This is an electronic version of the print textbook. Due to electronic rights restrictions, some third party content may be suppressed. Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. The publisher reserves the right to remove content from this title at any time if subsequent rights restrictions require it. For valuable information on pricing, previous editions, changes to current editions, and alternate formats, please visit www.cengage.com/highered to search by ISBN#, author, title, or keyword for materials in your areas of interest.
Important Notice: Media content referenced within the product description or the product text may not be available in the eBook version.
Criminal Law, Twelfth Edition
Joel Samaha
Product Director: Marta Lee-Perriard
Senior Product Manager: Carolyn Henderson Meier
Associate Content Developer: Julia White
Product Assistant: Valerie Kraus
Senior Marketing Manager: Kara Kindstrom
Senior Content Project Manager:
Christy Frame
Managing Art Director: Andrei Pasternak
Senior Manufacturing Planner: Judy Inouye
Text Researcher: Kanchana Vijayarangan, Lumina Datamatics
ALL RIGHTS RESERVED. No part of this work covered by the copyright herein may be reproduced, transmitted, stored, or used in any form or by any means graphic, electronic, or mechanical, including but not limited to photocopying, recording, scanning, digitizing, taping, Web distribution, information networks, or information storage and retrieval systems, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without the prior written permission of the publisher.
For product information and technology assistance, contact us at Cengage Learning Customer & Sales Support, 1-800-354-9706. For permission to use material from this text or product, submit all requests online at www.cengage.com/permissions. Further permissions questions can be e-mailed to permissionrequest@cengage.com.
Library of Congress Control Number: 2015949002
Student Edition:
ISBN: 978-1-305-57738-1
Looseleaf Edition:
ISBN: 978-1-305-66017-5 Printed in the United States of America
Print Number: 01
Cengage Learning
20 Channel Center Street Boston MA 02210
USA
Cengage Learning is a leading provider of customized learning solutions with employees residing in nearly 40 different countries and sales in more than 125 countries around the world. Find your local representative at www.cengage.com
Cengage Learning products are represented in Canada by Nelson Education, Ltd.
To learn more about Cengage Learning Solutions, visit www.cengage.com
Purchase any of our products at your local college store or at our preferred online store www.cengagebrain.com
Professor Joel Samaha teaches Criminal Law and Criminal Procedure and, until 2014, Introduction to Criminal Justice at the University of Minnesota. He is both a lawyer and a historian whose primary interest is crime control in a constitutional democracy. He received his BA, JD, and PhD from Northwestern University. Professor Samaha also studied under the late Sir Geoffrey Elton at Cambridge University, England. He was named the College of Liberal Arts Distinguished Teacher in 1974. In 2007, he was awarded the title of University of Minnesota Distinguished Teaching Professor and inducted into the Academy of Distinguished Teachers.
Professor Samaha was admitted to the Illinois Bar in 1962, where he practiced law briefly in Chicago. He taught at UCLA before going to the University of Minnesota in 1971. He has taught both television and radio courses in criminal justice and co-taught a National Endowment for the Humanities seminar in legal and constitutional history. At the University of Minnesota, he served as chair of the Department of Criminal Justice Studies from 1974 to 1978.
In addition to Law and Order in Historical Perspective (1974), an analysis of law enforcement in pre-industrial English society, Professor Samaha has transcribed and written a scholarly introduction to a set of local criminal justice records from the reign of Elizabeth I. He has also written several articles on the history of criminal justice, published in the Historical Journal, American Journal of Legal History, Minnesota Law Review, William Mitchell Law Review, and Journal of Social History. In addition to Criminal Law, he has written two other textbooks, Criminal Procedure, now in its ninth edition, and Criminal Justice, now in its seventh edition.
Brief Contents
Chapter 1 Criminal Law and punishment in u.S. Society: an overview 2
Chapter 2 Constitutional Limits on Criminal Law 38
Chapter 3 the Criminal act: the First principle of Criminal Liability 94
Chapter 4 the General principles of Criminal Liability: Mens Rea, Concurrence, ignorance, and Mistake 124
Chapter 5 defenses to Criminal Liability i: Justifications 162
Chapter 6 defenses to Criminal Liability ii: excuses 204
Chapter 7 parties to Crime and Vicarious Liability 242
Chapter 8 inchoate Crimes 270
Chapter 9 Crimes against persons i: Murder and Manslaughter 320
Chapter 10 Crimes against persons ii: Sex offenses, Bodily injury, and personal restraint 380
Chapter 11 Crimes against property 430
Chapter 12 Crimes against public order and Morals 484
Chapter 13 Crimes against the State 518
Glossary 544
Bibliography 554
Case Index 564
Index 568
iv
About the Author iii
Preface x
Chapter 1
Criminal Law and punishment in u.S. Society: an overview 2
Criminal Law in U.S. Society 5
The Core Felonies 7
“all the rest” of U.S. Criminal law:
The “Police Power” 8
History of the Police Power 8
Police Power and Public Morals 9
Crimes and Noncriminal Legal Wrongs 10
Classifying Crimes 12
Sources of Criminal Law 12
State Criminal Codes 13
The model Penal Code (mPC) 14
municipal ordinances 15
The U.S. Criminal Code 16
administrative agency Crimes 17
Informal Discretionary law making 17
Criminal Law in the U.S. Federal System 19
Criminal Punishment in U.S. Society 20
The era of mass Imprisonment, 1970s–Present 20
Defining “Criminal Punishment” 21
Theories of Criminal Punishment 22
Retribution 22
Prevention 24
D ETERRENCE 25
I NCAPACITATI o N 26
R EHABILITATI o N 26
empirical evaluation of Criminal law Theories 28
The Text-Case Method 28
The Parts of the Case excerpts 30
Briefing the Case excerpts 31
CASE: Carol Anne Bond (Defendant/Petitioner) v. United States (2014) 32
Finding Cases 35
Constitutional
The Principle of Legality 40
The Ban on Ex Post Facto laws 41
The Void-for-Vagueness Doctrine 42
The Aims of the Void-for-Vagueness Doctrine 43
Defining Vagueness 44
CASE: State v. Metzger (1982) 45
The Rule of lenity 46
Proving Guilt in Criminal Cases 47
Proving Criminal Conduct 47
Proof in Justification and Excuse Defenses 48
The Bill of Rights and The Criminal Law 49
Right to “Freedom of Speech” 49
CASE: Commonwealth v. William P. Johnson and Commonwealth v. Gail M. Johnson (2014) 50
Right to “Bear arms” 54
CASE: Woollard v. Gallagher (2013) 57
The Right to Privacy 61
CASE: Lawrence v. Texas (2003) 62
The Constitution and Criminal Punishment 65
Barbaric Punishments 65
Disproportionate Punishments 67
The Death Penalty: “Death Is Different” 68
CASE: Kennedy v. Louisiana (2008) 68
The Death Penalty for Mentally Retarded Murderers 72
The Death Penalty for Juvenile Murderers 73
Life without Parole for Juveniles 75
CASE: State v. Ninham (2011) 76
Prison Sentences 78
CASE: Ewing v. California (2003) 80
The Right to Trial By Jury and Criminal Sentencing 83
CASE: Gall v. U.S. (2007) 86
Chapter 3
the Criminal act: the First principle of Criminal Liability 94
The Elements of Criminal Liability 96
The Criminal Act (Actus Reus): The First Principle of Liability 98
The “Voluntary” act Requirement 99
CASE: State v. Burrell (1992) 100
Sleep Driving 101
CASE: State v. Newman (2013) 102
Epileptic Seizures 106
CASE: People v. Levy (2011) 106
Status, Actus Reus, and the Constitution 110 omissions as Criminal Acts 112
CASE: Commonwealth v. Pestinikas (1992) 114
Possession as a Criminal Act 118
CASE: Williams v. State (2013) 119
Chapter 4
the General principles of Criminal Liability: Mens Rea, Concurrence, ignorance, and Mistake 124
Mens Rea 126
The Complexity of Mens Rea 128
Proving “State of mind” 129
Criminal Intent 129
General and Specific Intent 131
CASE: State v. Fleck (2012) 131
The model Penal Code (mPC) levels of Culpability 133
Purposely 135
CASE: State v. Stark (1992) 135
Knowingly 137
CASE: State v. Jantzi (1982) 138
Recklessly 139
Negligently 140
CASE: Koppersmith v. State (1999) 140
Liability Without Fault (Strict Liability) 142
CASE: State v. Loge (2000) 143
Concurrence 146
Causation 146
Factual Cause 147
legal (“Proximate”) Cause 147
CASE: State v. Bauer (2014) 148
Failure of Proof “Defenses”: Ignorance and Mistake 151
Ignorance of law 152
Mistake of Fact 152
a General Ignorance or mistake “Defense” 152
CASE: State v. Jacobson (2005) 154
morality and Ignorance of the law: empirical Findings 156
Chapter 5
defenses to Criminal Liability i: Justifications 162
Proving Defenses 164
Self-Defense 165
elements of Self-Defense 166
Nonaggressor 166
CASE: State v. Batie (2015) 166
Necessity, Proportionality, and Reasonable Belief 168
CASE: U.S. v. Haynes (1998) 169
CASE: People v. Goetz (1986) 171
Retreat 176
Domestic Violence 177
Cohabitant Rule 177
Battered Women Who Kill Their Abusers 177
CASE: State v. Stewart (1988) 179
Defense of others 186
Defense of Home and Property 186
New “Castle laws” 187
“Right to Defend” or “License to Kill”? 188
Why the Spread of Castle Laws Now? 188
Cases Under New Castle Laws 189
J ACqUELINE GALAS 190
Ro BERT L EE S MILE y, J R 190
S ARBRINDER PANNU 190
U NIDENTIFIED GAS M ART C LERK 191
“Choice of Evils” 192
CASE: Toops v. State (1994) 194
Consent 197
CASE: State v. Shelley (1997) 198
Chapter 6 defenses to Criminal Liability ii: excuses 204
The Insanity Defense 206 history of the Insanity Defense 207
The Insanity Defense: myths and Reality 209
Proving Insanity 210
Tests of Insanity 212
The Right–Wrong Test (mcNaughtan Rule) 212
CASE: Myers III v. State (2015) 213
The Irresistible Impulse Test 219
The Product of Mental Illness Test (Durham Rule) 220
The Substantial Capacity Test (Model Penal Code Test) 220
The Defense of Diminished Capacity 221
The Excuse of Age 222
CASE: State v. K.R.L. (1992) 224
The Defense of Duress 226
The Problem with the Duress Defense 227
The elements of Duress 227
The Defense of Intoxication 228
The Defense of Entrapment 229
Subjective entrapment Test 230
CASE: Oliver v. State (1985) 231
objective entrapment Test 233
Syndrome Defenses 233
Premenstrual Syndrome (PmS) 234
Post-Traumatic Stress Disorder (PTSD) 234
CASE: State v. Belew (2014) 236
Chapter 7
parties to Crime and Vicarious Liability 242
Parties to Crime 244
Participation Before and During the Commission of a Crime 245
accomplice Actus Reus 246
CASE: State v. Ulvinen (1981) 247
accomplice Mens Rea 250
Participation after the Commission of a Crime 251
CASE: State v. Chism (1983) 252
Vicarious Liability 255
Corporate liability 255
History 255
respondeat Superior (“Let the Master Answer”) 257
CASE: State v. Zeta Chi Fraternity (1997) 259
Individual Vicarious liability 262
CASE: City of Waukesha v. Boehnen (2015) 262
CASE: State v. Akers (1979) 265
Chapter 8
inchoate Crimes 270
Attempt 272
attempt law history 273
CASE: Dabney v. State (2004) 274
The Rationales for Criminal attempt law 277
The elements of Criminal attempt law 278
Attempt mens Rea 278
CASE: State v. King (2015) 279
Attempt actus Reus 281
A LL B UT THE L AST ACT T EST 283
“DANGERoUS P Rox IMIT y To SUCCESS” T EST 283
“I NDISPENSABLE E LEMENT ” T EST 283
“U NE qUIVo CALIT y” T EST 284
“P Ro BABLE D ESISTANCE” T EST 284
T HE Mo DEL P ENAL Co DE (MPC) “SUBSTANTIAL S TEPS”
T EST 285
CASE: George Lee Mims, Sr. v. U.S. (1967) 286
Defenses to attempt liability 288
Legal Impossibility 288
CASE: State v. Damms (1960) 290
Voluntary Abandonment 294
CASE: Le Barron v. State (1966) 296
Conspiracy 298
Conspiracy Actus Reus 298
The Agreement 299
The Overt Act 299
Conspiracy Mens Rea 299
Parties to Conspiracy 300
The Criminal objective of the Conspiracy 301
large-Scale Conspiracies 301
CASE: Griffin v. Gipson (2015) 302
The Racketeer Influenced and Corrupt organizations Act (RICo) 307
Prosecuting organized Crime 308
Prosecuting White Collar Crime 309
Prosecuting Government Corruption 309
Punishing RICo offenders 310
CASE: Alexander v. U.S. (1993) 310
Solicitation 312
Solicitation Actus Reus 312
Solicitation Mens Rea 314
CASE: State v. Schleifer (1923) 314
Solicitation Criminal objective 317
Chapter 9
Crimes against persons i:
Murder and Manslaughter 320
Criminal Homicide in Context 322
The Meaning of “Person” or “Human Being” 324
When Does life Begin? 324
When Does life end? 328
Murder 329
history of murder law 329
elements of murder 331
Murder actus Reus 332
Murder mens Rea 332
Kinds and Degrees of Murder 333
First-Degree murder 334
Death Penalty and First-Degree Murder 334
First-Degree Murder mens Rea 335
Proving “Intent to Kill”: The Deadly Weapon Doctrine 337
CASE: State v. Snowden (1957) 338
First-Degree Murder actus Reus 341
CASE: Duest v. State (1985) 341
Second-Degree murder 343
CASE: People v. Thomas (1978) 344
Depraved heart murder 346
Felony murder 346
Corporation murder 349
CASE: People v. O’Neil (1990) 350
Manslaughter 353
Voluntary manslaughter 355
Adequate Provocation 356
“Sudden Heat of Passion” with No “Cooling-Off”
Period 357
Causation 358
P RoVo CATI o N By Wo RDS 358
P RoVo CATI o N By I NTIMATES 359
P RoVo CATI o N By No NVI o LENT HoMoSE x UAL
A DVANCE (NHA) 359
CASE: Commonwealth v. Schnopps (1983) 360
“GAy PANIC” 363
The Emotion–Act Distinction 363
CASE: Commonwealth v. Carr (1990) 364
Involuntary manslaughter 365
Criminal Negligence Manslaughter 367
CASE: State v. Mays (2000) 368
Unlawful Act Manslaughter 370
Doctor-Assisted Suicide 371
Kinds of euthanasia 372
arguments against Doctor-assisted Suicide 373
The Intrinsically Immoral and Wrong Argument 373
The “Slippery Slope” Argument 373
arguments in Favor of Doctor-assisted Suicide 373
Doctor-assisted Suicide and the Criminal law 376
Public opinion and Doctor-assisted Suicide 376
Chapter 10
Crimes against persons ii: Sex offenses, Bodily injury, and personal restraint 380
Sex offenses 382
The New Criminal Sexual Conduct Regime 384
The Law 384
P Roo F BE yo ND A R EAS o NABLE DoUBT 385
P Roo F By Wo RDS AND No NVERBAL
CoMMUNICATI o N 386
The Culture 386
Criminal Sexual Conduct Statutes 387
Definition and Grading 388
Nonconsent, Force, and Resistance 389
Corroboration 389
Victim’s Sexual History 389
Marital Exception 389
The elements of modern Rape law 390
Rape Actus Reus: The Force and Resistance Rule 391
CASE: Commonwealth v. Berkowitz (1992) 393
Ex TRINSIC Fo RCE 393
Do ES “No” A LWAyS M EAN “No”? 396
T HE K AHAN B ERKoWIT z Ex PERIMENT 397
I NTRINSIC Fo RCE 399
CASE: State in the Interest of S.M.I. (2012) 400
The Threat of Force 402
Rape mens Rea 403
Statutory Rape 404
Criminal Sexual Contact 404
CASE: State v. Triestman (2010) 405
Bodily Injury and Threats of Bodily Injury Crimes 407
Battery 407
assault 408
Domestic Violence Crimes 410
CASE: Hamilton v. Cameron (1997) 411
Stalking 415
Antistalking Statutes 415
Stalking actus Reus 416
Stalking mens Rea 416
Stalking Bad Result 417
Cyberstalking 417
CASE: State v. Hoying (2005) 417
Personal Restraint Crimes 421
Kidnapping 422
Kidnapping actus Reus 423
CASE: People v. Allen (1997) 423
Kidnapping mens Rea 425
Grading Kidnapping Seriousness 425
False Imprisonment 426
Chapter 11
Crimes against property 430
History of Criminally Taking other People’s Property 433
larceny and Theft 434
CASE: People v. Lai Lee (2009) 435
White-Collar Crime 438
Federal Mail Fraud 438
CASE: U.S. v. Maze (1974) 439
Ponzi Schemes 442
Civil Liability 445 Robbery 445
Robbery actus Reus (Criminal Act) 446
CASE: State v. Rolon (2012) 447
Robbery mens Rea (Intent) 451
The Degrees of Robbery 451
Receiving Stolen Property 452
Receiving Stolen Property actus Reus 452
Receiving Stolen Property mens Rea 452
CASE: Sonnier v. State (1992) 453
Damaging and Destroying other People’s Property 455
arson 455
Arson actus Reus: Burning 456
Arson mens Rea 457
The Degrees of Arson 457
Criminal mischief 458
Criminal Mischief actus Reus 458
Criminal Mischief mens Rea 458
CASE: Commonwealth v. Mitchell (1994) 459
Invading other People’s Property: Burglary and Criminal Trespass 461
Burglary 461
Burglary actus Reus 462
Circumstance Elements 463
CASE: Jewell v. State (1996) 463
Burglary mens Rea 464
The Degrees of Burglary 465
Criminal Trespass 466
The Elements of Criminal Trespass 466
The Degrees of Criminal Trespass 466
Identity Theft 467
CASE: Flores-Figueroa v. U.S. (2009) 469
Cybercrimes 471
Intellectual Property Crimes 472
CASE: U.S. v. Ancheta (2006) 473
The Dark Net 475
CASE: U.S. v. Ulbricht (2015) 476
Chapter 12
Crimes against public order and Morals 484
Disorderly Conduct 487
history of Disorderly Conduct 487
“quality of Life” Crimes 489
Vagrancy and loitering 490
Vagrancy 490
Loitering 491
Panhandling 492
Gang activity 494
Criminal Law Responses to Gang Activity 494
CASE: City of Chicago v. Morales (1999) 495
Civil Law Responses to Gang Activity 499
Review of Empirical Research on Gangs and Gang Activity 499
CASE: City of Saint Paul v. East Side Boys and Selby Siders (2009) 500
Violent Video Games 501
“Victimless Crimes” 502
history of Victimless Crimes 503
Prostitution 504
The History of Prostitution Laws 504
The Double Standard Today 505
Court Remedies for the Double Standard 506
Local Government Programs Targeting “Johns” 506
C AR Fo RFEITURE 506
D RIVER’S L ICENSE R EVo CATI o N 507
P UBLISHING N AMES IN VARI oUS M EDIA 507
Minor offnses: Public order or Cash Cows? 508
CASE: U.S. Department of Justice v. Civil Rights Division (2015) 510
Chapter 13
Crimes against the State 518
Treason 520
Treason laws and the american Revolution 520
Treason law since the adoption of the U.S. Constitution 522
Sedition, Sabotage, and Espionage 523
Sedition 523
Sabotage 524
espionage 527
The History of the Espionage Act 527
The Espionage Act Today 529
Antiterrorist Crimes 531
“material Support and Resources” to “Terrorists” and Terrorist organizations 532
holder v. humanitarian Law project (2010) 534
Social Media and “Material Support and Resources” 535
CASE: U.S. v. Asher Abid Khan 535
Glossary 544
Bibliography 554
Case Index 564
Index 568
Preface
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 twelfth time. It’s a great source of satisfaction that my modest innovation to the study of criminal law—the text-casebook—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, Twelfth 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 code. But there’s more to their importance than durability; it’s also practical to know and understand them. 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 defendants’ criminal conduct.
So Criminal Law, Twelfth 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 twelfth edition these nowdecided and reported cases, and this new learning, rethinking, and discovery. But obligation doesn’t describe the pleasure that preparing now twelve editions of Criminal Law brings me. It’s thrilling to find cases that illustrate a principle in terms students can understand and that stimulate them to think critically about subjects worth thinking about. It’s that thrill that drives me to make each edition better than the last. I hope it will make my students—and you—more intelligent consumers of the law and social reality of criminal law in the U.S. constitutional democracy.
organization/approach
The chapters in 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.
Chapters 1 through 8 cover the general part of criminal law: the 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 incomplete crimes.
Chapters 9 through 13 cover 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: Chapters 3 and 4 cover the general principles of criminal conduct (criminal act, criminal intent, concurrence, and causation). Chapter 5 covers the defenses of justification, the second step in the analysis of criminal liability. Chapter 6 covers 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 by means of the two kinds of Elements of Crime art. First are criminal conduct crime boxes, consisting of a voluntary criminal act triggered by criminal intent. Second are bad result crimes, consisting of a voluntary criminal act, criminal intent, and causing a criminal harm.
The design of these boxes is consistent throughout the book. The elements boxes 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.
ELEMENTS OF MATERIAL SUPPORT TO TERRORISTS
Conceal or disguise the nature, location, source, or ownership
Changes to the twelfth edition
Criminal Law, Twelfth Edition, includes new case excerpts; an increased selection of relevant legal and social science research; a rich collection of examples to illustrate main points; new chapter-opening vignettes to enhance student relevancy; and numerous new “You Decide” to give students an opportunity to prepare for on-the-job challenges.
For the first time, we have included the “Criminal Law in Focus” feature to highlight current topics of interest in criminal law, such as relevant excerpts from the U.S. Criminal Code, a comparison of the insanity defense myths and reality, and the Oregon Death with Dignity Act. We have also included a running glossary to define terms as each chapter progresses—a tool we think students will find invaluable.
Additionally, the Twelfth Edition includes entirely new sections, including some on such high-profile topics as the ban on carrying concealed guns in churches, mandatory life without parole for juveniles, the duty to intervene in criminal omissions, physician-assisted suicide, “homegrown” (U.S. born and/or longtime resident non–U.S. born) terrorists, and more.
Actus Reus
Mens Rea
Purposely or 2. Knowingly
Circumstance
aid to individual terrorist
Criminal Conduct Material support to terrorists
Throughout the book are also new charts and tables, and all retained graphics are updated to reflect the most recent information available. Here are the highlights of the changes in each chapter.
Chapter 1, Criminal Law and Punishment in U.S. Society: An Overview
NEw
• Vignette “Did he ‘intend’ to cause bodily harm?”
• Introduction “Overcriminalization and mass incarceration” Two hot button issues that affect two aspects of CL12, namely criminal law and punishment
• Figure “Arrests 2013”
• Text Link the general discussion of the breadth and depth of criminal law and punishment to specific chapters in the book.
• Subsections
“Informal Discretionary Law Making” In practice, police, prosecutors, and judges are a source of law making in the vast number of minor crimes, such as drug offenses and disorderly conduct covered in Chapters 2 and 12.
“The Era of Mass Imprisonment, 1970s–Present” Develops the point that U.S. has 5% of world population and 25% of prisoners.
“Empirical Evaluation of Criminal Law Theories” Contains the latest empirical research on retributionists and deterrence theories.
• You Decide “Was the ‘law making’ of the police and prosecutor ethical?”
• Case Excerpt Carole Anne Bond v. United States (2014) “Was the arsenic a ‘chemical weapon?’”
REvisEd
• Table “Selected Crimes and Arrest Statistics, 2013”
Chapter 2, Constitutional Limits on Criminal Law
NEw
• Vignette “Violation of Doctors’ Right to Free Speech?”
• You Decide “Did the longer sentence violate the ban on ex post facto laws?”
• Subsections
—“The Rule of Lenity”
—“Proving Guilt in Criminal Cases”
• Case
Commonwealth v. William P. Johnson and Commonwealth v. Gail M. Johnson (2014) “Is cyberharassment free speech?”
Woollard v. Gallagher (2013) “Does the ‘good and substantial reason’ requirement violate the Second Amendment?”
REvisEd
• Subsection
“Right to ‘Bear Arms’”
—“Prison Sentences”
Chapter 3, The Criminal Act: The First Principle of Criminal Liability
NEw
• Vignette “Did They Have a ‘Legal’ Duty to Act?”
• Section “Sleep Driving”
• Case Excerpts
State v. Newman (2013) “Did ‘sleep driving’ nullify the voluntary act requirement?”
People v. Levy (2011) “Did his conduct ‘include a voluntary act’?”
Williams v. State (2013) “Did she possess cannabis with the intent to sell, manufacture, or deliver it?”
• You Decide
—“Is ‘sleep sex’ a voluntary act?”
—“Did he kill during ‘insulin shock’?”
Chapter 4, The General Principles of Criminal Liability: Mens Rea, Concurrence, Ignorance, and Mistake
NEw
• Section “Failure of Proof ‘Defenses’: Ignorance and Mistake”
• Subsections
—“Ignorance of Law”
—“Mistake of Fact”
—“A General Ignorance of Mistake ‘Defense’”
—“Morality and Ignorance of the Law: Empirical Findings”
• Case Excerpts
State v. Fleck (2012) “Did he intend to inflict bodily harm?”
State v. Bauer (2014) “Did he cause the gunshot wounds?”
State v. Jacobson (2005) “Did he qualify for a failure of proof defense?”
• Criminal Law in Focus
—“Definitions of the Three Kinds of Criminal Liability”
—“MPC Levels of Culpability”
—“Ignorance or Mistake: Model Penal Code, Section 2.04”
• You Decide
“Which court’s decision established the most ethical public policy regarding the control of HIV?”
—“Who’s entitled to the mistake of law defense?”
REvisEd
• “Mens Rea” Major rewrite includes: Major Subsection Rewrites
“Criminal Intent”
“General and Specific Intent”
Chapter 5, Defenses to Criminal Liability I: Justifications
NEw
• Vignette Battered woman defense
• Subsections
—“Cohabitant Rule” Exception to Retreat Rule
“Battered Women Who Kill Their Abusers” Major expansion of the battered woman syndrome and the defense that grew out of it. Also statistics on domestic partner violence
• Case Excerpt State v. Batie (2015) “Did she start the fight with her husband?”
• Criminal Law in Focus
—“Reasonableness and the Battered Woman: Donna Lee Bechtel v. Oklahoma”
—“Alabama Criminal Code Consent Law”
• You Decide
“Do the new castle laws protect the right to defend or provide a license to kill?”
—“Was burglary the lesser evil?”
—“Can she consent to being assaulted?”
—“Can he consent to being shot?”
REvisEd
• Sections
“Proving Defenses” Rewritten to clarify differences between perfect and imperfect defenses and how to prove them.
“Choice of Evils” Rewritten to clarify and improve the elements and history of the “general defense of necessity.”
• Case Excerpt State v. Stewart (1988) Major addition to dissent to expand on battered woman defense evidence.
Chapter 6, Defenses to Criminal Liability II: Excuses
NEw
• Vignette Myers III v. State
• Case Excerpts
Myers III v. State (2015) “Was he guilty but mentally ill?”
State v. Belew (2014) “Were his ‘hidden wounds’ an excuse for shooting police officers?”
• Criminal Law in Focus
—“The Insanity Defense: Popular Myths and Empirical Reality”
—“Competence and Sanity: Critical Differences”
“Juveniles Tried as Adults”
—“Duress Statutes in Three States”
• Figure “Percent of Afghanistan/Iraq War Vets Suffering from PTSD, Depression, and Traumatic Brain Injuries (TBI)”
• You Decide
—“Is it ethical policy to try an eight-year-old for murder?”
REvisEd
• Sections
“The Insanity Defense” Revision to update and focus on the myth (fakers get away with murder) and reality (defendants hardly ever plead insanity, and of those practically none succeed).
“The Defense of Entrapment” Update history to include modern totalitarian government, including Moammar Ghadafi and Kim Jong-un.
“Syndrome Defenses” Substantial new material, including empirical findings on PTS effects on defense as it applies to the “hidden wounds” of returning Afghanistan and Iraq War veterans.
Chapter 7, Parties to Crime and Vicarious Liability
NEw
• Vignette “Was She an Accomplice?”
• Criminal Law in Focus “Common Law Parties to Crime”
• Case Excerpts City of Waukesha v. Boehnen (2015) “Was the owner criminally liable for selling liquor to minors?”
• You Decide “Is it wise public policy to make parents guilty for their children’s crimes?”
Chapter 8, Inchoate Crimes
NEw
• Vignette State v. Damms
• Criminal Law in Focus
—“The Line between ‘Preparation’ and ‘Attempt’”
—“1. Did They Get ‘Very Near’ to Robbing the Clerk?” and “2. Was It ‘Preparation’ or ‘All But the Last Act’?”
—“Why Prosecute Organized Crime under RICO?”
• Case Excerpts
Dabney v. State (2004) “Did he attempt to commit burglary?”
State v. King (2015) “Did he intend to kill?”
Griffin v. Gipson (2015) “Did he conspire to commit murder?”
• You Decide “Should both women be treated equally?”
Chapter 9, Crimes Against Persons I: Murder and Manslaughter
NEw
• Section “Kinds and Degrees of Murder”
• Vignette State v. Snowden
• Criminal Law in Focus
—“Stages of Fetal Development in Feticide Statutes”
“Proving ‘Premeditation’ and ‘Deliberation’”
—“Inherently Dangerous to Life in the Abstract Felonies”
“Four ‘Adequate’ Provocations”
—“Provocation Jury Instruction”
—“Model Penal Code Homicide Sections”
—“Oregon Death with Dignity Act”
• Figure “Violent Crimes, 2013”
• You Decide
—“Is partial birth abortion murder?”
“Was beating him to death with a baseball bat atrocious first-degree murder?”
—“Murder or manslaughter?”
—“Should doctor-assisted suicide be considered murder?”
Chapter 10, Crimes Against Persons II: Sex Offenses, Bodily Injury, and Personal Restraint
NEw
• Vignette “Did he commit a felony sex offense?”
• Section
“Does ‘No’ Always Mean ‘No’?”
—“The Kahan Berkowitz Experiment”
• Case Excerpt
State in the Interest of S.M.I. (2012) “Did he force her to have sexual intercourse?”
State v. Triestman (2010) “Did he commit criminal sexual contact?”
• You Decide
“Is criminal law the best response to promote ethical domestic violence public policy?”
—“Should cyberbullying be a crime?”
• Table
“Perceived Offender Characteristics in Rape and Sexual Assault Victimizations Against Females Ages 18–24 (by post-secondary enrollment status of victim), 1995–2013”
“Rape or Sexual Assault Victimizations Against Females Ages 18 to 24 (reported and not reported to police and reasons for not reporting, by postsecondary enrollment status), 1995–2013”
• Revised
• Major Section Rewrite “Criminal Sexual Conduct Statutes” Added new material on grass roots movement that swept the country and produced a revolution in rape law, especially date rape
Chapter 11, Crimes Against Property
NEw
• Vignette “Was it theft?”
• Subsection “The Dark Net” Focuses on “…a part of the Internet most people have never gone to because it’s an encrypted, hidden underworld that’s home to pornography, black markets, trolls, criminals and extremists.”
• Case Excerpt
People v. Lai Lee (2009) “Was it purse snatching or shoplifting?”
State v. Rolon (2012) “Did he rob or steal from the victim?”
Flores-Figueroa v. U.S. (2009) “Did he ‘knowingly’ use someone else’s identification cards?”
U.S. v. Ulbricht (2015) “Is he a libertarian hero or calculating drug lord?”
• Criminal Law in Focus
—“Madoff Forfeiture Order”
—“‘Purse Snatching’ vs. ‘Robbery’”
—“MPC Criminal Mischief Provision”
—“Grading Burglary”
“Aggravated Identity Theft”
—“The Silk Road in Operation”
• Figure “Total Losses, 2012”
• Table “National Estimates of Intentionally Set Fires and Losses in Residential Buildings”
REvisEd
• Major Section Revision “Cybercrimes”
Chapter 12, Crimes Against Public Order and Morals
NEw
• Section “Minor Offenses: Public Order or Cash Cows?” An investigation of whether police practices promote public order or only generate income for city governments. The section homes in on the Ferguson MO PD and the US DOJ’s reports: one clearing Officer Darren Wilson of shooting Michael Brown and the other condemning the FPD’s use of minor city offenses (jaywalking) to pay for the city government’s operation.
• Case Excerpt U.S. Department of Justice v. Civil Rights Division (2015) “Investigation of the Ferguson Police Department”
• Criminal Law in Focus
—“Model Penal Code Elements of Special Disorderly Conduct Sections”
—“Many Conservatives Are Blowing It on the DOJ Ferguson Report”
REvisEd
• Major Section Revisions
“Violent Video Games” Especially empirical research on the scientific link between violent video games and criminal behavior.
“Prostitution” Reduce coverage of the history of prostitution, and of the “double standard” for johns and sex workers.
• Figure “Total Prostitution Arrests, 2013”
Chapter 13, Crimes Against the State
NEw
• Vignette Social media and cybercrime
• Case Excerpt U.S. v. Asher Abid Khan (2015)
• Criminal Law in Focus
—“Selected Provisions and Definitions of Terrorism in the United States Code”
—“U.S. Criminal Code ‘Material Support and Resources’ Provisions”
• You Decide
—“Did they commit sabotage?”
—“Which should be banned as ‘material support and resources’ to terrorists?”
REvisEd
• Major Section Revision “‘Material Support and Resources’ to ‘Terrorists’ and Terrorist Organizations”
• Section
“The History of the Espionage Act” Streamlined, including other rarely prosecuted crimes against the state.
“The Espionage Act Today” Updated to include espionage cases and punishments up to 2015.
SUPPlemeNTS
resources for instructors
• MindTap Criminal Justice MindTap from Cengage Learning represents a new approach to a highly personalized, online learning platform. A fully online learning solution, MindTap combines all of a student’s learning tools—readings, multimedia, activities, and assessments—into a singular Learning Path that guides the student through the curriculum. Instructors personalize the experience by customizing the presentation of these learning tools for their students, allowing instructors to seamlessly introduce their own content into the Learning Path via “apps” that integrate into the MindTap platform. Additionally, MindTap provides interoperability with major Learning Management Systems (LMS) via support for open industry standards and fosters partnerships with third-party educational application providers to provide a highly collaborative, engaging, and personalized learning experience.
• Online Instructor’s Resource Manual The instructor’s manual, which has been updated and revised by Valerie Bell of Loras College to the Twelfth Edition, includes learning objectives, key terms, a detailed chapter outline, a chapter summary, discussion topics, student activities, and media tools. The learning objectives are correlated with the discussion topics, student activities, and media tools.
• Online Test Bank Each chapter’s test bank contains questions in multiple-choice, true/false, completion, and essay formats, with a full answer key. The test bank is coded to the learning objectives that appear in the main text and includes the page numbers in the main text where the answers can be found. Finally, each question in the test bank has been carefully reviewed by experienced criminal justice instructors for quality, accuracy, and content coverage so instructors can be sure they are working with an assessment and grading resource of the highest caliber.
• Cengage Learning Testing Powered by Cognero This assessment software is a flexible, online system that allows you to import, edit, and manipulate test bank content from the Criminal Law test bank or elsewhere, including your own favorite test questions; create multiple test versions in an instant; and deliver tests from your LMS, your classroom, or wherever you want.
• PowerPoint® Lectures Helping you make your lectures more engaging while effectively reaching your visually oriented students, these handy Microsoft PowerPoint® slides outline the chapters of the main text in a classroom-ready presentation. The PowerPoint® slides are updated to reflect the content and organization of the new edition of the text and feature some additional examples and real-world cases for application and discussion. The PowerPoint® slides were updated for the current edition by Valerie Bell of Loras College.
resources for Students
• MindTap Criminal Justice MindTap from Cengage Learning represents a new approach to a highly personalized, online learning platform. A fully online learning solution, MindTap combines all of a student’s learning tools—readings, multimedia, activities, and assessments—into a singular Learning Path that guides the student through the curriculum. Instructors personalize the experience by customizing the presentation of these learning tools for their students, allowing instructors to seamlessly introduce their own content into the Learning Path via “apps” that integrate into the MindTap platform. Additionally, MindTap
provides interoperability with major Learning Management Systems (LMS) via support for open industry standards and fosters partnerships with third-party educational application providers to provide a highly collaborative, engaging, and personalized learning experience.
aCKNoWleDGemeNTS
Criminal Law, Twelfth Edition (like the other eleven), didn’t get to you by my efforts alone; I had a lot of help. I’m grateful for all those who have provided feedback over the years. Many thanks also to Senior Product Manager Carolyn Henderson Meier and Associate Content Developer Julia White; they and others at Cengage Learning have helped me at every stage of the book.
Additionally, I would like to thank the following reviewers of the Eleventh Edition for providing invaluable feedback and direction for this revision:
• Seth A. Dupuis, Springfield Technical Community College
• Keith E. Johnson, Mansfield University of Pennsylvania
• Daniel Hebert, Springfield Technical Community College
• Andrew Kozal, Northwest State Community College
• Emily Renzelli, West Virginia University
Derek Volke. For five years Derek has enriched my life. First as my student. Second as my TA in all three courses that I’ve taught at the University of Minnesota— Introduction to Criminal Justice, Criminal Law, and Criminal Procedure. Third, he’s been indispensable assistant in preparing Criminal Law, Twelfth Edition. The Learning Objectives, Marginal Key Terms, and the Chapter Summaries are utterly and invaluably his. I can’t count the number of times throughout the manuscript where he added comments like “I think students might understand this better if you worded it this way….” “I think this should be a key term; otherwise students might miss its significance.” “I’m glad you changed this; I think it’ll be easier for students to understand now.” I accepted all of Derek’s suggestions. The result—Criminal Law, Twelfth Edition, for the first time was written with the active participation of a student who used it as a student, and dealt with students’ problems understanding it, when he was a TA. This isn’t to say we “dumbed down” and “spoon-fed” students. We just made a serious effort to write difficult matter in clear, straightforward prose.
What would I do without Doug and Steve? Doug takes me there and gets me here and everywhere, day in and day out, days that now have stretched to 17 years. And my old and dearest friend Steve, who from the days when he watched over our Irish Wolfhounds in the 1970s, to now decades later when he keeps “Frankie” the Standard Poodle, “Kitty” the OSH, me, and a lot more around here in order. And both Steve and Doug do it all while putting up with what my beloved mentor at Cambridge, the late Sir Geoffrey Elton, called my “mercurial temperament.” Only those who really know me can understand how I can try the patience of Job! Friends and associates like these have given Criminal Law, Twelfth Edition, whatever success it enjoys. As for its faults, I own them all.
Joel Samaha Minneapolis
Learning Objectives
1To know the dual nature of the social reality of U.S. criminal law and understand how it reflects both our criminal law and punishment imaginations.
2To understand the differences between criminal and noncriminal sanctions, and to know the purposes of each.
3To understand the various ways to classify crimes and appreciate the legal and social ramifications of these labels.
4To identify, describe, and understand the main sources of criminal law.
5To define and understand what behavior deserves criminal punishment and to understand the social consequences of the era of mass imprisonment.
6To know and understand that the main theories of criminal punishment center on either retribution or prevention and to appreciate the large, complex body of empirical research supporting each.
7To understand the textcase method and how to apply it to the study of criminal law.
An Overview Criminal Law and Punishment in U.S. Society Chapter Outline
CRIMINAL LAW IN U.S. SOCIETY
The Core Felonies
“All the rest” of U.S. Criminal Law: The “Police Power” History of the Police Power Police Power and Public Morals
CRIMES AND NONCRIMINAL LEGAL WRONGS
CLASSIFYING CRIMES
SOURCES OF CRIMINAL LAW
State Criminal Codes
The Model Penal Code (MPC)
Municipal Ordinances
The U.S. Criminal Code
Administrative Agency Crimes
Informal Discretionary Law Making
CRIMINAL LAW IN THE U.S. FEDERAL SYSTEM
CRIMINAL PUNISHMENT IN U.S. SOCIETY
The Era of Mass Imprisonment, 1970s–Present Defining “Criminal Punishment” Theories of Criminal Punishment Retribution Prevention Deterrence Incapacitation Rehabilitation
Empirical Evaluation of Criminal Law Theories
THE TEXT-CASE METHOD
The Parts of the Case Excerpts Briefing the Case Excerpts Finding Cases
Did he “intend” to cause bodily harm?
A man knew he was HIV positive. Despite doctors’ instructions about safe sex and the need to tell his partners before having sex with them, he had sex numerous times with three different women without telling them. Most of the time, he used no protection, but, on a few occasions, he withdrew before ejaculating. He gave one of the women an anti-AIDS drug “to slow down the AIDS.” None of the women contracted HIV.
“Every known organized society has, and probably must have, some system by which it punishes those who violate its most important prohibitions” (Robinson 2008, 1). This book explores, and invites you to think critically about, the answers to the two questions implied in Professor Robinson’s quote:
1. What behavior deserves criminal punishment?
2. What’s the appropriate punishment for criminal behavior?
To introduce you to some possible answers, read the brief summaries presented from real cases that we examine deeper in the remaining chapters. After you read each summary, assign the case to one of the five following categories:
1. Crime
2. Noncriminal wrong (tort)
3. Regulation
4. License
5. Lawful
These categories move across a spectrum of interference with the liberty, privacy, and property interests of individuals. These are precious rights in a free and democratic society. But, so is our need to feel safe and secure, and the need to protect us from others (and maybe even ourselves) who take or threaten to take them away from us. So, ask yourself, “How much does the behavior in the story threaten your need to feel safe and secure?” And, “Is it worth the loss your liberty, privacy, and property that all but option 5 will cost you?”
Don’t worry about whether you know enough about criminal law to decide which category the story belongs in. In fact, try to ignore what you already know; just choose the category you feel best fits the case:
1. Crime. If you put the case into this category, then grade it as very serious, serious, or minor. The idea here is to stamp it with both the amount of disgrace (stigma) you believe a convicted “criminal” should suffer and roughly the kind and amount of punishment you believe the person deserves.
2. Noncriminal Wrong. This is a legal wrong that justifies suing someone and getting money, usually for some personal injury. In other words, name a price that the wrongdoer has to pay to another individual, but don’t stamp it “criminal” (Coffee 1992, 1876–77).
3. Regulation. Use government action—for example, a heavy cigarette tax to discourage smoking—to discourage the behavior (Harcourt 2005, 11–12). In other words, make the price high, but don’t stamp it with the stigma of “crime.”
4. License. Charge a price for it—for example, a driver’s license fee for the privilege to drive—but don’t try to encourage or discourage it. Make the price affordable, and attach no stigma to it.
5. Lawful. Let individual conscience and/or social disapproval condemn it, but create no legal consequences. (You should also choose this option if you believe society should encourage the behavior. A few students occasionally do.)
The Cases
Here are brief highlights from some of the cases you’ll encounter in the remaining chapters.
1. A young man beat a stranger on the street with a baseball bat for “kicks.” The victim died. (Commonwealth v. Golston 1977, “Atrocious Murder” in Chapter 9, p. 343)
2. A wife cheated on her husband for months. He begged his wife not to leave him. She replied, “No, I’m going to court, and you’re going to have to give me all the furniture. You’re going to have to get the hell out of here; you won’t have nothing.” Then, pointing to her crotch, she added, “You’ll never touch this again, because I’ve got something bigger and better for it.” Breaking into tears, he begged some more, “Why don’t you try to save the marriage? I have nothing more to live for.” “Never,” she replied. “I’m never coming back to you.” He “cracked,” ran into the next room, got a
gun, and shot her to death. (Commonwealth v. Schnopps 1983, Chapter 9, “Voluntary Manslaughter,” p. 360)
3. Two robbers met a drunk man in a bar, displaying a wad of money. When the man asked them for a ride, they agreed, drove him out into the country, robbed him, forced him out of the car without his glasses, and drove off. A college student, driving at a reasonable speed, didn’t see the man standing in the middle of the road waving him down, couldn’t stop, and struck and killed him. (People v. Kibbe 1974, Chapter 4, “Proximate Cause,” p. 147)
4. A police officer followed James Newman’s car and observed him making a left-hand turn without signaling or stopping, running a red light, and driving down the middle of a street, straddling the two traffic lanes. The officer activated his overhead lights to initiate a traffic stop and, in response, Newman pulled into a parking lot. Dr. Joshua Ramseyer, a certified neurologist and sleep medicine specialist, was prepared to testify that Newman was “sleep driving.” He emphasized that activities performed while “sleep driving” are unconscious acts. He further noted that sleepwalking resulting in “sleep driving,” while uncommon in the general population, is a well-established phenomenon. (State v. Newman 2013, 302 P.3d 435, Chapter 3, p. 102)
5. A neighbor told an eight-year-old boy and his friend to come out from behind a building and not to play there because it was dangerous. The boy answered belligerently, “In a minute.” Losing patience, the neighbor said, “No, not in a minute; get out of there now!” A few days later, he broke into her house, pulled a goldfish out of its bowl, chopped it into little pieces with a steak knife, and smeared it all over the counter. Then he went into the bathroom, plugged in a curling iron, and clamped it onto a towel. (State v. K.R.L 1992, Chapter 6, “The Excuse of Age,” p. 224)
6. A young man lived in a ground-level apartment with a large window opening onto the building parking lot. At eight o’clock one morning, he stood naked in front of the window eating his cereal in full view of those getting in and out of their cars. (State v. Metzger 1982, Chapter 2, “Defining Vagueness,” p. 45)
7. A man knew he was HIV positive. Despite doctors’ instructions about safe sex and the need to tell his partners before having sex with them, he had sex numerous times with three different women without telling them. Most of the time, he used no protection, but, on a few occasions, he withdrew before ejaculating. He gave one of the women an anti-AIDS drug, “to slow down the AIDS.” None of the women contracted the HIV virus. (State v. Stark 1992, Chapter 4, “MPC Mental Attitudes: Purpose,” p. 135)
8. A woman met a very drunk man in a bar. He got into her car, and she drove him to her house. He asked her for a spoon, which she knew he wanted to use to take drugs. She got it for him and waited in the living room while he went into the bathroom to “shoot up.” He came back into the living room and collapsed; she went back to the bar. The next morning she found him “purple, with flies flying around him.” Thinking he was dead, she told her daughter to call the police and left for work. He was dead. (People v. Oliver 1989, Chapter 3, “Omissions as Acts,” p. 116) ■
CRIMINAL LAW IN U.S. SOCIETY
“Nothing is certain,” Ben Franklin said, “but death and taxes.” Had he lived during our time, Franklin might have added a few other certainties—and almost assuredly among them would have been the concept of “crime.” By this, I am not referring to the rate of violence and unlawful deprivations of property or privacy in the United States, which ebbs and flows from year to year and decade to decade, often coinciding with dips in the economy or spikes in the number of young males in the general population. Instead, it is the troubling phenomenon of continually adding new crimes or more
social reality of U.S. criminal law the dual nature of U.S. criminal law divided into two categories: a small number of serious, core offenses and a large number of lesser crimes, or “everything else”
criminal law imagination the contributions of law, history, philosophy, the social sciences, and sometimes biology to explain the moral desires we wish to impose on the world
severe punishments to the penal code, criminalizing, recriminalizing, and overcriminalizing all forms of conduct, much of it innocuous, to the point of erasing the line between tolerable and unacceptable behavior.
—Erik Luna (2004, 1)
Professor Luna is referring to the social reality of U.S. criminal law, namely that there are two criminal laws. This dual nature of criminal law is the organizing theme and organization of your book. There’s a small group of core offenses and a huge number of crimes we call “all the rest” (Professor Stuntz [2001] calls them “everything else” (512).)
Notice the number of arrests Table 1.1 keyed to the chapters in which they appear. Also, look at the revealing distribution of violent, property, and drug offense arrests depicted in Figure 1.1. They’re the latest numbers available when your book went to press.
Table 1.1 and Figure 1.1 tell you a lot about criminal law in U.S. society. They reflect what we call the criminal law imagination in United States society. What do I mean by “criminal law imagination?” Conduct that reflects our “moral desires— visions of a moral order, yearnings for the comportment of others and ourselves,” and which “we seek to impose . . . on the world” (Harcourt 2005, 10 emphasis added). (I borrowed and tailored the term sociological imagination coined by the American sociologist C. Wright Mills in 1959 to describe the type of insight offered by the discipline of sociology, namely to explain the nature of sociology and its relevance in daily life.)
Table 1.1 Selected Crimes and arrest Statistics, 2013
The core offenses comprise the most serious crimes in two general categories:
• Felonies against persons, which are murder, manslaughter, rape, kidnapping, and robbery
• Felonies against property, which include all forms of felony theft, robbery, arson, and burglary (Chapter 11).
You’ve almost certainly heard of these ancient crimes. These are the “Index” crimes that the FBI tracks in its annual Uniform Crime Reports (UCR). Most people believe they’re morally wrong and that those who commit them deserve criminal punishment. You probably agree. Analyzing the elements of these crimes and their punishment fill up most law school criminal law casebooks, law school criminal law courses, criminal law scholarship—and the book you’re reading (Stuntz 2001, 512). All states and the federal government have criminal codes that both define in detail the elements the prosecution has to prove beyond a reasonable doubt to convict defendants, and prescribe hard punishment (a year or more in prison) for committing them. (We get to the punishment later.)
Notice several other points about the social reality of the handful of core felonies in U.S. criminal law:
1. There are far fewer core offenses and far fewer people committing them (see Table 1.1 and Figure 1.1) than in the rest of the criminal law.
2. Core offenses are ancient.
3. Most have remained remarkably stable in definition. Their elements are pretty much what they were when the judges created them and Blackstone (1769) wrote about them. (But see sex offenses and domestic violence in Chapter 10.)
4. The short list of them has not grown much since Blackstone’s day either. (Motor Vehicle Theft is the only core offense in the FBI Index that was not one of the ancient felonies.)
The core offenses clearly fit within what Professor Bernard Harcourt (2005) calls our “carceral imagination.” The word carceral refers to jail and prison. We call it the
LO1
felonies against persons the core offenses of murder, manslaughter, rape, kidnapping, and robbery
felonies against property the core offenses of felonious theft, robbery, arson, and burglary
hard punishment a sentence of a year or more in prison
punishment imagination crimes that fit within the criminal law imagination and that the law should punish by locking people up
LO1
police power all federal, state, and local governments’ executive, legislative, and judiciary’s power, including uniformed police officers, to carry out and enforce the criminal law
punishment imagination, crimes that fit within the criminal law imagination and that the law should punish by locking up people. Now, let’s turn to “all the rest” of the offenses that make up our criminal law.
“All the rest” of U.S. Criminal Law: The “Police Power”
Most “everything else” offenses derive from what’s known as the government’s police power. Police power includes what you immediately imagined—uniformed police officers enforcing the criminal law. However, it extends much further to encompass all federal, state, and local governments’ executive, legislative, and judiciary’s acts to carry out the “broad public policies regarding public safety, public economy, public property, public morals, and public health” (Novak 1996, 49). It also arguably comprises all of the responsibilities of government listed in the Preamble to the U.S. Constitution:
• Form a more perfect union
• Establish justice
• Insure domestic tranquility
• Provide for the common defense
• Promote the general welfare
• Secure the blessings of liberty to ourselves and our posterity
LO1
HiStOry OF tHe POLice POwer
Sir William Blackstone (1769), in his Commentaries on the Laws of England (most educated eighteenth-century Americans read it), claimed that the king, as the “father of his people” (Blackstone, 169), held the police power. Under the head “public police and economy,” here’s how Blackstone defined the police power:
By the public police . I mean the due regulation and domestic order of the kingdom: whereby the individuals of the state like the members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners: and to be decent, industrious in their respective stations. (162)
During the spring of 1777, a few years after Blackstone’s Commentaries appeared in print, the members of the Continental Congress (the body that coordinated the colonial resistance against Great Britain) were gathering in Philadelphia. They realized their cause was in grave danger. The war was going badly: New York had fallen to the British army. The Hessians and British Redcoats were about to cut off New England. And, the British army was planning to crush the rebellion utterly by taking Philadelphia.
The Revolutionary War generation fought for liberty. However, after the war, they quickly came to fear that their revolution had “unleashed widespread licentiousness, vice, and crime.” They reacted to this fear in two ways. On the positive side, they called on private citizens to “invest liberty in virtue.” Voluntary organizations “spread the gospel of Christian goodness and good citizenship.” Second, they set aside their liberal ideas—individual autonomy, consent, and law—and called on local and state governments to limit or deny liberty to those individuals who appeared to endanger public peace. Legislatures, judges, and other officials responding by exercising the state’s police power to detain, prosecute, and punish wrongdoers. (Kann 2008, 74; emphasis added)
In short, people fought and died to be free from King George III and his detested exercise of police power during the American Revolution, only to replace it with their own officials’ exercise of the same police power. Historian William Novak (1996) has convincingly documented a “powerful government tradition devoted in theory and practice to the vision of a well-regulated society” in the century after the Revolution. He has also established that criminal law was a “key technology in morals and cultural policing” to maintain that regulation (150).
POLice POwer And PubLic mOrALS
“No subject can more closely affect the interest of man considered as an individual, or in a more common and enlarged view, as a member of society, than those laws he may be subject to, and none more certainly than those that concern his liberty and life.” So wrote Jacob Wheeler (1854, 1) in 1854, in the Preface to his history of criminal cases in the Courts of Justice of New York City. Wheeler took a decidedly sociological approach in the cases he collected. He promised his readers that he would focus on the “thousands and tens of thousands of complicated and important relations that grow out of property, liberty, and life” (6). Here’s how he tied these social relations to morals crimes: Man is not only a social, but a reasonable being, not only rational, but moral, and, therefore, accountable. It is in this state we find him, and it is in this state that he is subject to those regulations mankind has adopted for their government, and that we shall attempt to deal with in the work before us.
It is here where those salutary principles of criminal law operate with effect, admonishing, restraining, and punishing the foolish, the rash, and the wicked: binding the parts of society together in one bond of equal justice. (Wheeler 1854, 6; also quoted in Novak 1996, 150)
With this background, I believe you’ve got a good idea of how broad and deep our criminal law imagination is. Broad and deep as it is, our criminal law has its limits, as you learn in:
1. Chapter 2, the constitutional limits imposed by the protections of free speech, the right to possess and use guns; and due process rights to life, liberty, and property
2. Chapter 3, the principle of criminal liability voluntary act requirement
3. Chapter 4, the criminal intent requirement
4. Chapter 5, the justification defenses, such as self-defense and defense home
5. Chapter 6, the excuse defenses, such as insanity and age
6. Chapter 7, the limits imposed on criminal liability for others’ behavior (accomplice) and relationships (vicarious liability)
7. Chapter 8, limits on uncompleted crimes—attempt, solicitation, and conspiracy
8. Chapters 10–12, limits imposed by definitions of crimes against persons, property, and public order and morals
9. Chapter 13, the limits to crimes of international and domestic terrorism, and to immigration crimes
I hope these—and all the other chapters—will help you to understand the criminal law and the social reality of the U.S. criminal law imagination. But, I hope our journey through the criminal law will encourage you also to adopt Criminal Law’s critical approach. If you do, you can formulate your own criminal law imagination, namely how broad and deep it should be, as well as what it is.
Another random document with no related content on Scribd:
medium, a computer virus, or computer codes that damage or cannot be read by your equipment.
1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGESExcept for the “Right of Replacement or Refund” described in paragraph 1.F.3, the Project Gutenberg Literary Archive Foundation, the owner of the Project Gutenberg™ trademark, and any other party distributing a Project Gutenberg™ electronic work under this agreement, disclaim all liability to you for damages, costs and expenses, including legal fees. YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE PROVIDED IN PARAGRAPH
1.F.3. YOU AGREE THAT THE FOUNDATION, THE TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH DAMAGE.
1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a defect in this electronic work within 90 days of receiving it, you can receive a refund of the money (if any) you paid for it by sending a written explanation to the person you received the work from. If you received the work on a physical medium, you must return the medium with your written explanation. The person or entity that provided you with the defective work may elect to provide a replacement copy in lieu of a refund. If you received the work electronically, the person or entity providing it to you may choose to give you a second opportunity to receive the work electronically in lieu of a refund. If the second copy is also defective, you may demand a refund in writing without further opportunities to fix the problem.
1.F.4. Except for the limited right of replacement or refund set forth in paragraph 1.F.3, this work is provided to you ‘AS-IS’, WITH NO OTHER WARRANTIES OF ANY KIND, EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE.
1.F.5. Some states do not allow disclaimers of certain implied warranties or the exclusion or limitation of certain types of damages. If any disclaimer or limitation set forth in this agreement violates the law of the state applicable to this agreement, the agreement shall be interpreted to make the maximum disclaimer or limitation permitted by the applicable state law. The invalidity or unenforceability of any provision of this agreement shall not void the remaining provisions.
1.F.6. INDEMNITY - You agree to indemnify and hold the Foundation, the trademark owner, any agent or employee of the Foundation, anyone providing copies of Project Gutenberg™ electronic works in accordance with this agreement, and any volunteers associated with the production, promotion and distribution of Project Gutenberg™ electronic works, harmless from all liability, costs and expenses, including legal fees, that arise directly or indirectly from any of the following which you do or cause to occur: (a) distribution of this or any Project Gutenberg™ work, (b) alteration, modification, or additions or deletions to any Project Gutenberg™ work, and (c) any Defect you cause.
Section 2. Information about the Mission of Project Gutenberg™
Project Gutenberg™ is synonymous with the free distribution of electronic works in formats readable by the widest variety of computers including obsolete, old, middle-aged and new computers. It exists because of the efforts of hundreds of volunteers and donations from people in all walks of life.
Volunteers and financial support to provide volunteers with the assistance they need are critical to reaching Project
Gutenberg™’s goals and ensuring that the Project Gutenberg™ collection will remain freely available for generations to come. In 2001, the Project Gutenberg Literary Archive Foundation was created to provide a secure and permanent future for Project Gutenberg™ and future generations. To learn more about the Project Gutenberg Literary Archive Foundation and how your efforts and donations can help, see Sections 3 and 4 and the Foundation information page at www.gutenberg.org.
Section 3. Information about the Project Gutenberg Literary Archive Foundation
The Project Gutenberg Literary Archive Foundation is a nonprofit 501(c)(3) educational corporation organized under the laws of the state of Mississippi and granted tax exempt status by the Internal Revenue Service. The Foundation’s EIN or federal tax identification number is 64-6221541. Contributions to the Project Gutenberg Literary Archive Foundation are tax deductible to the full extent permitted by U.S. federal laws and your state’s laws.
The Foundation’s business office is located at 809 North 1500 West, Salt Lake City, UT 84116, (801) 596-1887. Email contact links and up to date contact information can be found at the Foundation’s website and official page at www.gutenberg.org/contact
Section 4. Information about Donations to the Project Gutenberg Literary Archive Foundation
Project Gutenberg™ depends upon and cannot survive without widespread public support and donations to carry out its mission of increasing the number of public domain and licensed works that can be freely distributed in machine-readable form
accessible by the widest array of equipment including outdated equipment. Many small donations ($1 to $5,000) are particularly important to maintaining tax exempt status with the IRS.
The Foundation is committed to complying with the laws regulating charities and charitable donations in all 50 states of the United States. Compliance requirements are not uniform and it takes a considerable effort, much paperwork and many fees to meet and keep up with these requirements. We do not solicit donations in locations where we have not received written confirmation of compliance. To SEND DONATIONS or determine the status of compliance for any particular state visit www.gutenberg.org/donate.
While we cannot and do not solicit contributions from states where we have not met the solicitation requirements, we know of no prohibition against accepting unsolicited donations from donors in such states who approach us with offers to donate.
International donations are gratefully accepted, but we cannot make any statements concerning tax treatment of donations received from outside the United States. U.S. laws alone swamp our small staff.
Please check the Project Gutenberg web pages for current donation methods and addresses. Donations are accepted in a number of other ways including checks, online payments and credit card donations. To donate, please visit: www.gutenberg.org/donate.
Section 5. General Information About Project Gutenberg™ electronic works
Professor Michael S. Hart was the originator of the Project Gutenberg™ concept of a library of electronic works that could be freely shared with anyone. For forty years, he produced and
distributed Project Gutenberg™ eBooks with only a loose network of volunteer support.
Project Gutenberg™ eBooks are often created from several printed editions, all of which are confirmed as not protected by copyright in the U.S. unless a copyright notice is included. Thus, we do not necessarily keep eBooks in compliance with any particular paper edition.
Most people start at our website which has the main PG search facility: www.gutenberg.org.
This website includes information about Project Gutenberg™, including how to make donations to the Project Gutenberg Literary Archive Foundation, how to help produce our new eBooks, and how to subscribe to our email newsletter to hear about new eBooks.
