the power and prestige of the whole community behind them. Third, the power of the law backs up the enforcement of the rules (Hart 1958, 403). How are they different? Some believe that crimes injure the whole community, whereas torts harm only individuals. But that’s not really true.

Almost every crime is also a tort. Many crimes and torts even have the same name (there’s a crime and a tort called “assault”). Other crimes are torts even though they don’t have the same names; for example, the crime of murder is also the tort of wrongful death. In fact, the same killing sometimes is tried as murder and later as a civil wrongful death suit. One famous example is in the legal actions against the great football player O. J. Simpson. He was acquitted in the murder of his ex-wife and her friend in a criminal case but then lost in a tort case for their wrongful deaths. Also, torts don’t just harm other individuals; they can also harm the whole community. For example, breaches of contract don’t just hurt the parties to the contract. Much of what keeps daily life running depends on people keeping their word when they agree to buy, sell, perform services, and so on. Are crimes just torts with different names? No. One difference is that criminal prosecutions are brought by the government against individuals; that’s why criminal cases always have titles like “U.S. v. Rasul,” “People v. Menendez,” “State v. Erickson,” or “Commonwealth v. Wong.” (The first name in the case title is what that government entity calls itself, and the second name, the defendant’s, is the individual being prosecuted.) Nongovernment parties bring tort actions against other parties who may or may not be governments. A second difference is that injured plaintiffs (those who sue for wrongs in tort cases) get money (called damages) for the injuries they suffer. These differences are important, but not the most important difference between torts and crimes. The most important is the conviction itself. The conviction “is the expression of the community’s hatred, fear, or contempt for the convict . . .” (Hart 1958). Professor Henry M. Hart sums up the difference this way:
[Crime] . . . is not simply anything which a legislature chooses to call a “crime.” It is not simply antisocial conduct which public officers are given a responsibility to suppress. It is not simply any conduct to which the legislature chooses to attach a criminal penalty. It is conduct which . . . will incur a formal and solemn pronouncement of the moral condemnation of the community. (405)
But it’s important for you to understand that words of condemnation by themselves don’t make crimes different from torts. Not at all. When the legislature defines a crime, it’s issuing a threat — “Don’t steal, or else . . . ,” “File your taxes, or else. . . .” The “or else” is the threat of punishment, a threat that will be carried out against anyone who commits a crime. In fact, so intimately connected are condemnation and criminal punishment that some of the most distinguished criminal law scholars say that punishment has two indispensable components, condemnation and “hard treatment.” According to Andrew von Hirsch, honorary professor of Penal Theory and Penal Law at the University of Cambridge, England, and prolific writer on the subject, and his distinguished colleague, Andrew Ashworth, the Vinerian Professor of Law at Oxford University: Punishment conveys censure, but it does not consist solely of it. The censure in punishment is expressed through the imposition of a deprivation (“hard treatment”) on the offender. (Von Hirsch and Ashworth 2005, 21) If the threat isn’t carried out when a crime is committed, condemnation is meaningless, or worse — it sends a message that the victim’s suffering is worthless. Punishment has to back up the condemnation. According to another respected authority on this point, Professor Dan Kahan (1996): When society deliberately forgoes answering the wrongdoer through punishment, it risks being perceived as endorsing his valuations; hence the complaint that unduly lenient punishment reveals that the victim is worthless in the eyes of the law. (598) The case of Chaney v. State (1970) makes clear the need for punishment to make condemnation meaningful. Two young soldiers in the U.S. Army picked up a young woman in Anchorage, Alaska, brutally beat and raped her four times, and took her money. After a trial jury found one of them guilty of rape and robbery, the judge sentenced the defendant to two one-year prison sentences, to be served concurrently, and he suspended sentence for robbing her. When he sentenced Chaney, the judge recommended that the defendant be confined in a minimum-security prison. He further remarked that he was “sorry that military regulations would not permit keeping Chaney in the service if he wanted to stay because it seems to me that is a better setup for everybody concerned than putting him in the penitentiary.” At a later point in his remarks, the trial judge seemed to invite the parole board to, or even recommend that it, release him: I have sentenced you to a minimum on all 3 counts here but there will be no problem as far as I’m concerned for you to be paroled at the first day the Parole Board says that you’re eligible for parole. . . . If the Parole Board should decide 10 days from now that you’re eligible for parole and parole you, it’s entirely satisfactory with the court. (445) In a review of the sentence authorized under Alaska law, the Alaska Supreme Court ruled that the trial judge’s “sentence was too lenient considering the circumstances surrounding the commission of these crimes.” Forcible rape and robbery rank among the most serious crimes. Considering the violent circumstances surrounding the commission of these dangerous crimes, we have difficulty in understanding why one-year concurrent sentences were thought appropriate. Review of the sentencing proceedings leads to the impression that the trial judge was apologetic in regard to his decision to impose a sanction of incarceration. Much was made of Chaney’s fine military record and his potential eligibility for early parole. Seemingly all but forgotten is the victim of appellee’s rapes and robbery. [A military spokesman at the time of sentencing noted that] what happened “is very common and happens many times each night in Anchorage. Needless to say, Donald Chaney was the unlucky ‘G.I.’ that picked a young lady who told.” (445–46) We think that the sentence imposed falls short of effectuating the goal of community condemnation, or the reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves. In short, knowledge of the calculated circumstances involved in the commission of these felonies and the sentence imposed could lead to the conclusion that forcible rape and robbery are not reflective of serious antisocial conduct. Thus, respect for society’s condemnation of forcible rape and robbery is eroded and reaffirmation of these societal norms negated. . . . A sentence of imprisonment for a substantially longer period of imprisonment . . . would reaffirm society’s condemnation of forcible rape and robbery. (447)
We’ll come back to the subject of punishment later in this chapter, where we’ll discuss the purposes of punishment more fully, and again, where we’ll discuss the constitutional ban on “cruel and unusual punishment.” But here it’s important to emphasize the intimate connection (often-overlooked) between punishment and the meaning of crime itself. Nevertheless, even on this important point of expression of condemnation backed up by punishment, the line between torts and crime can get blurred. In tort cases involving violence and other especially “wicked” circumstances, plaintiffs can recover not only compensatory damages for their actual injuries but also substantial punitive damages to make an example of defendants and to “punish” them for their “evil behavior” (Black 1983, 204).

“Border Patrol” Video Game: What, if Anything, Should Be Done with It?

There’s a video game making its way around the Internet, and many who have come across it say it crosses a line. “Border Patrol” is a Flash-based game that lets players shoot at Mexican immigrants as they try to cross the border into the United States. “There’s one simple rule,” the game’s opening screen states, “keep them out . . . at any cost!” “Border Patrol” upsets many immigrants’ rights groups, as well as others. But the game is nothing new, as hate groups and those just looking to ruffl e some feathers have long used Flash-based games to spread messages of hate. In “Border Patrol,” players are told to target one of three immigrant groups portrayed in a negative, stereotypical way as the fi gures rush past a sign that reads “Welcome to the United States.” The immigrants are caricatured as bandoleer-wearing “Mexican nationalists,” tattoo-touting “drug smugglers” and pregnant “breeders” who sprint with children in tow. Now that you’ve got some idea of what criminal wrong means and how it’s different from private wrongs, let’s go inside criminal law to see how the law classifies crimes so we can make sense of the enormous range of behavior it covers.

Classifying Crimes

There are various ways to classify crimes, most of them with ancient roots. One classifies crimes into crimes of moral turpitude and those that are not. The moral turpitude crimes consist of criminal behavior that needs no law to tell us it’s criminal because it’s inherently wrong or evil, like murder and rape. Crimes without moral turpitude consist of behavior that’s criminal only because a statute says it is, such as parking in a no parking zone and most other traffic violations. Why classify crimes into moral turpitude and nonmoral turpitude? Some examples are: excluding or deporting aliens; disbarring attorneys; revoking doctor’s licenses; and impeaching witnesses (LaFave 2003a, 36–38). The most widely used scheme for classifying crimes is according to the kind and quantity of punishment. Felonies are crimes punishable by death or confinement in the state’s prison for one year to life without parole; misdemeanors are punishable by fine and/or confinement in the local jail for up to one year. Notice the word “punishable”; the classification depends on the possible punishment, not the actual punishment. For example, Viki Rhodes pled guilty to “Driving under the Influence of Intoxicants, fourth offense,” a felony. The trial court sentenced her to 120 days of home confinement. When she later argued she was a misdemeanant because of the home confinement sentence, the appeals court ruled that “a person whose felony sentence is reduced does not become a misdemeanant by virtue of the reduction but remains a felon” (Commonwealth v. Rhodes 1996, 532). Why should the label “felony” or “misdemeanor” matter? One reason is the difference between procedure for felonies and misdemeanors. For example, felony defendants have to be in court for their trials; misdemeanor defendants don’t. Also, prior felony convictions make offenders eligible for longer sentences. Another reason is that the legal consequences of felony convictions last after punishment. In many states, former felons can’t vote, can’t serve in public office, can’t be attorneys, and felony conviction can be a ground for divorce. Now, let’s turn from the classifications of crimes to the two divisions of criminal law: the general and special parts.

The General and Special Parts of Criminal Law

Criminal law consists of two parts: a general part and a special part. The general part of criminal law consists of principles that apply to more than one crime. Most state criminal codes today include a general part. The special part of criminal law defines specific crimes and arranges them into groups according to subject matter. All states include the definitions of at least some specific crimes, and most group them according to subject matter. The special part of criminal law is not just a classification scheme; it’s also part of the larger organizational structure of the whole criminal law and the one followed in this book. So we’ll discuss the classification scheme in the context of the general and special parts of the criminal law.

The General Part of Criminal Law

The general principles are broad propositions that apply to more than one crime. Some general principles apply to all crimes (for example, all crimes have to include a voluntary act); other principles (for example, criminal intent) apply to all felonies; still others apply only to some crimes (for example, the use of force is justified to prevent murder, manslaughter, assault, and battery). In addition to the general principles of criminal law in the general part of criminal law, there are also two kinds of what we call “offenses of general applicability” (Dubber 2002, 142). The first is complicity, crimes that make one person criminally liable for someone else’s conduct. There’s no general crime of complicity; instead, there are the specific crimes of accomplice to murder; accomplice to robbery; or accomplice to any other crime for that matter. Similarly, other crimes of general applicability are the crimes of attempt, conspiracy, and solicitation. Like complicity, there are no general crimes of attempt, conspiracy, and solicitation, but there are the specific crimes of attempting, conspiring, and soliciting to commit specific crimes — for example, attempted murder, conspiring to murder, and soliciting to murder. Finally, the general part of criminal law includes the principles of justification (self-defense) and excuse (insanity), the principles that govern most defenses to criminal liability.

The Special Part of Criminal Law

The special part of criminal law defines specific crimes, according to the principles set out in the general part. The definitions of crimes are divided into four groups: crimes against persons (such as murder and rape, discussed; crimes against property (stealing and trespass); crimes against public order and morals (aggressive panhandling and prostitution); and crimes against the state (domestic and foreign terror). The definitions of specific crimes consist of the elements prosecutors have to prove beyond a reasonable doubt to convict defendants. From the standpoint of understanding how the general principles relate to specific crimes, every definition of a specific crime is an application of one or more general principles. To show you how this works, let’s look at an example from the Alabama criminal code. One section of the general part of the code reads, “A person is criminally liable for an offense [only] if it is committed by his own behavior” (Alabama Criminal Code 1975, ß 13A-2–20). This general principle of criminal liability (liability is the technical legal term for responsibility) is required in the definition of all crimes in Alabama. According to the special part of the Alabama Criminal Code, “Offenses Involving Damage to and Intrusion upon Property,” the crime of first-degree criminal trespass is defined as “A person is guilty of criminal trespass in the first degree if he . . . enters or remains unlawfully in a dwelling” (ß 13A-7–4). So the general principle of requiring behavior is satisfied by the acts of either entering or remaining. Now, let’s turn from the subject of classifying crimes to the sources of criminal law and where you’re most likely to find them.

The Sources of Criminal Law

Most criminal law is found in state criminal codes created by elected representatives in state legislatures and municipal codes created by city and town councils elected by the people. There’s also a substantial body of criminal law in the U.S. criminal code created by Congress. Sometimes, these elected bodies invite administrative agencies, whose members aren’t elected by the people, to participate in creating criminal law. Legislatures weren’t always the main source of criminal law making. Judges’ court opinions were the original source of criminal law, and it remained that way for several centuries. By the 1600s, judges had created and defined the only crimes known to our law. Called common law crimes, they included everything from disturbing the peace to murder. Let’s look first at the common law crimes created by judges’ opinions and then at the legislated criminal codes, including state and municipal codes, the Model Penal Code (MPC). Then, we’ll look briefly at criminal law making by administrative agencies.

Common Law Crimes

Criminal codes didn’t spring full-grown from legislatures. They evolved from a long history of ancient offenses called “common law crimes.” These crimes were created before legislatures existed and when social order depended on obedience to unwritten rules (the lex non scripta) based on community customs and traditions. These traditions were passed on from generation to generation and modified from time to time to meet changed conditions. Eventually, they were incorporated into court decisions. The common law felonies still have familiar names and have maintained similar meanings (murder, manslaughter, burglary, arson, robbery, stealing, rape, and sodomy). The common law misdemeanors do, too (assault, battery, false imprisonment, libel, perjury, corrupting morals, and disturbing the peace) (LaFave 2003a, 75). Exactly how the common law began is a mystery, but like the traditions it incorporated, it grew and changed to meet new conditions. At first, its growth depended mainly on judicial decisions. As legislatures became more established, they added crimes to the common law. They did so for a number of reasons: to clarify existing common law; to fill in blanks left by the common law; and to adjust the common law to new conditions. Judicial decisions interpreting the statutes became part of the growing body of precedent making up the common law. Let’s look further at common law crimes at both the state and federal levels.

State Common Law Crimes

The English colonists brought this common law with them to the New World and incorporated the common law crimes into their legal systems. Following the American Revolution, the 13 original states adopted the common law. Almost every state created after that enacted “reception statutes” that adopted the English common law. For example, the Florida reception statute reads: “The Common Law of England in relation to crimes shall be of full force in this state where there is no existing provision by statute on the subject” (West’s Florida Statutes Annotated 2005, Title XLVI, § 775.01). Most states have shed the common law crimes. But the common law is far from dead. Several states, including Florida, still recognize the common law of crimes. Even in code states (states that have abolished the common law), the codes frequently use the names of the common law crimes without defining them. So to decide cases, the courts have to go to the common law definitions and interpretations of the crimes against persons, property, and public order and morals; the common law of parties to crime and attempt, conspiracy, and solicitation; and the common law defenses, such as self-defense and insanity. California, a code jurisdiction, includes all of the common law felonies in its criminal code (West’s California Penal Code 1988, § 187(a)). The California Supreme Court relied on the common law to determine the meaning of its murder statute in Keeler v. Superior Court (1970). Robert Keeler’s wife Teresa was pregnant with another man’s child. Robert kicked the pregnant Teresa in the stomach, causing her to abort the fetus. The California court had to decide whether fetuses were included in the murder statute. To do this, the court turned to the sixteenth-century common law, which defined a human being as “born alive.” This excluded Teresa’s fetus from the reach of the murder statute. (Keeler v. Superior Court 1970, discussed in the Chapter 9 “Beginning of Life” section).

Federal Common Law Crimes

In U.S. v. Hudson and Goodwin (1812), the U.S. Supreme Court said there are no federal common law crimes. During the War of 1812, Hudson and Goodwin published the lie that President Madison and Congress had secretly voted to give $2 million to Napoleon. They were indicted for criminal libel. But there was a catch; there was no federal criminal libel statute. The Court ruled that without a statute, libel can’t be a federal crime. Why? According to the Court: The courts of [the U.S.] are [not] vested with jurisdiction over any particular act done by an individual in supposed violation of the peace and dignity of the sovereign power. The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence. Certain implied powers must necessarily result to our courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among those powers. (34)

The rule of U.S. v. Hudson and Goodwin seems perfectly clear: there’s no federal criminal common law. But, like many other rules you’ll learn in your study of criminal law, the reality is more complicated. It’s more like: There is no federal criminal common law. But there is . . . The shibboleth that there is no federal criminal common law — that Congress, not the courts, creates crimes — is simply wrong. There are federal common law crimes. (Rosenberg 2002, 202)
Here’s what Associate U.S. Supreme Court Justice Stevens had to say about federal criminal common law making: Statutes like the Sherman Act, the civil rights legislation, and the mail fraud statute were written in broad general language on the understanding that the courts would have wide latitude in construing them to achieve the remedial purposes that Congress had identified. The wide open spaces in statutes such as these are most appropriately interpreted as implicit delegations of authority to the courts to fill in the gaps in the common law tradition of case-by-case adjudication. (McNally v. U.S. 1987)
According to Professor Dan Kahan (1994), Congress has accepted the prominent role Justice Stevens ascribes to the federal courts in developing a “federal common law” in noncriminal subjects. Moreover, Kahan contends that Congress actually prefers “lawmaking collaboration” to a “lawmaking monopoly” (369). Judicial common criminal lawmaking can be a good thing when it punishes conduct “located not on the border but deep within the interior of what is socially undesirable” (400).

State Criminal Codes

From time to time in U.S. history, reformers have called for the abolition of the common law crimes and their replacement with criminal codes created and defined by elected legislatures. The first criminal codes appeared in 1648, the work of the New England Puritans. The Laws and Liberties of Massachusetts codified (put into writing) the colonies’ criminal law, defining crimes and spelling out punishments. John Winthrop, the author of the code, stated the case for a code this way: “So soon as God had set up political government among his people Israel he gave them a body of laws for judgment in civil and criminal causes. . . . For a commonwealth without laws is like a ship without rigging and steerage” (Farrand 1929, A2). Some of the codified offenses sound odd today (witchcraft, cursing parents, blasphemy, and idolatry), but others — for example, rape — don’t: If any man shall ravish any maid or single woman, committing carnal copulation with her by force, against her own will, that is above ten years of age he shall be punished either with death or some other grievous punishment. (5)
Another familiar codified offense was murder: If any man shall commit any wilful murder, which is manslaughter, committed upon premeditate malice, hatred, or cruelty not in a man’s necessary and just defense, nor by mere casualty against his will, he shall be put to death. (6)
Hostility to English institutions after the American Revolution spawned another call by reformers for written legislative codes to replace the English common law. The eighteenth-century Enlightenment, with its emphasis on reason and natural law, inspired reformers to put aside the piecemeal “irrational” common law scattered throughout judicial decisions and to replace it with criminal codes based on a natural law of crimes. Despite anti-British feelings, reformers still embraced Blackstone’s Commentaries (1769) and hoped to transform his complete and orderly outline of criminal law into criminal codes. Reformers contended judge-made law was not just disorderly and incomplete; it was antidemocratic. They believed legislatures representing the popular will should make laws, not aloof judges out of touch with public opinion. Thomas Jefferson proposed such a penal code for Virginia (Bond 1950). The proposed code never passed the Virginia legislature, not because it codified the law but because it recommended too many drastic reductions in criminal punishments (Preyer 1983, 53–85). There was also a strong codification movement during the nineteenth century. Of the many, but two codes stand out. The first, the most ambitious, and least successful, was Edward Livingston’s draft code for Louisiana, completed in 1826. Livingston’s goal was to rationalize into one integrated system: criminal law, criminal procedure, criminal evidence, and punishment. Livingston’s draft never became law. The second, David Dudley Field’s code, was less ambitious but more successful. Field was a successful New York lawyer who wanted to make criminal law more accessible, particularly to lawyers. According to Professors Paul Robinson and Markus Dubber (2004): Field’s codes were designed to simplify legal practice by sparing attorneys the tedium of having to sift through an ever rising mountain of common law. As a result, Field was more concerned with streamlining than he was with systematizing or even reforming New York penal law. (3)
Field’s New York Penal Code was adopted in 1881 and remained in effect until 1967, when New York adopted most of the Model Penal Code (described later in “The Model Penal Code (MPC)” section). The codification movement gathered renewed strength after the American Law Institute (ALI) decided to “tackle criminal law and procedure” (Dubber 2002, 8). ALI was founded by a group of distinguished jurists to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work. (8)
After its first look at criminal law and procedure in the United States, “It was so appalled by what it saw that it decided that . . . what was needed was a fresh start in the form of model codes (8).

The Model Penal Code (MPC)

The Great Depression and World War II stalled the development of a model penal code. But after World War II, led by reform-minded judges, lawyers, and professors, ALI was committed to replacing the common law. From the earliest of 13 drafts written during the 1950s to the final version in 1962, in the Model Penal Code (MPC), ALI (1985) made good on its commitment to draft a code that abolished common law crimes. Section 1.05, the first of its core provisions, reads: “No conduct constitutes an offense unless it is a crime or violation under this Code or another statute of this State” ([1], § 1.01 to 2.13).

After its adoption in 1962, more than 40 states changed their criminal codes. None adopted the MPC completely; but criminal law in all states, not just states that rewrote their codes, felt its influence (Dubber 2002, 6). More than two thousand opinions from every state, the District of Columbia, and the federal courts have cited the MPC (7). Many of the case excerpts are from those two thousand. Moreover, this book follows the general structure and analysis of the MPC, because if you understand the MPC’s structure and analysis, you’ll understand criminal law itself. Although you’ll encounter many variations of the MPC throughout the book, “If there is such a thing as a common denominator in American criminal law, it’s the Model Penal Code” (Dubber 2002, 5). So let’s look at the structure and analysis of the MPC. The structure of the MPC follows closely the description of “The General and Special Parts of Criminal Law” section, so we won’t repeat it here. Instead, we’ll focus on the analysis of criminal liability, namely how to analyze statutes and cases to answer the question posed at the beginning of the chapter, “What behavior deserves criminal punishment?” and the MPC’s definition of criminal liability: “conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests” (ALI 1985, MPC § 1.02(1)(a)). Now let’s break down this definition into its three elements, which we can state as three main and two subsidiary questions: 1. Is the conduct a crime? (Chapters 3–4, 5–6, 9–13) a. Does the conduct inflict or threaten?
b. Does the conduct inflict or threaten substantial harm to individual or public interests? 2. If the conduct is a crime, is it wrong? Or, under special circumstances, was the conduct justified, as in self-defense? In other words, the actor admits responsibility for the conduct but proves that under the special circumstances the conduct was right. 3. If the conduct was unjustified, should we blame the actor for it? Or, under special circumstances, such as insanity, was the actor not responsible? In other words, the actors admit their conduct was wrong, but they maintain that under the special circumstances, they weren’t responsible for their conduct.
There you have, in a nutshell, the elements of criminal liability in states and the federal government that we’ll elaborate on and apply to the definitions of individual crimes throughout the book.

Municipal Ordinances

City, town, and village governments enjoy broad powers to create criminal laws, a power local governments are enthusiastically using in today’s atmosphere of “zero tolerance” for drugs, violence, public disorder, and other “quality of life” offenses that violate community standards of good manners in public. Municipalities have a “chorus of advocates” among criminal law reformers who’ve helped cities write a “new generation” of their old vagrancy and loitering ordinances that “cleanse” them of prior objections that they’re unconstitutional and discriminatory (Logan 2001, 1418). Municipal criminal law making isn’t new; neither is the enthusiasm for it. In his book The People’s Welfare (1996), the historian William Novak convincingly documents the “powerful government tradition devoted in theory and practice to the vision of a well-regulated society” from 1787 to 1877: At the heart of the well-regulated society was a plethora of bylaws, ordinances, statutes, and common law restrictions regulating nearly every aspect of early American economy and society. . . . These laws — the work of mayors, common councils, state legislators, town and county officers, and powerful state and local judges . . . taken together . . . demonstrate the pervasiveness of regulation in early American versions of the good society: regulations for public safety and security; . . . the policing of public space . . . ; all-important restraints on public morals (establishing the social and cultural conditions of public order). (1–2)
Here’s a sample of current ordinances collected by Professor Wayne Logan (2001): Pick-pocketing; disturbing the peace; shoplifting; urinating in public; disorderly conduct; disorderly assembly; unlawful restraint; obstruction of public space; harassment over the telephone; resisting arrest; obscenity; nude dancing; lewdness, public indecency, and indecent exposure; prostitution, pimping, or the operation of “bawdy” houses; gambling; graffiti and the materials associated with its inscription; littering; aggressive begging and panhandling; vandalism; trespass; automobile “cruising”; animal control nuisances; excessive noise; sale or possession of drug paraphernalia; simple drug possession; possession of weapons other than firearms; possession of basic firearms and assault-style firearms; discharge of firearms; sleeping, lying, or camping in public places; driving under the influence of drugs or alcohol; carrying an open container of alcohol; underage drinking; and public drinking and intoxication; vagrancy and loitering; curfews for minors; criminal assault and battery. (1426–28)
Municipal ordinances often duplicate and overlap state criminal code provisions. When they conflict, state criminal code provisions are supposed to trump municipal ordinances. A number of technical rules control whether they’re in conflict, and we don’t need to get into the details of these rules, but their gist is that unless state criminal codes make it very clear they’re preempting local ordinances, local ordinances remain in effect (Chicago v. Roman 1998). In Chicago v. Roman, Edwin Roman attacked 60-year-old Anthony Pupius. He was convicted of the Chicago municipal offense of assault against the elderly and was sentenced to ten days of community service and one year of probation. However, the ordinance contained a mandatory minimum sentence of at least 90 days of incarceration. The city appealed, claiming the sentence violated the mandatory minimum required by the ordinance. The Illinois Supreme Court overruled the trial court’s decision. According to the Court, the Illinois legislature can restrict Chicago’s power to create crimes, but it has to pass a law specifically spelling out the limit. Because the legislature hadn’t passed a law preempting the penalty for assaulting the elderly, Chicago’s mandatory minimum had to stand. The long list of ordinances Professor Logan found illustrates the broad power of municipalities to create local crimes. But, as the example of Chicago v. Roman indicates, the power of municipalities goes further than creating crimes; it includes the power to determine the punishment, too. They also have the power to enact forfeiture laws. Under New York City’s alcohol and other drug-impaired driver’s law, thousands of impaired drivers have forfeited their vehicles (Fries 2001, B2). Another example: an Oakland, California, ordinance authorizes forfeiture of vehicles involved in “solicitation of prostitution or acquisition of controlled substances.” The ordinance was passed after residents complained about individuals driving through their neighborhoods looking to buy drugs or hire prostitutes (Horton v. City of Oakland 2000, 372). Don’t get the idea from what you’ve just read that municipalities have unlimited powers to create crimes and prescribe punishments. They don’t. We’ve already noted two limits — constitutional limits (which we’ll discuss further) and the power of states to preempt municipal criminal law making and punishment. Municipalities also can’t create felonies, and they can’t prescribe punishments greater than one year in jail.

Administrative Agency Crimes

Both federal and state legislatures frequently grant administrative agencies the authority to make rules. One example is familiar to anyone who has to file a tax return. The U.S. Internal Revenue Service income tax regulations are based on the rule-making authority that Congress delegates to the IRS. Another example, this one from the state level: state legislatures commonly authorize the state highway patrol agencies to make rules regarding vehicle safety inspections. We call violations of these federal and state agency rules “administrative crimes”; they’re a rapidly growing source of criminal law.

Criminal Law in a Federal System

Until now, we’ve referred to criminal law in the singular. That’s inaccurate, and you’ll see this inaccuracy repeated often in the rest of the book because it’s convenient. But let’s clear up the inaccuracy. In our federal system, there are 52 criminal codes, one for each of the 50 states, one for the District of Columbia, and one for the U.S. criminal code. The U.S. government’s power is limited to crimes specifically related to national interests, such as crimes committed on military bases and other national property; crimes against federal officers; and crimes that are difficult for one state to prosecute — for example, drug, weapons, organized and corporate crime, and crimes involving domestic and international terrorism. The rest of criminal law, which is most of it, is left to the state codes. These are the crimes against persons, property, and public order and morals in the special part of the criminal law. So we have 52 criminal codes, each defining specific crimes and establishing general principles for the territory and people within it. And they don’t, in practice, define specific crimes the same. For example, in some states, to commit a burglary, you have to actually break into and then enter a building. In other states, it’s enough that you enter a building unlawfully, as in opening an unlocked door to a house the owners forgot to lock, intending to steal their HDTV inside. In still other states, all you have to do is stay inside a building you’ve entered lawfully — for example, hiding until after closing time in a store restroom during business hours, so you can steal stuff after the store closes.

The defenses to crime also vary across state lines. In some states, insanity requires proof both that defendants didn’t know what they were doing and that they didn’t know it was wrong to do it. In other states, it’s enough to prove either that defendants didn’t know what they were doing or that they didn’t know that it was wrong. Some states permit individuals to use deadly force to protect their homes from intruders; others require proof that the occupants in the home were in danger of serious bodily harm or death before they can shoot intruders. Punishments also differ widely among the states. Several states prescribe death for some convicted murderers; others prescribe life imprisonment. Capital punishment states differ in how they execute murderers: by electrocution, lethal injection, the gas chamber, hanging, or even the firing squad. The death penalty is only the most dramatic example of different punishments. Less dramatic examples affect far more people. For example, some states lock up individuals who possess small quantities of marijuana for private use; in other states, it’s not a crime at all. This diversity among the criminal codes makes it clear there’s no single U.S. criminal code. But this diversity shouldn’t obscure the broad outline that’s common to all criminal laws in the United States. They’re all based on the general principles of liability that we touched on earlier in this chapter and that you’ll learn more in depth about it. They also include the defenses of justification and excuse that you’ll learn about it. The definitions of the crimes you’ll learn about differ more, so there we’ll take account of the major differences. But, even these definitions resemble one another more than they differ. For example, “murder” means killing someone on purpose; criminal sexual assault includes sexual penetration by force; “robbery” means taking someone’s property by force or threat of force; “theft” means taking, and intending to keep permanently, someone else’s property. And, the crimes against the state and other crimes in the U.S. criminal code don’t recognize state lines; they apply everywhere in the country. Now, let’s turn to the other big question in the big picture of American criminal law, the law of punishment.

What’s the Appropriate Punishment for Criminal Behavior?

The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners. Indeed, the United States leads the world in producing prisoners, a reflection of a relatively recent and now entirely distinctive American approach to crime and punishment. Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other countries. (Liptak 2008)
More meaningful than the raw numbers mentioned in the quote, are the rates of imprisonment, measured by the numbers of prisoners per 100,000 people in the general population. Here, too, the United States clearly leads the world (see Figure 1.1).

It’s not just the numbers of prisoners and rates of imprisonment that stand out. Gender, age, race, and ethnicity are not equally represented in the prisoner population. Black men are imprisoned at the highest rate, 6.5 times higher than White men, and 2.5 times higher than Hispanic men. Similarly, the Black women imprisonment rate is nearly double the imprisonment rates for Hispanic women, and three times the rate for White women (West and Sabol 2009, 4). With all the attention imprisonment deservedly receives, you should keep in mind that there are millions more Americans on probation and parole, and other forms of “community corrections” than are locked up in prisons and jails. Also, a few convicted offenders are executed. These numbers tell us the quantity of punishment, which we should surely acknowledge — and accept that for good or ill — it’s probably not going to change any time soon. But, the quantity of punishment doesn’t tell us anything about three essential aspects of punishment. First, it doesn’t define “punishment” as we use it in criminal law. Second, it doesn’t explain the purposes of (also called justifications for) criminal punishment. Third, it doesn’t tell us what the limits of criminal punishment are. (You’ll learn about the limits of punishment in Chapter 2 in the section on the U.S. Constitution’s Eighth Amendment ban on “cruel and unusual punishments,” the Sixth Amendment’s “right to trial by jury,” and the due process requirement of proof beyond a reasonable doubt.) Let’s turn now to the definition of, and the justifications for, “punishment.”

The Definition of “Criminal Punishment”

In everyday life, “punishment” means intentionally inflicting pain or other unpleasant consequences on another person. Punishment takes many forms in everyday life. A parent grounds a teenager; a club expels a member; a church excommunicates a parishioner; a friend rejects a companion; a school expels a student for cheating — all these are punishments in the sense that they intentionally inflict pain or other unpleasant consequences (“hard treatment”) on the recipient. However, none of these is criminal punishment. To qualify as criminal punishment, penalties have to meet four criteria:

  1. They have to inflict pain or other unpleasant consequences.
  2. They have to prescribe a punishment in the same law that defines the crime.
  3. They have to be administered intentionally.
  4. The state has to administer them.

The last three criteria don’t need explanation; the first does. “Pain or other unpleasant consequences” is broad and vague. It doesn’t tell us what kind of, or how much, pain. A violent mental patient confined indefinitely to a padded cell in a state security hospital suffers more pain than a person incarcerated for five days in the county jail for disorderly conduct. Nevertheless, only the jail sentence is criminal punishment. The difference lies in the purpose of the confinement. Hospitalization aims to treat and cure the mental patient; the pain is a necessary but an unwanted side effect, not the reason for the confinement. On the other hand, the pain of confinement in the jail is inflicted intentionally to punish the inmate’s disorderly conduct. This distinction between criminal punishment and treatment is rarely clear-cut. For example, the government may sentence certain convicted criminals to confinement in maximum-security hospitals; it may sentence others to prison for “treatment” and “cure.” Furthermore, pain and pleasure don’t always distinguish punishment from treatment. Shock treatment and padded cells inflict more pain than confinement in some minimum-security federal prisons with their “country club” atmospheres. When measured by pain, those who receive it may well prefer punishment to treatment. Some critics maintain that the major shortcoming of treatment is that “helping” a patient can lead to excessive measures, as it sometimes has, in such examples as massive surgery, castration, and lobotomy (Hart 1958, 403–05).

The Purposes of Criminal Punishment

Thinking about the purposes for criminal punishment has divided roughly into two schools that have battled for five centuries, maybe even for millennia. On the retribution side of the divide, retributionists insist that only the pain of punishment can pay for offenders’ past crimes. In other words, punishment justifies itself. On the prevention side of the divide, utilitarians insist with equal passion that the pain of punishment can — and should — be only a means to a greater good, usually the prevention or at least the reduction of future crime. Let’s look at each of these schools.

Retribution

Striking out to hurt what hurts us is a basic human impulse. It’s what makes us kick the table leg we stub our toe on. This impulse captures the idea of retribution, which appears in the texts of many religions. Here’s the Old Testament version: Now a man, when he strikes down any human life, he is put to death, yes death! And a man, when he renders a defect in his fellow, as he has done, thus is to be done to him — break in place of break, eye in place of eye, tooth in place of tooth. (Fox 1995, translating Leviticus 24: 17, 19–20)
Of course, we don’t practice this extreme form of payback in the United States, except for murder — and, even for murder, the death penalty is rarely imposed (Chapter 2).

In other cases, the Old Testament version of retribution is unacceptable to most retributionists and highly unrealistic: raping a rapist? robbing a robber? burning down an arsonist’s house? Retribution looks back to past crimes and punishes individuals for committing them, because it’s right to hurt them. According to the great Victorian English judge and historian of the criminal law Sir James F. Stephen (1883), the wicked deserve to suffer for their evil deeds:
The infliction of punishment by law gives definite expression and a solemn ratification and justification to the hatred, which is excited by the commission of the offense. The criminal law thus proceeds upon the principle that it is morally right to hate criminals, and it confirms and justifies that sentiment by inflicting on criminals punishments, which express it. I think it highly desirable that criminals should be hated, that the punishments inflicted upon them should be so contrived as to give expression to that hatred, and to justify it so far as the public provision of means for expressing and gratifying a healthy natural sentiment can justify and encourage it. The forms in which deliberate anger and righteous disapprobation are expressed, and the execution of criminal justice is the most emphatic of such forms, stand to the one set of passions in the same relation in which marriage stands to sexual passion. (81–82)
Retributionists contend that punishment benefits not only society, as Stephen emphasized, but also criminals. Just as society feels satisfied by “paying back” criminals, giving criminals their “just deserts,” offenders benefit by putting right their evil. Society pays back criminals by retaliation; criminals pay back society by accepting responsibility through punishment. Both paybacks are at the heart of retribution. Retribution is right only if offenders choose between committing and not committing crimes. In other words, we can blame criminals only if they had these choices and made the wrong choice. So in the popular “Do the crime, do the time,” what we really mean is, “You chose to do the crime, so you have to do the time.” Their wrong choice makes them blameworthy. And their blameworthiness (the criminal law calls it their “culpability”) makes them responsible (the criminal law calls it “liable”). So as culpable, responsible individuals, they have to suffer the consequences of their irresponsible behavior. Retribution has several appealing qualities. It assumes free will, thereby enhancing individual autonomy. Individuals who have the power to determine their own destinies aren’t at the mercy of forces they can’t control. Retribution also seems to accord with human nature. Hating and hurting wrongdoers — especially murderers, rapists, robbers, and other violent criminals — appear to be natural impulses (Gaylin 1982; Wilson and Herrnstein 1985, ch. 19). Moreover, retribution has an ancient pedigree. From the Old Testament’s philosophy of taking an eye for an eye, to the nineteenth-century Englishman’s claim that it’s right to hate and hurt criminals, to today’s “three strikes and you’re out” and “do the crime, do the time” sentences, the desire for retribution has run strong and deep in both religion and criminal justice. Its sheer tenacity seems to validate retribution. Retributionists, however, claim that retribution rests not only on long use but also on two firm philosophical foundations, namely culpability and justice. According to its proponents, retribution requires culpability. Only someone who intends to harm her victim deserves punishment; accidents don’t qualify. So people who load, aim, and fire guns into their enemies’ chests deserve punishment; hunters who fire at what they think is a deer and hit their companions who they should know are in the line of fire, don’t. Civil law can deal with careless people; the criminal law ought to punish only people who harm their victims “on purpose.” Retributionists also claim that justice is the only proper measure of punishment. Justice is a philosophical concept whose application depends on culpability. Culpability depends on blame; we can punish only those who we can blame; we can blame only those who freely choose, and intend, to harm their victims. Therefore, only those who deserve punishment can justly receive it; if they don’t deserve it, it’s unjust. Similarly, justice is the only criterion by which to determine the quality and quantity of punishment (“Proportional Punishments”). Opponents find much to criticize in retribution. First, it’s difficult to translate abstract justice into concrete penalties. What are a rapist’s just deserts? Is castration for a convicted rapist justice? How many years in prison is a robbery worth? How much offender suffering will repay the pain of a maimed aggravated assault victim? Of course, it’s impossible to match exactly the pain of punishment and the suffering caused by the crime. Another criticism is that the urge to retaliate isn’t part of human nature in a civilized society; it’s the last remnant of barbarism. Retributionists can only assume that human nature cries out for vengeance; they can’t prove it. So it’s time for the law to reject retribution as a purpose for punishment. Determinists, which include many criminologists, reject the free-will assumption underlying retribution (Mayer and Wheeler 1982; Wilson and Herrnstein 1985). They maintain that forces beyond human control determine individual behavior. Social scientists have shown the relationship between social conditions and crime. Psychiatrists point to subconscious forces beyond the conscious will’s control that determine criminal conduct. A few biologists have linked violent crime to biological and biochemical abnormalities. Determinism undermines the theory of retribution because it rejects blame, and punishment without blame is unjust. Probably the strongest argument against retribution is that the vast number of crimes don’t require culpability to qualify for criminal punishment (Diamond 1996, 34). This includes almost all the crimes against public order and morals (discussed). It includes some serious crimes, too — for example, statutory rape — where neither the consent of the victim nor an honest and reasonable mistake about the victim’s age relieves statutory rapists from criminal liability (discussed) — and several kinds of unintentional homicides (discussed).

Prevention

Prevention looks forward and inflicts pain, not for its own sake, but to prevent (or at least reduce) future crimes. There are four kinds of prevention. General deterrence aims, by the threat of punishment, to prevent the general population who haven’t committed crimes from doing so. Special deterrence aims, by punishing already convicted offenders, to prevent them from committing any more crimes in the future. Incapacitation prevents convicted criminals from committing future crimes by locking them up, or more rarely, by altering them surgically or executing them. Rehabilitation aims to prevent future crimes by changing individual offenders so they’ll want to play by the rules and won’t commit any more crimes in the future. As you can see, all four forms of prevention inflict pain, not for its own sake, but to secure the higher good of preventing future crimes. Let’s look at each of these forms of prevention.

General and Special Deterrence
Jeremy Bentham, an eighteenth-century English law reformer, promoted deterrence. Bentham was part of the intellectual movement called “the Enlightenment.” At the core of the movement was the notion that natural laws govern the physical universe and, by analogy, human society. One of these “laws,” hedonism, is that human beings seek pleasure and avoid pain. A related law, rationalism, states that individuals can, and ordinarily do, act to maximize pleasure and minimize pain. Rationalism also permits human beings to apply natural laws mechanistically (according to rules) instead of discretion (according to the judgment of individual decision makers). These ideas, oversimplified here, led Bentham to formulate classical deterrence theory. According to the theory, rational human beings won’t commit crimes if they know that the pain of punishment outweighs the pleasure gained from committing crimes. Prospective criminals weigh the pleasure they hope to get from committing a crime now against the threat of pain they believe they’ll get from future punishment. According to the natural law of hedonism, if prospective criminals fear future punishment more than they derive pleasure from present crime, they won’t commit crimes. In short, they’re deterred. Supporters of deterrence argue that the principle of utility — permitting only the minimum amount of pain necessary to prevent the crime — limits criminal punishment more than retribution does. English playwright George Bernard Shaw, a strong deterrence supporter, put it this way: “Vengeance is mine saith the Lord; which means it is not the Lord Chief Justice’s” (Morris 1974). According to this argument, only God, the angels, or some other divine being can measure just deserts. Social scientists, on the other hand, can determine how much pain, or threat of pain, deters crime. With this knowledge, the state can scientifically inflict the minimum pain needed to produce the maximum crime reduction. Deterrence supporters concede that there are impediments to putting deterrence into operation. The emotionalism surrounding punishment impairs objectivity, and often, prescribed penalties rest more on faith than evidence. For example, the economist Isaac Ehrlich’s (1975) sophisticated econometric study showed that every execution under capital punishment laws may have saved seven or eight lives by deterring potential murderers. His finding sparked a controversy having little to do with the study’s empirical validity. Instead, the arguments turned to ethics — whether killing anyone is right, no matter what social benefits it produces. During the controversy over the study, one thoughtful state legislator told me that he didn’t “believe” the findings, but if they were true, then “we’ll just have to deep-six the study.” Critics find several faults with deterrence theory and its application to criminal punishment. According to the critics, the rational, free-will individual that deterrence supporters assumes exists is as far from reality as the eighteenth-century world that spawned the idea. Complex forces within the human organism and in the external environment, both of which are beyond individual control, strongly influence behavior (Wilson and Herrnstein 1985). Furthermore, critics maintain that individuals and their behavior are too unpredictable to reduce to a mechanistic formula. For some people, the existence of criminal law is enough to deter them from committing crimes; others require more. Who these others are and what the “more” consists of hasn’t been sufficiently determined to base punishment on deterrence. Besides, severity isn’t the only influence on the effectiveness of punishment. Certainty and speed may have greater deterrent effects than severity (Andenæs 1983, 2:593).

Also, threats don’t affect all crimes or potential criminals equally. Crimes of passion, such as murder and rape, are probably little affected by threats; speeding, drunk driving, and corporate crime are probably greatly affected by threats. The leading deterrence theorist, Johannes Andenæs (1983), sums up the state of our knowledge about deterrence this way: There is a long way to go before research can give quantitative forecasts. The long-term moral effects of the criminal law and law enforcement are especially hard to isolate and quantify. Some categories of crime are so intimately related to specific social situations that generalizations of a quantitative kind are impossible. An inescapable fact is that research will always lag behind actual developments. When new forms of crime come into existence, such as hijacking of aircraft or terrorist acts against officers of the law, there cannot possibly be a body of research ready as a basis for the decisions that have to be taken. Common sense and trial by error have to give the answers. (2:596)
Finally, critics maintain that even if we could obtain empirical support for criminal punishment, deterrence is unjust because it punishes for example’s sake. Supreme Court Justice Oliver Wendell Holmes (Howe 1953) offered this analogy: If I were having a philosophical talk with a man I was going to have hanged (or electrocuted) I should say, “I don’t doubt that your act was inevitable for you but to make it more avoidable by others we propose to sacrifice you to the common good. You may regard yourself as a soldier dying for your country if you like. But the law must keep its promises” (806). Punishment shouldn’t be a sacrifice to the common good; it’s only just if it’s administered for the redemption of particular individuals, say the retributionists. Punishment is personal and individual, not general and societal. Deterrence proponents respond that as long as offenders are in fact guilty, punishing them is personal; hence, it is just to use individual punishment for society’s benefit.

Incapacitation

Incapacitation restrains convicted offenders from committing further crimes. At the extreme, incapacitation includes mutilation — castration, amputation, and lobotomy — or even death in capital punishment. Incapacitation in most cases means imprisonment. Incapacitation works: dead people can’t commit crimes, and prisoners don’t commit them — at least not outside prison walls. Incapacitation, then, has a lot to offer a society determined to repress crime. According to criminologist James Q. Wilson (1975): The chances of a persistent robber or burglar living out his life, or even going a year with no arrest, are quite small. Yet a large proportion of repeat offenders suffer little or no loss of freedom. Whether or not one believes that such penalties, if inflicted, would act as a deterrent, it is obvious that they could serve to incapacitate these offenders and, thus, for the period of the incapacitation, prevent them from committing additional crimes. (209)
Like deterrence and retribution, incapacitation has its share of critics. They argue that incapacitation merely shifts criminality from outside prisons to inside prisons. Sex offenders and other violent criminals can and do still find victims among other prisoners; property offenders trade contraband and other smuggled items. As you might imagine, this criticism finds little sympathy (at least among many of my students, who often answer this criticism with an emphatic, “Better them than me”). Of course, because almost all prisoners “come home,” their incapacitation is always temporary.

Rehabilitation

In his widely acclaimed book The Limits of the Criminal Sanction, Herbert Packer (1968) succinctly summarized the aims of rehabilitation: “The most immediately appealing justification for punishment is the claim that it may be used to prevent crimes by so changing the personality of the offender that he will conform to the dictates of law; in a word, by reforming him” (50). Rehabilitation borrows from the “medical model” of criminal law. In this model, crime is a “disease,” and criminals are “sick.” According to rehabilitationists, the purpose of punishment is to “cure” criminal patients by “treatment.” The length of imprisonment depends on how long it takes to cure the patient. Supporters contend that treating offenders is more humane than punishing them. Two assumptions underlie rehabilitation theory. The first is determinism; that is, forces beyond offenders’ control cause them to commit crimes. Because offenders don’t choose to commit crimes, we can’t blame them for committing them. Second, therapy by experts can change offenders (not just their behavior) so that they won’t want to commit any more crimes. After rehabilitation, former criminals will control their own destinies. To this extent, rehabilitationists adopt the idea of free will and its consequences: criminals can choose to change their life habits; so society can blame and punish them. The view that criminals are sick has profoundly affected criminal law — and generated acrimonious debate. The reason isn’t because reform and rehabilitation are new ideas; quite the contrary is true. Victorian Sir Francis Palgrave summed up a 700-year-old attitude when he stated the medieval church’s position on punishment: it was not to be “thundered in vengeance for the satisfaction of the state, but imposed for the good of the offender; in order to afford the means of amendment and to lead the transgressor to repentance, and to mercy.” Sixteenth-century Elizabethan pardon statutes were laced with the language of repentance and reform; the queen hoped to achieve a reduction in crime by mercy rather than by vengeance. Even Jeremy Bentham, most closely associated with deterrence, claimed that punishment would “contribute to the reformation of the offender, not only through fear of being punished again, but by a change in his character and habits” (Samaha 1978, 763). Despite this long history, rehabilitation has suffered serious attacks. First, and most fundamental, critics maintain that rehabilitation is based on false, or at least unproven, assumptions. The causes of crime are so complex, and the wellsprings of human behavior as yet so undetermined, that sound policy can’t depend on treatment. Second, it makes no sense to brand everyone who violates the criminal law as sick and needing treatment (Schwartz 1983, 1364–73). Third, critics call rehabilitation inhumane because the cure justifies administering large doses of pain. British literary critic C. S. Lewis (1953) argued:
My contention is that good men (not bad men) consistently acting upon that position would act as cruelly and unjustly as the greatest tyrants. They might in some respects act even worse. Of all tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good, will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to Heaven yet at the same time likelier to make a Hell of earth.

Their very kindness stings with intolerable insult. To be “cured” against one’s will and cured of states which we may not regard as disease is to be put on a level with those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals. But to be punished, however severely, because we have deserved it, because we “ought to have known better,” is to be treated as a human person made in God’s image. (224)

Trends in Punishment

Historically, societies have justified punishment on the grounds of retribution, deterrence, incapacitation, and rehabilitation. But the weight given to each has shifted over the centuries. Retribution and rehabilitation, for example, run deep in English criminal law from at least the year 1200. The church’s emphasis on atoning for sins and rehabilitating sinners affected criminal law variously. Sometimes the aims of punishment and reformation conflict in practice. In Elizabethan England, for example, the letter of the law was retributive: the penalty for all major crimes was death. Estimates show that in practice, however, most accused persons never suffered this extreme penalty. Although some escaped death because they were innocent, many were set free on the basis of their chances for rehabilitation. The law’s technicalities, for example, made death a virtually impossible penalty for first-time property offenders. In addition, the queen’s general pardon, issued almost annually, gave blanket clemency in the hope that criminals, by this act of mercy, would reform their erring ways (Samaha 1974, 1978). Gradually, retribution came to dominate penal policy, until the eighteenth century, when deterrence and incapacitation were introduced to replace what contemporary humanitarian reformers considered ineffective, brutal, and barbaric punishment in the name of retribution. By 1900, humanitarian reformers had concluded that deterrence was neither effective nor humane. Rehabilitation replaced deterrence as the aim of criminal sanctions and remained the dominant form of criminal punishment until the 1960s. Most states enacted indeterminate sentencing laws that made prison release dependent on rehabilitation. Most prisons created treatment programs intended to reform criminals so they could become law-abiding citizens. Nevertheless, considerable evidence indicates that rehabilitation never really won the hearts of most criminal justice professionals, despite their strong public rhetoric to the contrary (Rothman 1980). In the early 1970s, little evidence existed to show that rehabilitation programs reformed offenders. The “nothing works” theme dominated reform discussions, prompted by a highly touted, widely publicized, and largely negative study evaluating the effectiveness of treatment programs (Martinson 1974). At the same time that academics and policy makers were becoming disillusioned with rehabilitation, public opinion was hardening into demands for severe penalties in the face of steeply rising crime rates. The time was clearly ripe for retribution to return to the fore as a dominant aim of punishment. In 1976, California, a rehabilitation pioneer in the early 1900s, reflected this shift in attitude. In its Uniform Determinate Sentencing Law, the California legislature abolished the indeterminate sentence, stating boldly that “the purpose of imprisonment is punishment,” not treatment or rehabilitation. Called “just deserts,” retribution was touted as “right” by conservatives who believed in punishment’s morality and as “humane” by liberals convinced that rehabilitation was cruel and excessive. Public opinion supported it, largely on the grounds that criminals deserve to be punished (Feeley 1983, 139). The new philosophy (actually the return to an old philosophy) replaced the indeterminate sentence with fixed (determinate) sentences, in which the sentence depends on the criminal harm suffered by the victim, not the rehabilitation of the offender. Since the mid-1980s, reformers have heralded retribution and incapacitation as the primary purpose of criminal punishments. The Model Penal Code (described later in “The Model Penal Code (MPC)” section), clung to prevention, namely in the form of rehabilitation from its first version in 1961, when rehabilitation dominated penal policy. After thoroughly reviewing current research and debate, its reporters decided to retain rehabilitation, but to replace it as the primary form of punishment with incapacitation and deterrence (American Law Institute 2007). According to the tentative new provisions, the purpose of sentencing is retribution, namely to impose sentences “within a range of severity proportionate to the gravity of offenses, the harms done to crime victims, and the blameworthiness of offenders. . . .” And only “when reasonably feasible, to achieve offender rehabilitation, general deterrence, incapacitation of dangerous offenders, restoration of crime victims and communities, and reintegration of offenders into the law-abiding community, provided these goals are pursued within the boundaries of proportionality . . . (1). Before the government can punish criminal behavior — however it’s defined, classified, and whatever source it’s derived from — the government has to prove that the defendant committed the crime. Let’s turn now to providing you with some of the basics of proving defendants are guilty.

Presumption of Innocence and Proving Criminal Liability

Under our legal system, criminal defendants enjoy the presumption of innocence, which practically speaking means that the prosecution has the burden of proof when it comes to proving the criminal act and intent. As you learned earlier in the chapter (p. 6), proving criminal conduct is necessary to impose criminal liability and punishment. But, it’s not enough. The criminal conduct must be without justification or excuse. Here, the burden of proof can shift from the prosecution to the defense. Let’s look at the burden of proof of criminal conduct, and the burden of proof in justification and excuse defenses.

Burden of Proof of Criminal Conduct

According to the U.S. Supreme Court (In re Winship 1970), the government has to prove beyond a reasonable doubt, “every fact necessary to constitute the crime charged” (363). Proof beyond a reasonable doubt is the highest standard of proof known to the law. Notice that highest doesn’t mean beyond all doubt or to the level of absolute certainty. Reasonable doubt consists of “the proof that prevents one from being convinced of the defendant’s guilt, or the belief that there is a real possibility that the defendant is not guilty” (Black’s Law Dictionary 2004, 1,293).

The great Victorian Judge Lemuel Shaw (1850), wrote this about trying to define reasonable doubt. Reasonable doubt is a term often used, probably pretty well understood, but not easily defined. It is not a mere possible doubt; because every thing relating to human affairs . . . is open to some possible or imaginary doubt. It is that state of the case, which after all the comparison and consideration of the evidence, leaves the minds of the jury in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. (320)
Judge Shaw refers to proving guilt to juries, whom we usually associate with trials. But not all trials are jury trials. In bench trials, in cases where the accused give up their right to a jury trial, prosecutors have to prove guilt to the trial judge. We need to clear up an often-misunderstood and wrongly used term related to the proof of criminal behavior, namely “corpus delicti” (Latin “body of the crime”). The misunderstanding and misuse arises from mistaking the body of the crime with the body of the victim in homicides, where corpus delicti commonly appears. However, it also properly applies to the elements of criminal conduct (for example, stealing someone’s property in theft) and bad result crimes (for example, criminal homicide) that you’ll encounter in Chapters 3 and 4, and 9 through 13.

Proving the Defenses of Justification and Excuse

The defenses of justification (Chapter 5) and of excuse (Chapter 6) are called affirmative defenses because defendants have to present evidence. Affirmative defenses operate like this: Defendants have to “start matters off by putting in some evidence in support” of their justification or excuse (LaFave and Scott, 1986). We call this the burden of production. Why put this burden on defendants? Because “We can assume that those who commit crimes are sane, sober, conscious, and acting freely. It makes sense, therefore, to make defendants responsible for injecting these extraordinary circumstances into the proceedings” (52). The amount of evidence required “is not great; some credible evidence” is enough. In some jurisdictions, if defendants meet the burden of production, they also have the burden of persuasion, meaning they have to prove their defenses by a preponderance of the evidence, defined as more than 50 percent. In other jurisdictions, once defendants meet the burden of production, the burden shifts to the government to prove defendants weren’t justified or excused (Loewy 1987, 192–204). All that you’ve learned up to now, valuable as it all is, neglects an entire dimension to criminal law and punishment — informal discretionary decision making hidden from view. Let’s look briefly at this enormously important dimension.

Discretionary Decision Making

Most of what you’ll learn in this book focuses on decisions made according to formal law, namely rules written and published in the Constitution, laws, judicial opinions, and other written sources. But, you can’t really understand what’s happening in your journey through criminal law and punishment without understanding something about decision making that’s not visible in the written sources. This invisible informal discretionary decision making — consisting of judgments made by professionals, based on unwritten rules, their training, and their experience — is how the process works on a day-to-day basis. Think of each step in the criminal process as a decision point. Each step presents a criminal justice professional with the opportunity to decide whether or not to start, continue, or end the criminal process. The police can investigate suspects, or not, and arrest them, or not — initiating the formal criminal process, or stopping it. Prosecutors can charge suspects and continue the criminal process, divert suspects to some social service agency, or take no further action — effectively terminating the criminal process. Defendants can plead guilty (usually on their lawyers’ advice) and avoid trial. Judges can suspend sentences or sentence convicted offenders to the maximum allowable penalty — hence, either minimizing or maximizing the punishment the criminal law prescribes. Justice, fairness, and predictability all require the certainty and the protection against abuses provided by written rules. These same goals also require discretion to soften the rigidity of written rules. The tension between formal law and informal discretion — a recurring theme in criminal procedure — is as old as law; arguments raged over it in Western civilization as early as the Middle Ages. One example of the need for discretionary decision making comes up when laws are applied to behavior that “technically” violates a criminal statute but was never intended by the legislature to be criminalized. This happens because it’s impossible for legislators to predict all the ramifications of the statutes they enact. For example, it’s a misdemeanor to drink in public parks in many cities, including Minneapolis. Yet, when a gourmet group had a brunch in a city park, because they thought the park had just the right ambience in which to enjoy their salmon mousse and imported French white wine, not only did the police not arrest the group for drinking in the park, but the city’s leading newspaper wrote it up as a perfectly respectable social event. A young public defender wasn’t pleased with the nonarrest. He pointed out that the police had arrested, and the prosecutor was at that moment prepared to prosecute, a Native American caught washing down a tuna fish sandwich with cheap red wine in another Minneapolis park. The public defender — a bit of a wag — noted that both the gourmet club and the Native American were consuming items from the same food groups. This incident displays both the strengths and weaknesses of discretion. The legislature obviously didn’t intend the statute to cover drinking of the type the gourmet club engaged in; arresting them would have been foolish. On the other hand, arresting and prosecuting the Native American might well have been discriminatory, a wholly unintended and unacceptable result of law enforcement that is discretionary and selective.

The Text-Case Method

Now that you’ve got the big picture of criminal liability and punishment, the overarching principles that apply to all of criminal law, the sources of criminal law in a federal system, proving criminal conduct and the justifications and excuses to criminal liability, and the importance of discretionary decision making, it’s time to take a closer look at the method this book uses to help you learn, understand, and think critically about criminal law. It’s called the “text-case method,” and Criminal Law 10 is called a “text-case book,” meaning that it’s part text and part excerpts from criminal law cases specially edited for nonlawyers like you. The text part of the book explains the general principles of criminal law and the definitions of specific crimes. The case excerpts involve real-life crimes that apply the general information in the text to real-life situations. The application of principles and definitions of crimes to the facts of specific cases serves two important purposes. First, it helps you understand the principles and the elements of specific crimes. Second, it stimulates you to think critically about the principles and their applications. I believe the combination of text and case excerpts is the best way to test whether you understand and can think about general concepts rather than just memorizing and writing them by rote. So, although you can learn a lot from the text without reading the case excerpts, you won’t get the full benefit of what you’ve learned without applying and thinking about it by reading the case excerpts. For most of my students (and from emails many of you send me), reading and discussing the case excerpts are their favorite part of the book. That’s good. Cases bring criminal law to life by applying the abstract general principles, doctrines, and rules described in the text to real events in the lives of real people. But keep in mind that judges write the reports of the cases the excerpts are taken from. So don’t be surprised to learn that they don’t all write with college students or other nonlawyers in mind. Reading the excerpts may take some getting used to. This section is designed to help you get the most out of the cases. The cases in this book are all excerpts, edited versions of the complete reports of the cases. In almost all the case excerpts, you’ll read reports of the appeals of guilty verdicts, not transcripts of the criminal trial. A jury or trial court judge has already found a defendant guilty, or more likely the defendant has pleaded guilty in a trial court; the trial judge has entered a judgment of conviction; and the defendant has appealed the conviction. Incidentally, you’ll never read the appeal of an acquittal. Why not? In the criminal law of the United States, a “not guilty” verdict is final and not subject to review. (There’s an exception, sort of, to this rule, but we’ll take it up in the first of the few case excerpts where the exception applies.) Let’s look at a few technical, but essential, points about the verdicts “not guilty” and “guilty.” A “not guilty” verdict doesn’t mean innocent; it means the government didn’t prove its case beyond a reasonable doubt. Think of “not guilty” as “not legally guilty.” A “guilty” verdict doesn’t mean not innocent; it means the government proved its case beyond a reasonable doubt. Think of “guilty” as “legally guilty.” These differences are not just technicalities. As you read the cases, remember that some of the legally guilty defendants you’re reading about are factually innocent. The flip side is also true; some acquitted defendants are factually guilty. The number of factually guilty people who “got off” is probably less than many people believe (“Symposium: Wrongful Convictions and Systemic Reform” 2005). Criminal cases start in trial courts. It’s in the trial courts that the cases for the state and the defense are presented; where their witnesses and the physical evidence are introduced; and where the fact finders (juries in jury trials or judges in nonjury bench trials) decide what the “true” story is and whether the evidence all adds up to proof of guilt beyond a reasonable doubt). If there’s reasonable doubt, the jury renders its “not guilty” verdict; the judge enters a judgment of acquittal; and, the case is over — for good. There’s no appeal to an acquittal; the fact finders’ not guilty verdict is always final. If there’s proof beyond a reasonable doubt, the fact finders render their “guilty” verdict; the judge enters a judgment of guilty — and the case might be over. Sometimes, defendants appeal judgments of guilt. These appeals go to appellate courts. (The case excerpts are drawn from the official reports of these courts’ decisions.) Most states and the federal government have two levels of appeals courts (see Figure 1.2): an intermediate court of appeals and a supreme court. The usual procedure is to appeal first to the intermediate court of appeals and then to the state supreme court. In a very few cases involving issues about the U.S. Constitution, the case may go to the U.S. Supreme Court. That’s where the case excerpts in this book enter the picture. Let’s look at the parts of the appellate cases you’ll be reading excerpts from.

The Parts of the Case Excerpts

Don’t worry if reading cases intimidates you at first. Like students before you, you’ll get the hang of it before long. To help you get the most out of the case excerpts, I’ve outlined the main parts of each case: the (1) title, (2) citation, (3) procedural history, (4) judge, (5) facts, (6) judgment, and (7) opinion. 1. Title The case title consists of the names of the parties, either appellants (the party appealing the case) and appellees (party appealed against) or petitioners (parties bringing a case in habeas corpus or certiorari) and respondents (parties petitioned against in habeas corpus and certiorari). 2. Citation The citation is like the footnote or endnote in any text; it tells you where to find the case. (See “Finding Cases” section later.) 3. Procedural history The case history is a brief description of the steps and judgments (decisions) made by each court that has heard the case. 4. Judge The name of the judge is the judge who wrote the opinion and issued the court’s judgment in the case. 5. Facts The facts of the case are the critical starting point in reading and analyzing cases. If you don’t know the facts, you can’t understand the principle the case is teaching. One of my favorite law professors, Professor Hill, frequently reminded us: “Cases are stories with a point. You can’t get the point if you don’t know the story.” He also gave us some helpful advice: “Forget you’re lawyers. Tell me the story as if you were telling it to your grandmother who doesn’t know anything about the law.”

6. Judgment (Decision) The court’s judgment (sometimes called the court’s “decision”) is how the court disposes of the case. In the trial court, the judgments are almost always guilty or not guilty. In appeals courts, the judgments are affirmed, reversed, or reversed and remanded (sent back to the trial court). This is the most important legal action of the court, because it’s what decides what happens to the defendant and the government. 7. Opinion For students wanting to learn criminal law, the court’s opinion is more important than the judgment: it’s “the point of the story.” In the opinion, the court backs up its judgment by explaining how and why the court applied the law (general principles and the elements of crimes) to the facts of the case. The law in the case excerpts includes the constitutional principles in Chapter 2; the principles of criminal liability in Chapters 3 and 4; the defenses in Chapters 5 and 6; the law of parties to crime and incomplete offenses in Chapters 7 and 8; and the law of crimes against persons, property, public order, and the state in Chapters 9 through 13.
The opinion contains two essential ingredients: 1. The court’s holding — the legal rule the court has decided to apply to the facts of the cases. 2. The court’s reasoning — the reasons the court gives to support its holding. In some cases, the justices write majority and dissenting opinions.
A majority opinion, as its name indicates, is the opinion of the majority of the justices on the court who participated in the case. The majority opinion lays out the law of the case. Although the majority opinion represents the established law of the case, dissenting opinions present a plausible alternative to the majority opinion. Dissents of former times sometimes become the law of later times. For example, dissents in U.S. Supreme Court opinions of the 1930s became the law in the 1960s, and many of the dissents of the 1960s became law by the 1990s, and remain the law as you’re reading this. Mostly in U.S. Supreme Court cases, you’ll also see a concurring opinion. In concurring opinions, justices agree with the conclusions of either the majority or the dissenting opinion, but they have different reasons for reaching the conclusion. Sometimes, enough justices agree with the result in the case to make up a majority decision, but not enough agree on the reasoning to make up a majority opinion. In these cases, there’s a plurality opinion, an opinion that represents the reasoning of the greatest number (but less than a majority) of justices. All of the differing perspectives in the opinions stimulate you to think about all the topics in criminal law. They also clearly demonstrate that there’s more than one reasonable way to look at important questions.

Briefing the Case Excerpts

To get the most from your reading of the case excerpts, you should write out the answers to the following questions about each. This is what we call “briefing” a case. 1. What are the facts? State the facts in simple narrative form in chronological order. As Professor Hill said, “Tell me the story as if you were telling it to your grandmother.” Then, select, sort, and arrange the facts into the following categories: a. Actions of the defendant List what the defendant did in chronological order. (Remember, there’s no criminal case without a criminal act by the defendant.)

b. Intent of the defendant required, if any If none is required, say “none.” c. Circumstances required by the statute defining the crime (such as age in statutory rape), if any If none is required, answer “none.” d. Causing a harmful result, if one is required If none is required, say “none.” e. Justification and excuse (defense), if any If none, answer “none.” 2. What’s the legal issue in the case? State the principle and/or element of a specific crime raised by the facts of the case. 3. What are the arguments in the court’s opinion? List the reasons the court gives for its decision. The court’s opinion consists of how and why the court applies the principle, doctrine, and/or rule to the facts of the case. 4. State the court’s judgment (decision) The most common judgments are a. Affirmed Upheld the judgment (decision) of the lower court
b. Reversed Overturned the judgment (decision) of the lower court c. Reversed and remanded Overturned the judgment (decision) of the lower court and sent the case back for further proceedings in accord with the appellate court’s decision Summary of briefing cases: You can’t answer all these questions in every case. First, the answers depend on the knowledge you’ll accumulate as the text and your instructor introduce more principles, doctrines, and rules. Second, courts don’t necessarily follow the same procedure in reviewing an appeal as the one outlined here. Third, not all of the questions come up in every case — except for one: What did the defendant do? That’s because there’s no criminal case without some action by the defendant (Chapter 3). Developing the skills needed to sort out the elements of the case excerpts requires practice, but it’s worth the effort. Answering the questions can challenge you to think not only about the basic principles, doctrines, and rules of criminal law but also about your own fundamental values regarding life, property, privacy, and morals.

Finding Cases

Knowing how to read and brief cases is important. So is knowing how to find cases. You may want to look up cases on your own, either in the library or in the rapidly expanding quantity of cases published on the Internet. These might include cases your instructor talks about in class, those discussed in the text, or the full versions of the case excerpts and the note cases following the excerpts. You may even want to look up a case you read or hear about outside of class. The case citation consists of the numbers, letters, and punctuation that follow the title of a case in the excerpts or in the bibliography at the end of the book. These letters and numbers tell you where to locate the full case report. For example, in State v. Metzger, just after the title of the case, “State v. Metzger,” you read “319 N.W. 2d 459 (Neb. 1982).” Here’s how to interpret this citation: 319 = Volume 319 N.W.2d = Northwestern Reporter, Second Series 459 = page 459 (Neb. 1982) = Nebraska Supreme Court in the year 1982 So if you’re looking for the full version of State v. Metzger, you’ll find it in Volume 319 of the Northwestern Reporter, Second Series, page 459. The Northwestern Reporter, Second Series, is the second series of a multivolume set of law books that publishes reports of cases decided by the supreme courts and intermediate appellate courts in Nebraska and several other states in the region. There are comparable reporters for other regions, including the Northeast (N.E.), Southern (So.), Southwest (S.W.), and Pacific (P.). Case citations always follow the same order. The volume number always comes before the title of a reporter and the page always comes immediately after the title. The abbreviation of the name of the court and the year the case was decided follow the page number in parentheses. You can tell if the court was the highest or an intermediate appellate court by the abbreviation. For example, in Metzger, the court is the Nebraska Supreme Court. (If the Nebraska intermediate appeals court had decided the case, you’d see “Neb. App.”)

In Conclusion

Criminal Law was my favorite class as a first-year law student at Northwestern University Law School in 1958. I’ve loved it ever since, a love that has only grown from teaching it at least once a year at the University of Minnesota since 1971. I hope my love of the subject comes through in Criminal Law, which I’ve just finished for the tenth time. It’s a great source of satisfaction that my modest innovation to the study of criminal law — the textcasebook — has endured and flourished. Criminal Law, the text-casebook, brings together the description, analysis, and critique of general principles with excerpts of cases edited for nonlawyers. Like its predecessors, Criminal Law, Tenth Edition, stresses both the general principles that apply to all of criminal law and the specific elements of particular crimes that prosecutors have to prove beyond a reasonable doubt. Learning the principles of criminal law isn’t just a good mental exercise, although it does stimulate students to use their minds. Understanding the general principles is an indispensable prerequisite for understanding the elements of specific crimes. The general principles have lasted for centuries. The definitions of the elements of specific crimes, on the other hand, differ from state to state and over time because they have to meet the varied and changing needs of new times and different places. That the principles have stood the test of time testifies to their strength as a framework for explaining the elements of crimes defined in the fifty states and in the U.S. criminal codes. But there’s more to their importance than durability; knowledge of the principles is also practical. The general principles are the bases both of the elements that prosecutors have to prove beyond a reasonable doubt to convict defendants and of the defenses that justify or excuse the guilt of defendants. So, Criminal Law, Tenth Edition, rests on a solid foundation. But it can’t stand still, any more than the subject of criminal law can remain frozen in time. The more I teach and write about criminal law, the more I learn and rethink what I’ve already learned; the more “good” cases I find that I didn’t know were there; and the more I’m able to include cases that weren’t decided and reported when the previous edition went to press. Of course, it’s my obligation to incorporate into the Tenth Edition these now-decided and reported cases, and this new learning, rethinking, and discovery. But obligation doesn’t describe the pleasure that preparing now ten editions of Criminal Law brings me. Finding cases that illustrate a principle in terms students can understand while at the same time stimulating them to think critically about subjects worth thinking about is the most exciting part of teaching and writing and why I take such care in revising this page.

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