Essential Criminal Law 2nd Edition – PDF eBook

Essential Criminal Law
2nd Edition
For NBB
Essential Criminal Law
2nd Edition
Matthew Lippman
University of Illinois at Chicago
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Identifiers: LCCN 2016017162 | ISBN 9781506349039 (pbk.: alk. paper)
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Subjects: LCSH: Criminal law--United States.
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Brief Contents
Preface xiii
1. The Nature, Purpose, and Function of Criminal Law 1
2. Constitutional Limitations 21
3. Elements of Crimes 49
4. Parties to Crime 77
5. Attempt, Solicitation, and Conspiracy 91
6. Criminal Defenses: Justifications and Excuses 113
7. Homicide 155
8. Other Crimes Against the Person 177
9. Crimes Against Property 207
10. White-Collar and Organized Crime 243
11. Crimes Against Public Order and Morality 271
12. Crimes Against Social Order and Morality: Alcoholism, Gambling, and Drug Offenses 295
13. Offenses Against Public Administration and the Administration of Justice 323
14. Crimes Against the State 349
Notes 373
Glossary 383
Case Index 397
Subject Index 401
About the Author 423
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Detailed Contents
Preface xiii Statutory Clarity 24

Chapter Organization xiii Clarity 24
Organization of the Text xiii Definite Standards for Law Enforcement 25
Ancillaries xiv Equal Protection 26
Acknowledgments xv Three Levels of Scrutiny 26
The Bill of Rights 28
Nationalization 28
1. The Nature, Purpose, and
Freedom of Speech 29
Function of Criminal Law 1
Overbreadth 32
Introduction 1 Symbolic Speech 32
The Nature of Criminal Law 2 Hate Speech 33
Criminal and Civil Law 2 Freedom of Assembly 34
The Purpose of Criminal Law 3 Time, Place, and Manner Restrictions 34
The Principles of Criminal Law 3 Freedom of Religion 35
Categories of Crime 4 Privacy 35
Felonies and Misdemeanors 4 The Constitutional Right to Privacy 36
Mala in Se and Mala Prohibita 4 The Constitutional Right to Privacy and
Subject Matter 5 Same-Sex Relations Between Consenting
Sources of Criminal Law 5 Adults in the Home 37
The Common Law 6 The Right to Privacy and the
State Criminal Codes 6 Fourth Amendment 38
State Police Power 7 The Right to Bear Arms 39
The Model Penal Code 7 Cruel and Unusual Punishment 40
Federal Statutes 8 Methods of Punishment 40
Constitutional Limitations 9 The Amount of Punishment:
The Criminal Justice Process 9 The Death Penalty 41
The Structure of the Federal and The Amount of Punishment:
State Court Systems 12 Sentences for a Term of Years 43
The Federal Judicial System 12 Criminal Punishment and
State Judicial Systems 17 Status Offenses 43
Precedent 17 Case Analysis 44
Chapter Summary 18 Chapter Summary 46
Chapter Review Questions 19 Chapter Review Questions 47
Legal Terminology 20 Legal Terminology 47
2. Constitutional Limitations 21 3. Elements of Crimes 49

Introduction 22 Introduction 49
Rule of Legality 22 Criminal Acts and Thoughts 50
Bills of Attainder and Ex Post Facto Laws 23 A Voluntary Criminal Act 51
Bills of Attainder 23 Status 53
Ex Post Facto Laws 23 Omissions 55
The Supreme Court and Ex Post Facto Laws 24 The American and European Bystander Rules 55
Possession 58 Parties 104
Mens Rea Criminal Intent 59 The Structure of Conspiracies 105
General and Specific Intent 60 Criminal Objectives 105
Intent Under the Model Penal Code 61 Conspiracy Prosecutions 106
Purposely 61 Case Analysis 109
Knowingly 62 Chapter Summary 111
Recklessly 62 Chapter Review Questions 112
Negligently 63 Legal Terminology 112
Transferred Intent 63
Strict Liability Offenses 64 6. Criminal Defenses:
Concurrence of Act and Intent 65 Justifications and Excuses 113
Causality 68 Introduction 114
Cause in Fact 68 The Prosecutor’s Burden 114
Legal or Proximate Cause 69 Affirmative Defenses 114
Intervening Cause 69 Justifications and Excuses 115
Coincidental Intervening Acts 69 Defenses Based on a Lack of Capacity to
Responsive Intervening Acts 70 Commit a Crime 116
Case Analysis 72 The Insanity Defense 116
Chapter Summary 74 The Right–Wrong Test 118
Chapter Review Questions 74 The Irresistible Impulse Test 118
Legal Terminology 75 The Durham Product Test 119
The Substantial Capacity Test 119
4. Parties to Crime 77 Federal Standard 120
Introduction 77 Burden of Proof 120
Parties to a Crime 78 The Future of the Insanity Defense 121
Actus Reus of Accomplice Liability 79 Diminished Capacity 121
Mens Rea of Accomplice Liability 80 Intoxication 123
Natural and Probable Consequences Doctrine 81 Voluntary Intoxication 123
Accessory After the Fact 82 Involuntary Intoxication 124
The Common Law 82 Age 124
The Elements of Accessory After the Fact 82 Defenses Based on Justification or Excuse 126
Vicarious Liability 85 Necessity 126
Case Analysis 87 Duress 128
Chapter Summary 88 Consent 130
Chapter Review Questions 88 Mistake of Law and Mistake of Fact 131
Legal Terminology 89 Mistake of Law 132
Mistake of Fact 132
Defenses Justifying the Use of Force 133
5. Attempt, Solicitation, and Conspiracy 91 Self-Defense 133
Introduction 91 The Central Components of
Attempt 92 Self-Defense 134
History of Attempt 92 Reasonable Belief 135
Public Policy and Attempt 93 Imminence 136
The Elements of Criminal Attempt 93 Battered Persons 136
Mens Rea of Attempt 94 Excessive Force 137
Actus Reus of Attempt 94 Retreat 137
The Physical Proximity and Substantial Defense of Others 138
Step Tests 95 Defense of the Home 139
Impossibility 95 The Castle Doctrine in Florida 139
Abandonment 97 Execution of Public Duties 142
Solicitation 98 Resisting Unlawful Arrests 143
Public Policy 98 Defenses Based on Governmental Misconduct 143
The Crime of Solicitation 99 Entrapment 144
Conspiracy 102 The Law of Entrapment 144
Actus Reus 103 The Subjective Test 145
Overt Act 103 The Objective Test 145
Mens Rea 103 The Entrapment Defense 146
New Defenses 147 Kidnapping Statutes 198
Some New Defenses 148 Criminal Act 199
The Cultural Defense 149 False Imprisonment 201
Case Analysis 149 Case Analysis 203
Chapter Summary 151 Chapter Summary 204
Chapter Review Questions 152 Chapter Review Questions 205
Legal Terminology 153 Legal Terminology 206
7. Homicide 155 9. Crimes Against Property 207
Introduction 155 Introduction 208

Types of Criminal Homicide 156 Larceny 208
Actus Reus and Criminal Homicide 158 Actus Reus: Trespassory Taking 209
Mens Rea and Criminal Homicide 158 Asportation 209
Murder 159 Property of Another 210
First-Degree Murder 159 Mens Rea 210
Capital and Aggravated First-Degree Murder 161 Grades of Larceny 211
Second-Degree Murder 162 Embezzlement 212
Depraved Heart Murder 163 False Pretenses 214
Felony Murder 164 Actus Reus 214
Manslaughter 167 Mens Rea 215
Voluntary Manslaughter 167 Theft 216
Voluntary Manslaughter Reconsidered 168 Receiving Stolen Property 219
Involuntary Manslaughter 169 Actus Reus 219
Negligent Manslaughter 169 Mens Rea 219
The Beginning of Human Life 170 Forgery and Uttering 221
The End of Human Life 171 Actus Reus 222
The Year-and-a-Day Rule 172 Mens Rea 222
Corpus Delicti 173 Uttering 222
Case Analysis 173 Simulation 222
Chapter Summary 175 Robbery 223
Chapter Review Questions 176 Actus Reus 224
Legal Terminology 176 Mens Rea 225
Concurrence 225
Grading Robbery 225
8. Other Crimes Against the Person 177 Carjacking 227
Introduction 178 Extortion 227
Assault and Battery 178 Burglary 228
The Elements of Battery 178 Breaking 228
Simple and Aggravated Battery 179 Entry 229
Dangerous Weapon Battery 179 Dwelling House 230
Mayhem 180 Dwelling of Another 230
Assault 180 Nighttime 231
Aggravated Assault 181 Intent 231
The Elements of Assault 181 Aggravated Burglary 231
Stalking 183 Do We Need the Crime of Burglary? 232
The Common Law of Rape 185 Trespass 233
The Elements of the Common Law of Rape 186 Arson 235
Rape Reform 187 Burning 235
Punishment and Sexual Assault 188 Dwelling 235
The Actus Reus of Modern Rape 188 Dwelling of Another 235
Mens Rea 190 Willful and Malicious 235
Statutory Rape 192 Grading 236
Withdrawal of Consent 193 Criminal Mischief 237
Rape Shield Statute 193 Actus Reus 237
Rape Trauma Syndrome 195 Mens Rea 238
Sexual Battery 196 Case Analysis 239
Kidnapping 197 Chapter Summary 241
Chapter Review Questions 242 Alcoholism and Juveniles 296
Legal Terminology 242 Public Intoxication 297
Driving and Alcoholism 297
10. White-Collar and Organized Crime 243 Gambling 301
Introduction 244 State Gambling Laws 302
Corporate Criminal Liability 245 Internet Gambling 302
Environmental Crimes 248 Federal Gambling Laws 303
Occupational Safety and Health 250 Controlled Substances 303
Securities Fraud 251 The “War on Drugs” 303
Insider Trading 251 The Evolution of American Antinarcotics
Mail and Wire Fraud 254 Strategy 304
The Travel Act 255 State Antidrug Laws 305
Health Care Fraud 256 Possession of Narcotics and Possession With
Antitrust Violations 257 Intent to Distribute Narcotics 307
Identity Theft 258 Marijuana 312
Access Device Fraud 259 Crystal Meth 315
Money Laundering 259 Prescription Drugs 316
Currency Violations 260 Drug Paraphernalia 316
Tax Crime 261 Assets Forfeiture 317
Computer Crime 261 Drug Testing 318
Theft of Intellectual Property 263 Drug Courts 319
Copyright 264 Office of National Drug Control
Trademark Fraud 264 Policy 319
Theft of Trade Secrets 265 Case Analysis 320
Racketeer Influenced and Corrupt Chapter Summary 321
Organizations 265 Chapter Review Questions 321
Case Analysis 266 Legal Terminology 322
Chapter Summary 268
Chapter Review Questions 270
13. Offenses Against Public Administration
Legal Terminology 270
and the Administration of Justice 323
11. Crimes Against Public Order and Morality 271 Introduction 323
Official Misconduct 324
Introduction 271
Bribery 324
Disorderly Conduct 272
Commercial Bribery 328
Riot 275
Sports Bribery 329
Motor Vehicle Violations 277
Foreign Corrupt Practices Act 329
Public Indecencies: Quality-of-Life Crimes 277
Extortion 330
Vagrancy and Loitering 278
Perjury 330
Homelessness 279
Subornation of Perjury 333
Gangs 281
Obstruction of Justice 334
The Overreach of Criminal Law 282
The Citizen’s Duty to Assist Law
Prostitution 283
Enforcement 335
The Crime of Prostitution 284
Resisting Arrest 335
Legal Regulation of Prostitution 285
Compounding a Crime 336
Obscenity 287
Escape 338
Cruelty to Animals 290
Defenses to Prison Escape 339
Case Analysis 290
Contempt 341
Chapter Summary 292
Direct and Indirect Criminal Contempt 342
Chapter Review Questions 293
Criminal Contempt and Criminal Law 343
Legal Terminology 293
Punishing Criminal Contempt 343
Legislative Contempt 344
12. Crimes Against Social Order and Morality: Case Analysis 345
Alcoholism, Gambling, and Drug Offenses 295 Chapter Summary 346
Introduction 296 Chapter Review Questions 347
Alcoholism 296 Legal Terminology 347
14. Crimes Against the State 349 Combat Immunity 362
Introduction 350 State Terrorism Statutes 362
Treason 350 Immigration 364
Criminal Act and Criminal Intent 351 Violations of Immigration Law 365
Prosecuting Treason 351 State Laws 365
Sedition 352 International Criminal Law 367
Sabotage 353 Case Analysis 368
Espionage 355 Chapter Summary 370
Terrorism 356 Chapter Review Questions 371
Definition of Terrorism 356 Legal Terminology 371
Terrorism Outside the
United States 357 Notes 373
Terrorism Transcending National
Glossary 383
Boundaries 357
Weapons of Mass Destruction 358 Case Index 397
Mass Transportation Systems 358
Subject Index 401
Harboring or Concealing Terrorists 358
Material Support for Terrorism 358 About the Author 423
Preface
E ssential Criminal Law discusses the central elements of common law and statutory crimes. The
text provides a book for faculty who find that cases are challenging for students to read and to
understand and are an ineffective and inefficient tool for learning. The aim of this book is to com-
bine a brief definition of crimes with illustrative examples and with a discussion of larger public
policy concerns. The text is comprehensive in coverage and includes important topics that often
are not included in undergraduate criminal law texts. I hope that nonlawyers as well as lawyers will
find that the book achieves the goal of enhancing teaching and learning in the classroom.
CHAPTER ORGANIZATION
Each chapter is introduced by a vignette that raises a significant issue discussed in the text. The
learning objectives and chapter introductions help students focus on key points in the chapter. In
many instances, following the discussion of a particular crime, the text features a legal equation
that summarizes the law. In many instances, the relevant portion of the Model Penal Code is
reprinted and analyzed. A number of the topics covered in each chapter are followed by a
You Decide section that asks students to apply the material to a new and novel factual scenario.
The answer is available on the book’s study site at study.sagepub.com/lippmaness2e. The book
relates the law to current developments by including Criminal Law in the News and Criminal
Law and Public Policy features. Various chapters also offer charts listing the frequency that
crimes are committed in the fifty states. At the end of each chapter, there is a Case Analysis,
which is an edited version of a case that is relevant to the material discussed in the chapter. The
chapters conclude with a chapter summary and with chapter review questions that are
designed to help students review the material. Legal terminology is listed at the end of each
chapter, and the book also includes a glossary. Cases, statutes, and various learning tools are
included on the study site accompanying the book.
ORGANIZATION OF THE TEXT

Criminal law is one of the most dynamic areas of American law. You only need look at a newspaper
to read about controversies regarding the law of self-defense, marijuana legalization, and sexual
offenses. I have taught criminal law for more than twenty years and have the same excitement in
teaching the topic that I had when I started.
The textbook provides comprehensive coverage of criminal law. It begins with the nature, pur-
pose, function, and constitutional context of criminal law and then covers the basic elements of
criminal responsibility and offenses. The next parts of the textbook discuss crimes against the person
and crimes against property and business. The book concludes with discussions of crimes against
public order and morality, crimes against the administration of justice, and crimes against the state.
•• Nature, Purpose, Function, and Constitutional Context of Criminal Law. Chapter 1 discusses the
nature, purpose, and function of criminal law. This is followed by Chapter 2 that covers the
constitutional limits on criminal law, including due process, equal protection, freedom of
speech, and the right to privacy.
xiii
xiv Essential Criminal Law
•• Principles of Criminal Responsibility. This section of the book covers the foundational elements
of a crime. Chapter 3 discusses criminal acts and criminal intent, concurrence, and causation.
•• Parties, Vicarious Liability, and Inchoate Crimes. The next part of the text discusses the scope of
criminal responsibility. Chapter 4 discusses parties to crime and vicarious liability. Chapter 5
covers the inchoate crimes of attempt, solicitation, and conspiracy.
•• Criminal Defenses. The next section of the text in Chapter 6 discusses defenses to criminal
liability.
•• Crimes Against the Person. This part of the book focuses on crimes against the person. Chapter 7
covers homicide. Chapter 8 discusses assault and battery, criminal sexual conduct, kid
napping, and false imprisonment.
•• Crimes Against Habitation and Property, and White-Collar Crime. Chapter 9 covers crimes
against property, including larceny, embezzlement, and robbery. Chapter 10 discusses
white-collar crime.
•• Crimes Against Public and Social Order and Morality. Chapter 11 focuses on crimes against
public order and morality that threaten the order and stability of the community, including
disorderly conduct, rioting, and vagrancy, and efforts to combat homelessness, gangs, and
prostitution. Chapter 12 covers three other crimes against social order and morality: alco-
holism, gambling, and narcotics.
•• Crimes Against the Administration of Justice. Chapter 13 discusses crimes against the admin-
istration of justice, including bribery, perjury, obstruction of justice, resisting arrest, com-
pounding a crime, and escape.
•• Crimes Against the State. The text concludes in Chapter 14 by discussing treason, sedition,
espionage, and counterterrorism.
ANCILLARIES
Instructor Teaching Site

A password-protected site, available at study.sagepub.com/lippmaness2e, features resources that
have been designed to help instructors plan and teach their courses. These resources include sug-
gested answers to the You Decide questions, reprints of cases and statutes, online appendices,
downloadable tables and figures, and more.
Student Study Site

An open-access study site is available at study.sagepub.com/lippmaness2e. This site includes
eFlashcards, suggested answers to the You Decide questions, reprints of cases and statutes, and
online appendices.
SECOND EDITION
A number of modifications have been made to the second edition.
Text. Material has been included in the text that discusses new developments and that pro-
vides additional illustrative examples.
Opening vignettes. Most chapters include new opening vignettes.
You Decide features. A number of new You Decide boxes have been incorporated into the text.
Features. Most chapters include new Criminal Law in the News, Criminal Law and Public
Policy, and tables.
Cases. New cases have been included in the Case Analysis at the end of most chapters.
Study site. New material has been included on the student study site at study.sagepub.com/
lippmaness2e.
Acknowledgments
I hope that the textbook conveys my passion and enthusiasm for the teaching of criminal law
and contributes to the teaching and learning of this fascinating and vital topic. The book has
been the product of the efforts and commitment of countless individuals who deserve much of
the credit.
I have benefited from the comments and suggestions of colleagues who reviewed the text.
They took the task seriously and greatly improved the text. I owe them a great debt of gratitude.
Stephen A. Brundage College of DuPage

Brian E. Cranny Greenville Technical College
Valencia Davis University of West Florida
Mary Pyle Tyler Junior College
Sheldon H. Rifkin Kennesaw State University
Stephen M. Sherlock California State University, Chico
Kurt D. Siedschlaw University of Nebraska at Kearney
Frank Zotter Jr. School and College Legal Services of California
The people at SAGE are among the most skilled professionals that an author is likely to encounter.
An author is fortunate to publish with SAGE, a publisher that is committed to quality books.
Publisher and Acquisitions Editor Jerry Westby took an active and intense interest in the book
and throughout the writing provided intelligent suggestions and expert direction. In my opinion,
Jerry is unmatched in the field. Laura Kirkhuff as always provided invaluable assistance. Nicole
Mangona deserves full credit for her efficient and effective work on the study site. I would also
like to thank all the expert professionals at SAGE in production and design who contributed their
talents, particularly Production Editor Tracy Buyan, who expertly coordinated the preparation
and publication of this lengthy manuscript. A special thanks as well to Marketing Manager Amy
Lammers. The text was immensely improved by the meticulous, intelligent, and insightful copy-
editing of Melinda Masson.
At the University of Illinois at Chicago, I must mention colleagues Greg Matoesian, John
Hagedorn, Lisa Frohmann, Dennis Judd, Beth Richie, the late Gordon Misner, Laurie Schaffner,
Dagmar Lorenz, Evan McKenzie, Dick Simpson, Amie Schuck, the late Gene Scaramella, Nancy
Cirillo, Natasha Barnes, Bette Bottoms, Dean Astrida Tantillo, and Dennis Rosenbaum. A great debt
of gratitude, of course, is owed to my students, who constantly provide new and creative insights.
I am fortunate to have loyal friends who have provided inspiration and encouragement.
These include my dear friends Wayne Kerstetter, Deborah Allen-Baber, Agata Fijalkowski, Sharon
Savinski, Mindie Lazarus-Black, Kris Clark, Donna Dorney, the late Leanne Lobravico, Sean
McConville, Sheldon Rosing, Bryan Burke, Maeve Barrett Burke, Bill Lane, Kerry Peterson, Ken
Janda, Annamarie Pastore, Jess Maghan, Oneida Meranto, Robin Wagner, Jennifer Woodard, Tom
Morante, and Marianne Splitter. I also must thank the late Ralph Semsker and Isadora Semsker and
their entire family. Dr. Mary Hallberg has continued to be an important source of support in my
life, and the late Lidia Janus remains my true north and inspiration.
xv
xvi Essential Criminal Law
I have two members of my family living in Chicago. My sister, Dr. Jessica Lippman, and niece,
Professor Amelia Barrett, remain a source of encouragement and generous assistance. Finally, the
book is dedicated to my parents, Mr. and Mrs. S. G. Lippman, who provided me with a love of
learning. My late father, S. G. Lippman, practiced law for seventy years in the service of the most
vulnerable members of society. He believed that law was the highest calling and never turned away
a person in need. Law, for him, was a passionate calling to pursue justice and an endless source of
discussion, debate, and fascination.
THE NATURE, PURPOSE,
1 AND FUNC TION OF
CRIMINAL L AW
Learning Objectives
1. Define a crime and distinguish between civil and 5. Understand the stages of the federal criminal
criminal law. justice process.
2. Appreciate the difference between criminal law 6. Know the structure of the federal judicial system.
and criminal procedure.
7. Understand the general structure of state court
3. Know the difference between felonies and mis- systems.
demeanors and the difference between mala in
se and mala prohibita.
4. Appreciate the various sources of criminal law.
INTRODUCTION
The criminal law is the foundation of the criminal who voluntarily engages in a duel with a dangerous
justice system. The law defines the conduct that may weapon or who challenges an individual to a duel. In
lead to an arrest by the police, trial before the courts, Wyoming, you can be arrested for skiing while being
and incarceration in prison. When we think about impaired by alcohol or for opening and failing to close
criminal law, we typically focus on offenses such as a gate in a fence that “crosses a private road or river.”
rape, robbery, and murder. States, however, condemn You can find criminal laws on the books in various
a range of acts in their criminal codes, some of which states punishing activities such as playing dominos
may surprise you. In Alabama, it is a criminal offense on Sunday, feeding an alcoholic beverage to a moose,
to promote or engage in a wrestling match with a bear cursing on a miniature golf course, making love in a
or to train a bear to fight in such a match. A Florida car, or performing a wedding ceremony when either
law states that it is unlawful to possess “any ignited the bride or groom is drunk. In Louisiana, you risk
tobacco product” in an elevator. Rhode Island declares being sentenced to ten years in prison for stealing an
that an individual shall be imprisoned for seven years alligator, whether dead or alive, valued at $1,000.1
1
2 Essential Criminal Law
THE NATURE OF CRIMINAL LAW

Are there common characteristics of acts that are labeled as crimes? How do we define a crime? The
easy answer is that a crime is whatever the law declares to be a criminal offense and punishes with
a penalty. The difficulty with this approach is that not all criminal convictions result in a fine or
imprisonment. Rather than punishing a defendant, the judge may merely warn him or her not to
repeat the criminal act. Most commentators stress that the important feature of a crime is that it is
an act that is officially condemned by the community and carries a sense of shame and humiliation.
Professor Henry M. Hart Jr. defines crime as “conduct which, if . . . shown to have taken place,” will
result in the “formal and solemn pronouncement of the moral condemnation of the community.”2
The central point of Professor Hart’s definition is that a crime is subject to formal condemna-
tion by a judge and jury representing the people in a court of law. This distinguishes a crime from
acts most people would find objectionable that typically are not subject to state prosecution and
official punishment. We might, for instance, criticize someone who cheats on his or her spouse,
but we generally leave the solution to the individuals involved. Other matters are left to institutions
to settle; schools generally discipline students who cheat or disrupt classes, but this rarely results
in a criminal charge. Professional baseball, basketball, and football leagues have their own private
procedures for disciplining players. Most states leave the decision whether to recycle trash to the
individual and look to peer pressure to enforce this obligation.
CRIMINAL AND CIVIL LAW

How does the criminal law differ from the civil law? The civil law is that branch of the law that
protects the individual rather than the public interest. A legal action for a civil wrong is brought by
an individual rather than by a state prosecutor. You may sue a mechanic who breaches a contract
to repair your car, or bring an action against a landlord who fails to adequately heat your apart-
ment. The injury is primarily to you as an individual, and there is relatively little harm to society. A
mechanic who intentionally misleads and harms a number of innocent consumers, however, may
find himself or herself charged with criminal fraud.
Civil and criminal actions are characterized by different legal procedures. For instance, convic-
tion of a crime requires the high standard of proof beyond a reasonable doubt, although responsi-
bility for a civil wrong is established by the much lower standard of proof by a preponderance of
the evidence or roughly 51 percent certainty. The high standard of proof in criminal cases reflects
the fact that a criminal conviction may result in a loss of liberty and significant damage to an indi-
vidual’s reputation and standing in the community.3
The famous eighteenth-century English jurist William Blackstone summarizes the distinction
between civil and criminal law by observing that civil injuries are “an infringement . . . of the civil
rights which belong to individuals . . . public wrongs, or crimes . . . are a breach and violation of
the public rights and duties, due to the whole community . . . in its social aggregate capacity.”
Blackstone illustrates this difference by pointing out that society has little interest in whether an
individual sues a neighbor or emerges victorious in a land dispute. On the other hand, society has
a substantial investment in the arrest, prosecution, and conviction of individuals responsible for
espionage, murder, and robbery.4
The difference between a civil and criminal action is not always clear, particularly with regard
to an action for a tort, which is an injury to a person or to his or her property. Consider the
drunken driver who runs a red light and hits your car. The driver may be sued in tort for negligently
damaging you and your property as well as criminally prosecuted for reckless driving. The purpose
of the civil action is to compensate you with money for the damage to your car and for the physical
and emotional injuries you have suffered. In contrast, the criminal action punishes the driver for
endangering society. Civil liability is based on a preponderance of the evidence standard, while a
criminal conviction carries a possible loss of liberty and is based on the higher standard of guilt
beyond a reasonable doubt. You may recall that former football star O. J. Simpson was acquitted of
murdering Nicole Brown Simpson and Ron Goldman but was later found guilty of wrongful death
in a civil court and ordered to compensate the victims’ families in the amount of $33.5 million.
The distinction between criminal and civil law proved immensely significant for Kansas inmate
Leroy Hendricks. Hendricks was about to be released after serving ten years in prison for molesting
CHAPTER 1 The Nature, Purpose, and Function of Criminal Law 3
two thirteen-year-old boys. This was only the latest episode in Hendricks’s almost thirty-year
history of indecent exposure and molestation of young children. Hendricks freely conceded that
when not confined, the only way to control his sexual urge was to “die.”
Upon learning that Hendricks was about to be released, Kansas authorities invoked the Sexually
Violent Predator Act of 1994, which authorized the institutional confinement of individuals who,
due to a “mental abnormality” or a “personality disorder,” are likely to engage in “predatory acts
of sexual violence.” Following a hearing, a jury found Hendricks to be a “sexual predator.” The U.S.
Supreme Court ruled that Hendricks’s continued commitment was a civil rather than criminal pen-
alty, and that Hendricks was not being unconstitutionally punished twice for the same criminal act
of molestation. The Court explained that the purpose of the commitment procedure was to detain
and to treat Hendricks in order to prevent him from harming others in the future rather than to
punish him.5 Do you think that the decision of the U.S. Supreme Court makes sense?
THE PURPOSE OF CRIMINAL LAW

We have seen that the criminal law primarily protects the interests of society, and the civil law
protects the interests of the individual. The primary purpose or function of the criminal law is to
help maintain social order and stability. The Texas criminal code proclaims that the purpose of
criminal law is to “establish a system of prohibitions, penalties, and correctional measures to deal
with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or
public interests for which state protection is appropriate.”6 The New York criminal code sets out
the basic purposes of criminal law as follows.7
•• Harm. To prohibit conduct that unjustifiably or inexcusably causes or threatens substantial

harm to individuals as well as to society
•• Warning. To warn people both of conduct that is subject to criminal punishment and of the
severity of the punishment
•• Definition. To define the act and intent that is required for each offense
•• Seriousness. To distinguish between serious and minor offenses and to assign the appropriate
punishments
•• Punishment. To impose punishments that satisfy the demands for revenge, rehabilitation,
and deterrence of future crimes
•• Victims. To ensure that the victim, the victim’s family, and the community interests are rep-
resented at trial and in imposing punishments
The next step is to understand the characteristics of a criminal act.
THE PRINCIPLES OF CRIMINAL LAW

The study of substantive criminal law involves an analysis of the definition of specific crimes
(specific part) and of the general principles that apply to all crimes (general part), such as the
defense of insanity. In our study, we will first review the general part of criminal law and then
look at specific offenses. Substantive criminal law is distinguished from criminal procedure.
Criminal procedure involves a study of the legal standards governing the detection, investigation,
and prosecution of crime and includes areas such as interrogations, search and seizure, wiretap-
ping, and the trial process. Criminal procedure is concerned with “how the law is enforced”; crim-
inal law involves “what law is enforced.”
Professors Jerome Hall8 and Wayne R. LaFave9 identify the basic principles that compose the
general part of the criminal law. Think of the general part of the criminal law as the building blocks
that are used to construct specific offenses such as rape, murder, and robbery.
•• Criminal Act. A crime involves an act or failure to act. You cannot be punished for bad
thoughts. A criminal act is called actus reus.
•• Criminal Intent. A crime requires a criminal intent or mens rea. Criminal punishment is ordi-
narily directed at individuals who intentionally, knowingly, recklessly, or negligently harm
other individuals or property.
•• Concurrence. The criminal act and criminal intent must coexist or accompany one another.
•• Causation. The defendant’s act must cause the harm required for criminal guilt, death in the
case of homicide, and the burning of a home or other structure in the case of arson.
•• Responsibility. Individuals must receive reasonable notice of the acts that are criminal so as
to make a decision to obey or to violate the law. In other words, the required criminal act
and criminal intent must be clearly stated in a statute. This concept is captured by the Latin
phrase nullum crimen sine lege, nulla poena sine lege (no crime without law, no punishment
without law).
•• Defenses. Criminal guilt is not imposed on an individual who is able to demonstrate that his
or her criminal act is justified (benefits society) or excused (the individual suffered from a
disability that prevented him or her from forming a criminal intent).
We now turn to a specific part of the criminal law to understand the various types of acts that
are punished as crimes.
CATEGORIES OF CRIME
Felonies and Misdemeanors
There are a number of approaches to categorizing crimes. The most significant distinction is
between a felony and a misdemeanor. A crime punishable by death or by imprisonment for
more than one year is a felony. Misdemeanors are crimes punishable by less than a year in prison.
Note that whether a conviction is for a felony or a misdemeanor is determined by the punishment
provided in the statute under which an individual is convicted rather than by the actual punish-
ment imposed. Many states subdivide felonies and misdemeanors into several classes or degrees to
distinguish between the seriousness of criminal acts. Capital felonies are crimes subject either to
the death penalty or to life in prison in states that do not have the death penalty. The term gross
misdemeanor is used in some states to refer to crimes subject to between six and twelve months
in prison, whereas other misdemeanors are termed petty misdemeanors. Several states desig-
nate a third category of crimes that are termed violations or infractions. These tend to be acts
that cause only modest social harm and carry fines. These offenses are considered so minor that
imprisonment is prohibited. This includes the violation of traffic regulations.
Florida classifies offenses as felonies, misdemeanors, or noncriminal violations. Noncriminal
violations are primarily punishable by a fine or forfeiture of property. The following list shows the
categories of felonies and misdemeanors and the maximum punishment generally allowable under
Florida law:
•• Capital Felony. Death or life imprisonment without parole

•• Life Felony. Life in prison and a $15,000 fine
•• Felony in the First Degree. Thirty years in prison and a $10,000 fine
•• Felony in the Second Degree. Fifteen years in prison and a $10,000 fine
•• Felony in the Third Degree. Five years in prison and a $5,000 fine
•• Misdemeanor in the First Degree. One year in prison and a $1,000 fine
•• Misdemeanor in the Second Degree. Sixty days in prison and a $500 fine
The severity of the punishment imposed is based on the seriousness of the particular offense.
Florida, for example, punishes as a second-degree felony the recruitment of an individual for pros-
titution knowing that force, fraud, or coercion will be used to cause the person to engage in pros-
titution. This same act is punished as a first-degree felony in the event that the person recruited is
under fourteen years old or if death results.10
Mala in Se and Mala Prohibita

Another approach is to classify crime by “moral turpitude” (evil). Mala in se crimes are consid-
ered “inherently evil” and would be evil even if not prohibited by law. This includes murder, rape,
robbery, burglary, larceny, and arson. Mala prohibita offenses are not “inherently evil” and are
only considered wrong because they are prohibited by a statute. This includes offenses ranging
from tax evasion to carrying a concealed weapon, leaving the scene of an accident, and being
drunk and disorderly in public.
Why should we be concerned with classification schemes? A felony conviction can prevent
you from being licensed to practice various professions, prohibit you from being admitted to the
armed forces or joining the police, and prevent you from adopting a child or receiving various
forms of federal assistance. In some states, a convicted felon is still prohibited from voting, even
following release. The distinction between mala in se and mala prohibita is also important. For
instance, the law provides that individuals convicted of a “crime of moral turpitude” may be
deported from the United States.
There are a number of other classification schemes. The law originally categorized crimes that
were considered to be deserving of shame or disgrace as infamous crimes. Individuals convicted
of infamous offenses such as treason (betrayal of the nation) or offenses involving dishonesty were
historically prohibited from appearing as witnesses at a trial.
Subject Matter
This textbook is organized in accordance with the subject matter of crimes, the scheme that is fol-
lowed in most state criminal codes. There is disagreement, however, concerning the classification
of some crimes. Robbery, for instance, involves the theft of property as well as the threat or inflic-
tion of harm to the victim, and there is a debate about whether it should be considered a crime
against property or against the person. Similar issues arise in regard to burglary. Subject matter
offenses are as follows:
•• Crimes Against the State. Treason, sedition, espionage, terrorism (Chapter 14)
•• Crimes Against the Person: Homicide. Homicide, murder, manslaughter (Chapter 7)
•• Crimes Against the Person: Sexual Offenses, and Other Crimes. Rape, assault and battery, false
imprisonment, kidnapping (Chapter 8)
•• Crimes Against Property and Habitation. Larceny, embezzlement, false pretenses, receiving sto-
len property, robbery, burglary, trespassing, arson (Chapter 9)
•• White-Collar Crimes. Corporate and environmental fraud, identity theft, computer crime
(Chapter 10)
•• Crimes Against Public and Social Order and Morality. Disorderly conduct, riot, prostitution,
alcoholism, gambling, narcotics (Chapters 11 and 12)
•• Crimes Against the Administration of Justice. Obstruction of justice, perjury, bribery
(Chapter 13)
The book also covers the general part of criminal law, including the constitutional limits on crim-
inal law (Chapter 2), criminal acts (Chapter 3), criminal intent (Chapter 3), the scope of criminal
liability (Chapters 4 and 5), and defenses to criminal liability (Chapter 6).
SOURCES OF CRIMINAL LAW

We now have covered the various categories of criminal law. The next question to consider is this:
What are the sources of the criminal law? How do we find the requirements of the criminal law?
There are a number of sources of the criminal law in the United States:
•• English and American Common Law. These are English and American judge-made laws and
English acts of Parliament.
•• State Criminal Codes. Every state has a comprehensive written set of laws on crime and
punishment.
•• Municipal Ordinances. Cities, towns, and counties are typically authorized to enact local
criminal laws, generally of a minor nature. These laws regulate the city streets, sidewalks,
and buildings and concern areas such as traffic, littering, disorderly conduct, and domestic
animals.
•• Federal Criminal Code. The U.S. government has jurisdiction to enact criminal laws that are
based on the federal government’s constitutional powers, such as the regulation of interstate
commerce.
•• State and Federal Constitutions. The U.S. Constitution defines treason and together with state
constitutions establishes limits on the power of government to enact criminal laws. A crim-
inal statute, for instance, may not interfere with freedom of expression or religion.
•• International Treaties. International treaties signed by the United States establish crimes such
as genocide, torture, and war crimes. These treaties, in turn, form the basis of federal crimi-
nal laws punishing acts such as genocide and war crimes. These cases are prosecuted in U.S.
courts.
•• Judicial Decisions. Judges write decisions explaining the meaning of criminal laws and deter-
mining whether criminal laws meet the requirements of state and federal constitutions.
At this point, we turn our attention to the common law origins of American criminal law and
to state criminal codes.
The Common Law

The English common law is the foundation of American criminal law. The origins of the common
law can be traced to the Norman conquest of England in 1066. The Norman king, William the
Conqueror, was determined to provide a uniform law for England and sent royal judges through-
out the country to settle disputes in accordance with the common customs and practices of the
country. The principles that composed this common law began to be written down in 1300 in an
effort to record the judge-made rules that should be used to decide future cases.
By 1600, a number of common law crimes had been developed, including arson, burglary,
larceny, manslaughter, mayhem, rape, robbery, sodomy, and suicide. These were followed by crim-
inal attempt, conspiracy, blasphemy, forgery, sedition, and solicitation. On occasion, the king and
Parliament issued decrees that filled the gaps in the common law, resulting in the development of
the crimes of false pretenses and embezzlement. The distinctive characteristic of the common law
is that it is, for the most part, the product of the decisions of judges in actual cases.
The English civil and criminal common law was transported to the new American colonies and
formed the foundation of the colonial legal system that in turn was adopted by the thirteen orig-
inal states following the American Revolution. The English common law was also recognized by
each state subsequently admitted to the Union; the only exception was Louisiana, which followed
the French Napoleonic Code until 1805 when it embraced the common law.11
State Criminal Codes

States in the nineteenth century began to adopt comprehensive written criminal codes. This
movement was based on the belief that in a democracy the people should have the opportunity
to know the law. Judges in the common law occasionally punished an individual for an act
that had never before been subjected to prosecution. A defendant in a Pennsylvania case was
convicted of making obscene phone calls despite the absence of a previous prosecution for this
offense. The court explained that the “common law is sufficiently broad to punish . . . although
there may be no exact precedent, any act which directly injures or tends to injure the public.”12
There was the additional argument that the power to make laws should reside in the elected
legislative representatives of the people rather than in unelected judges. As Americans began to
express a sense of independence, there was also a strong reaction against being so clearly con-
nected to the English common law tradition, which was thought to have limited relevance to
the challenges facing America. As early as 1812, the U.S. Supreme Court proclaimed that federal
courts were required to follow the law established by Congress and were not authorized to apply
the common law.
States were somewhat slower than the federal government to abandon the common law. In a
Maine case in 1821, the accused was found guilty of dropping the dead body of a child into a river.
The defendant was convicted even though there was no statute making this a crime. The court
explained that “good morals” and “decency” all forbid this act. State legislatures reacted against
these types of decisions and began to abandon the common law in the mid-nineteenth century.
The Indiana Revised Statutes of 1852, for example, proclaim that “[c]rimes and misdemeanors
shall be defined, and punishment fixed by statutes of this State, and not otherwise.”13
Some states remain common law states, meaning that the common law may be applied
where the state legislature has not adopted a law in a particular area. The Florida criminal code
states that the “common law of England in relation to crimes, except so far as the same relates to
the mode and degrees of punishment, shall be of full force in this state where there is no existing
provision by statute on the subject.” Florida law further provides that where there is no statute,
an offense shall be punished by fine or imprisonment but that the “fine shall not exceed $500,
nor the term of imprisonment 12 months.”14 Missouri and Arizona are also examples of common
law states. These states’ criminal codes, like that of Florida, contain a reception statute that
provides that the states “receive” the common law as an unwritten part of their criminal law.
California, on the other hand, is an example of a code jurisdiction. The California criminal code
provides that “no act or omission . . . is criminal or punishable, except as prescribed or authorized
by this code.”15 Ohio and Utah are also code jurisdiction states. The Utah criminal code states that
common law crimes “are abolished and no conduct is a crime unless made so by this code . . . or
ordinance.”16
Professor LaFave observes that courts in common law states have recognized a number of
crimes that are not part of their criminal codes, including conspiracy, attempt, solicitation, utter-
ing gross obscenities in public, keeping a house of prostitution, cruelly killing a horse, public ine-
briation, and false imprisonment.17
You also should keep in mind that the common law continues to play a role in the law of code
jurisdiction states. Most state statutes are based on the common law, and courts frequently consult
the common law to determine the meaning of terms in statutes. In the well-known California case
of Keeler v. Superior Court, the California Supreme Court looked to the common law and determined
that an 1850 state law prohibiting the killing of a “human being” did not cover the “murder of a
fetus.” The California state legislature subsequently amended the murder statute to punish “the
unlawful killing of a human being, or a fetus.”18 Most important, our entire approach to criminal
trials reflects the common law’s commitment to protecting the rights of the individual in the
criminal justice process.
State Police Power

Are there limits on a state’s authority to pass criminal laws? Could a state declare that it is a crime
to possess fireworks on July 4? State governments possess the broad power to promote the public
health, safety, and welfare of the residents of the state. This wide-ranging police power includes
the “duty . . . to protect the well-being and tranquility of a community” and to “prohibit acts or
things reasonably thought to bring evil or harm to its people.”19 An example of the far-reaching
nature of the state police power is the U.S. Supreme Court’s upholding of the right of a village
to prohibit more than two unrelated people from occupying a single home. The Supreme Court
proclaimed that the police power includes the right to “lay out zones where family values, youth
values, the blessings of quiet seclusion, and clean air make the area a sanctuary for people.”20
State legislatures in formulating the content of criminal codes have been profoundly influ-
enced by the Model Penal Code.
The Model Penal Code

People from other countries often ask how students can study the criminal law of the United
States, a country with fifty states and a federal government. The fact that there is a significant
degree of agreement in the definition of crimes in state codes is due to a large extent to the Model
Penal Code.
In 1962, the American Law Institute (ALI), a private group of lawyers, judges, and scholars,
concluded after several years of study that despite our common law heritage, state criminal statutes
radically varied in their definition of crimes and were difficult to understand and poorly organized.
The ALI argued that the quality of justice should not depend on the state in which an individual
is facing trial and issued a multivolume set of model criminal laws, The Proposed Official Draft of
the Model Penal Code. The Model Penal Code is purely advisory and is intended to encourage all
fifty states to adopt a single uniform approach to the criminal law. The statutes are accompanied
by a commentary that explains how the Model Penal Code differs from various existing state stat-
utes. Roughly thirty-seven states have adopted some of the provisions of the Model Penal Code,
although no state has adopted every single model law. The states that most closely follow the code
are New Jersey, New York, Pennsylvania, and Oregon. As you read this book, you may find it inter-
esting to compare the Model Penal Code to the common law and to state statutes.21
This book primarily discusses state criminal law. It is important to remember that we also have
a federal system of criminal law in the United States.
Federal Statutes
The United States has a federal system of government. The states granted various powers to the
federal government that are set forth in the U.S. Constitution. This includes the power to regulate
interstate commerce, to declare war, to provide for the national defense, to coin money, to collect
taxes, to operate the post office, and to regulate immigration. The Congress is entitled to make
“all Laws which shall be necessary and proper” for fulfilling these responsibilities. The states retain
those powers that are not specifically granted to the federal government. The Tenth Amendment
to the Constitution states that the powers “not delegated to the United States by the Constitution,
nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
The Constitution specifically authorizes Congress to punish the counterfeiting of U.S. cur-
rency, piracy and felonies committed on the high seas, and crimes against the “Law of Nations”
as well as to make rules concerning the conduct of warfare. These criminal provisions are to be
enforced by a single Supreme Court and by additional courts established by Congress.
The federal criminal code compiles the criminal laws adopted by the U.S. Congress. This
includes laws punishing acts such as tax evasion, mail and immigration fraud, bribery in obtain-
ing a government contract, and the knowing manufacture of defective military equipment. The
Supremacy Clause of the U.S. Constitution provides that federal law is superior to a state law
within those areas that are the preserve of the national government. This is termed the preemp-
tion doctrine. In 2012, in Arizona v. United States, the Supreme Court held that federal immigra-
tion law preempted several sections of an Arizona statute directed at undocumented individuals.22
Several recent court decisions have held that federal criminal laws have unconstitutionally
encroached on areas reserved for state governments. This reflects a trend toward limiting the fed-
eral power to enact criminal laws. For instance, the U.S. government has interpreted its power to
regulate interstate commerce under the Interstate Commerce Clause as providing the author-
ity to criminally punish harmful acts that involve the movement of goods or individuals across
state lines. An obvious example is the interstate transportation of stolen automobiles.
In the past few years, the U.S. Supreme Court has ruled several of these federal laws unconsti-
tutional based on the fact that the activities did not clearly affect interstate commerce or involve
the use of interstate commerce. In 1995, the Supreme Court ruled in United States v. Lopez that
Congress violated the Constitution by adopting the Gun-Free School Zones Act of 1990, which
made it a crime to have a gun in a local school zone. The fact that the gun may have been trans-
ported across state lines was too indirect a connection with interstate commerce on which to base
federal jurisdiction.23
In 2000, the Supreme Court also ruled unconstitutional the U.S. government’s prosecution of
an individual in Indiana who was alleged to have set fire to a private residence. The federal law
made it a crime to maliciously damage or destroy, by means of fire or an explosive, any building
used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.
The Supreme Court ruled that there must be a direct connection between a building and inter-
state commerce and rejected the government’s contention that it is sufficient that a building is
constructed of supplies or serviced by electricity that moved across state lines or that the owner’s
insurance payments are mailed to a company located in another state. Justice Ruth Bader Ginsburg
explained that this would mean that “every building in the land” would fall within the reach of
federal laws on arson, trespass, and burglary.24
In 2006, in Oregon v. Gonzalez, the Supreme Court held that U.S. Attorney General John Ashcroft
lacked the authority to prevent Oregon physicians acting under the state’s Death With Dignity Act
from prescribing lethal drugs to terminally ill patients who are within six months of dying.25
The sharing of power between the federal and state governments is termed dual sovereignty.
An interesting aspect of dual sovereignty is that it is constitutionally permissible to prosecute a
defendant for the same act at both the state and federal levels so long as the criminal charges
slightly differ. You might recall in 1991 that Rodney King, an African American, was stopped by the
Los Angeles police. King resisted and eventually was subdued, wrestled to the ground, beaten, and
handcuffed by four officers. The officers were acquitted by an all-Caucasian jury in a state court
in Simi Valley, California, leading to widespread protest and disorder in Los Angeles. The federal
government responded by bringing the four officers to trial for violating King’s civil right to be
arrested in a reasonable fashion. Two officers were convicted and sentenced to thirty months in
federal prison, and two were acquitted.
We have seen that the state and federal governments possess the power to enact criminal laws.
The federal power is restricted by the provisions of the U.S. Constitution that define the limits on
governmental power.
Constitutional Limitations
The U.S. Constitution and individual state constitutions establish limits and standards for the
criminal law. The U.S. Constitution, as we shall see in Chapter 2, requires that
•• a state or local law may not regulate an area that is reserved to the federal government. A
federal law may not encroach upon state power.
•• a law may infringe upon the fundamental civil and political rights of individuals only in
compelling circumstances.
•• a law must be clearly written and provide notice to citizens and to the police of the conduct
that is prohibited.
•• a law must be nondiscriminatory and may not impose cruel and unusual punishment. A
law also may not be retroactive and punish acts that were not crimes at the time that they
were committed.
The ability of legislators to enact criminal laws is also limited by public opinion. The American
constitutional system is a democracy. Politicians are fully aware that they must face elections and
that they may be removed from office in the event that they support an unpopular law. As we learned
during the unsuccessful effort to ban the sale of alcohol during the Prohibition era in the early twenti-
eth century, the government will experience difficulties in imposing an unpopular law on the public.
Of course, the democratic will of the majority is subject to constitutional limitations. A classic
example is the Supreme Court’s rulings that popular federal statutes prohibiting and punishing
flag burning and desecration compose an unconstitutional violation of freedom of speech.26
THE CRIMINAL JUSTICE PROCESS

A person accused of a felony in the federal criminal justice system progresses through a number
of stages that are outlined below. Keep in mind that this process is somewhat different in the fed-
eral criminal justice system than it is in state systems (see Figure 1.1). The striking feature of the
criminal justice process is the number of procedures that exist to protect individuals against an
unjustified detention, arrest, prosecution, or conviction. Individuals may be weeded out of the
system because there is a lack of evidence that they committed a crime, or because a police officer,
prosecutor, or judge or jury exercises discretion and decides that there is little social interest in
continuing to subject an individual to the criminal justice process. The police may decide not to
arrest an individual; a prosecutor may decide not to file a charge, to file a less serious charge, or
to enter into a plea bargain; the jury may acquit a defendant; or a judge may determine that the
offender merits a lenient sentence.
Criminal investigation. The criminal investigation phase involves detecting and investigating crimi-
nal offenses. The questions for the police are, first, to determine whether a crime has been commit-
ted and, second, to identify who committed the crime. The police may receive reports of a crime
from a victim or from an informant, or they may discover ongoing criminal activity and arrest an
alleged offender at the scene of the crime.
Arrest. Once the police have established that there is probable cause to believe that a crime has
been committed and that there is probable cause to believe that a suspect has committed a crime,
they are authorized to execute an arrest of an individual and to place him or her in custody. The
police may seize a suspect without a warrant or obtain an arrest warrant from a judicial official. A
suspect may be searched at the time of his or her arrest.
Postarrest. An individual who has been subjected to a custodial arrest will be booked at the police
station or jail. This phase involves recording information regarding the arrestee and taking a mug
shot and fingerprints. An individual may be subjected to an inventory of his or her possessions.
Postarrest investigation. Following an individual’s arrest, the police may continue to engage in inves-
tigative activities designed to gather evidence of the suspect’s guilt.
The criminal charge. Prosecutors have the discretion to formally charge suspects with criminal
offenses or to decide not to file formal charges and release suspects from custody. Prosecutors who
decide to pursue cases file complaints that describe the alleged crimes and the relevant sections
of the criminal code. Suspects are then brought for their first appearance before a magistrate (a
lawyer appointed by a district court judge for an eight-year term) and are informed of the charges
against them and of their rights to silence and counsel. Lawyers are appointed for indigents, and bail
is fixed. In the case of a warrantless arrest, the first appearance often is combined with a Gerstein
hearing to determine whether there was probable cause to arrest and to detain the suspect.
Pretrial. The next step in some jurisdictions is a preliminary hearing at which a magistrate deter-
mines whether there is probable cause to believe that the defendant committed the crime charged
in the complaint. The prosecutor presents witnesses who may be cross-examined by the defense.
This allows the defense to learn what some of the evidence is that will be relied on by the prosecu-
tion. The defense also may file a motion for discovery, which is a court order requiring the prose-
cution to turn over information, such as the results of physical examinations or scientific tests, to
the defense. A determination that probable cause is lacking results in the magistrate dismissing the
case. In the majority of states, a determination of probable cause to support the charge results in
the prosecutor filing an information with the clerk of the court and the case being bound over
for trial. In the federal system and in a minority of states, the case is bound over from the prelim-
inary hearing to a grand jury. A finding of probable cause by the grand jury results in the issuance
of an indictment against the defendant. Keep in mind that a prosecutor may decide to dismiss
the complaint by filing a motion of nolle prosequi.
The next step is the arraignment, at which individuals are informed of the charges against
them, advised of their rights, and asked to enter a plea. At this point, plea negotiations between
the defense attorney and prosecution may become more heated, as both sides recognize that the
case is headed for trial.
Pretrial motions. The defense attorney may file various pretrial motions. These include a motion to
dismiss the charges on the grounds that the defendant already has been prosecuted for the crime or
has been denied a speedy trial, a motion to change the location of the trial, or a motion to exclude
unlawfully seized evidence from the trial.
Trial. The accused is guaranteed a trial before a jury in the case of serious offenses. A jury trial may
be waived where the defendant pleads guilty or would prefer to stand trial before a judge. A jury
generally is composed of twelve persons, although six-person juries are used in some states for less
serious felonies and for misdemeanors. Most states require unanimous verdicts despite the fact that
nonunanimous verdicts are permitted under the U.S. Constitution.
Sentencing. Following a criminal conviction, the judge holds a sentencing hearing and establishes
the defendant’s punishment. There are various types of punishments available to the judge, includ-
ing incarceration, fines, and probation. States have adopted a variety of approaches to sentencing
that provide trial court judges with varying degrees of discretion or flexibility.
Appeal. A defendant has the right to file an appeal to a higher court. The U.S. Supreme Court and
state supreme courts generally possess the discretion to hear a second appeal.
Postconviction. Individuals who have been convicted and have exhausted their appeals may file a
motion for postconviction relief in the form of a writ of habeas corpus, claiming that the appeals
courts committed an error.
Figure 1.1 Criminal Justice Flow Chart
What is the sequence of events in the criminal justice system?
Sentencing
Entry into the system Prosecution and pretrial services Adjudication and sanctions Corrections
Refusal to indict
Pardon
Charge dismissed Acquitted Appeal Habeas and Capital
Grand jury Probation
corpus clemency punishment
Revocation
Arraignment Trial Convicted Sentencing
Felonies Prison
Out of system
Guilty plea (registration,
Unsolved or not
arrested
Released without
prosecution
Released without
prosecution
Charges dropped
or dismissed
Charges dropped
or dismissed
notification)
Information
Reported Parole
and
observed Reduction
Intermediate
crime of charge Revocation
sanctions
Investigation
Out of system
Charge
Arrest
Charges
filed
Initial
appearance
Preliminary
hearing
dismissed Acquitted Jail
Bail or detention
hearing
Crime
Information Arraignment Trial Convicted Sentencing Revocation

Out of system
Misdemeanors
Guilty plea
Unsuccessful Probation
diversion
Prosecution as a
juvenile
Out of system
Diversion by law enforcement, prosecutor, or court
aring
Waived to Probation or other
Police nonresidential disposition
e he
juvenile criminal Formal juvenile or youthful
court
Intak
unit offender court processing Adjudication Disposition Revocation
Juvenile
Residential
offenders placement
Out of system
Informal processing
Nonpolice referrals diversion
Released Released Released Aftercare
or diverted or diverted
Revocation
Source: Department of Justice.
Note: This chart gives a simplified view of caseflow through the criminal justice system. Procedures vary among jurisdictions. The weights of the lines are not intended to show
actual size of caseloads.
11
THE STRUCTURE OF THE FEDERAL AND

STATE COURT SYSTEMS
The United States has a federal system of government in which the Constitution divides powers
between the federal government and the fifty state governments. As a result, there are parallel
judicial systems. Federal courts address those issues that the U.S. Constitution reserves to the fed-
eral government, while state courts address issues that are reserved to the states. Federal courts,
for example, have exclusive jurisdiction over prosecutions for treason, piracy, and counterfeiting.
Most common law crimes are matters of state jurisdiction. These include murder, robbery, rape,
and most property offenses. A state supreme court has the final word on the meaning of a state
constitution or state statutes, and the U.S. Supreme Court has no authority to tell a state how to
interpret matters of state concern.
The U.S. Supreme Court has recognized the concurrent jurisdiction or joint authority of
federal and state courts over certain areas, such as claims under federal civil rights law that a law
enforcement official has violated an individual’s civil rights. This means that an action may be
filed in either a state or a federal court.
The federal government and a state government are separate sovereign entities, and an indi-
vidual may be prosecuted for the same crime in both a federal and a state court. For example, Terry
Nichols was convicted in federal court of involvement in the bombing of the federal building in
Oklahoma City and was given life imprisonment. He later was tried in an Oklahoma state court
for the same offense and was convicted of 161 counts of murder and was sentenced to 161 life
sentences. An individual also can be prosecuted in two states so long as some part of the crime was
committed in each state jurisdiction.
The Federal Judicial System

Article III, Section 1 of the U.S. Constitution provides that the judicial power of the United States
shall be vested in one Supreme Court and in such “inferior Courts as the Congress may establish.”
The federal judicial system is based on a pyramid (see Figure 1.2). At the lowest level are nine-
ty-four district courts. These are federal trial courts of general jurisdiction that hear every type of
case. District courts are the workhorses of the federal system and are the venue for prosecutions
of federal crimes. A single judge presides over the trial. There is at least one judicial district in
each state. In larger states with multiple districts, the district courts are divided into geographic
divisions (e.g., Eastern District and Western District). There also are judicial districts in the District
of Columbia, in the Commonwealth of Puerto Rico, and for the territories of the Virgin Islands,
Guam, and the Northern Mariana Islands. Appeals to district courts may be taken from the U.S.
Tax Court and from various federal agencies, such as the Federal Communications Commission.
One or more U.S. magistrate judges are assigned to each district court. A magistrate judge is
authorized to issue search warrants, conduct preliminary hearings, and rule on pretrial motions
submitted by lawyers. Magistrates also may conduct trials for misdemeanors (crimes carrying crim-
inal penalties of less than a year in prison) with the approval of the defendant.
The ninety-four district courts, in turn, are organized into eleven regional circuits (see Figure
1.3) and the District of Columbia. Appeals may be taken from district courts to the court of appeals
in each circuit. The eleven regional circuit courts of appeals have jurisdiction over district courts
in a geographical region. The U.S. Court of Appeals for the Fifth Circuit, for example, covers Texas,
Mississippi, and Louisiana. The U.S. Court of Appeals for the Tenth Circuit encompasses Colorado,
Kansas, New Mexico, Oklahoma, Utah, and Wyoming. The U.S. Court of Appeals for the District of
Columbia hears appeals from cases involving federal agencies. A thirteenth federal circuit court of
appeals has jurisdiction over the Federal Circuit in Washington, D.C., and has nationwide jurisdic-
tion over patent and copyright cases and other specialized appeals involving federal law.
Circuit courts of appeals sit in three-judge panels. In certain important cases, all of the judges
in the circuit will sit en banc. The decisions of a court of appeals are binding on district courts
within the court’s circuit. In the event that an appeal is not taken from a district court decision,
the district court decision will be final. The number of judges in each circuit varies depending
on the size of the circuit. The Ninth Circuit, which includes California, has twenty-eight judges,
while the First Circuit in New England has six. Courts of appeals tend to have differing levels of
Figure 1.2 Federal Court Hierarchy
Supreme Court
- Highest court in the federal system
- Nine justices, meeting in Washington, D.C.
- Appeals jurisdiction through certiorari process
- Limited original jurisdiction over some cases
Courts of Appeal
- Intermediate level in the federal system
- 12 regional “circuit’’ courts, including D.C. circuit
- No original jurisdiction; strictly appellate
District Courts
- Lowest level in the federal system
- 94 judicial districts in 50 states and territories
- No appellate jurisdiction
- Original jurisdiction over most cases
Sources: Administrative Office of the U.S. Courts; Supreme Court photo: © 2009 Jupiterimages Corporation; Courts of Appeal photo:
© iStockphoto/David Lewis; District Courts photo: Public domain.
Figure 1.3 Map of Federal Court of Appeals
Source: Curtis D. Edmonds, J.D. The Center for Assistive Technology and Environmental Access, Georgia Institute of
Technology (GT) College of Architecture (COA), catea@coa.gatech.edu.
respect and influence within the legal community based on the reputation of the judges on the
circuit. One measure of the importance of a circuit is the frequency with which the circuit court’s
decisions are affirmed by the U.S. Supreme Court.
The U.S. Supreme Court sits at the top of the hierarchy of federal and state courts. It is called
the “court of last resort,” because there is no appeal from a decision of the Supreme Court. The
Supreme Court decision sets the precedent and is the binding authority on every state and every
federal court in the United States on the meaning of the U.S. Constitution and on the meaning
of a federal law. In other words, any court in the country that hears a case involving an issue on
which the Supreme Court has ruled is required to follow the Supreme Court’s judgment. Precedent
is based on the judicial practice of following previous opinions or stare decisis, which literally
translates as “to stand by precedent and to stand by settled points.”
The U.S. Supreme Court consists of a chief justice and eight associate justices. The Court
reviews a relatively limited number of cases. In an active year, the Supreme Court may rule on 150
of the 7,000 cases it is asked to consider. These cases generally tend to focus on issues in which
different federal circuit courts of appeals have made different decisions or on significant issues that
demand attention. There are two primary ways for a case to reach the Supreme Court.
• Original jurisdiction. The Court has original jurisdiction over disputes between the
federal government and a state, between states, and in cases involving foreign ministers or
ambassadors. Conflicts between states have arisen in cases of boundary disputes in which states
disagree over which state has a right to water or to natural resources. These types of cases are
extremely rare.
• Writ of certiorari. The Court may hear an appeal from the decision of a court of appeals.
The Supreme Court also will review state supreme court decisions that are decided on the basis of
the U.S. Constitution. Four judges must vote to grant certiorari for a lower court decision to be
reviewed by the Supreme Court. This is termed the rule of four.
The U.S. Supreme Court requires the lawyers for the opposing sides of a case to submit a brief
or a written argument. The Court also conducts oral arguments, in which the lawyers present their
points of view and are questioned by the justices. The party appealing a lower court judgment is
termed the appellant, and the second name in the title of a case typically is the party against
whom the appeal is filed, or the appellee.
Individuals who have been convicted and incarcerated and have exhausted their state appeals
may file a constitutional challenge or collateral attack against their conviction. The first name
in the title of the case on collateral attack is the name of the inmate bringing the case, or the peti-
tioner, while the second name, or respondent, typically is that of the warden or individual in
charge of the prison in which the petitioner is incarcerated. These habeas corpus actions typically
originate in federal district courts and are appealed to the federal court of appeals and then to the
U.S. Supreme Court. In a collateral attack, an inmate bringing the action files a petition for habeas
corpus review, requesting a court to issue an order requiring the state to demonstrate that the peti-
tioner is lawfully incarcerated. The ability of a petitioner to compel the state to demonstrate that
he or she has been lawfully detained is one of the most important safeguards for individual liberty
and is guaranteed in Article I, Section 9, Clause 2 of the U.S. Constitution.
Five of the nine Supreme Court justices are required to agree if they are to issue a majority
opinion. This is a decision that will constitute a legal precedent. A justice may agree with the
majority and want to write a concurring opinion that expresses his or her own view. A justice,
for example, may agree with the majority decision but base his or her decision on a different
reason. In some cases, four justices may agree and, along with various concurring opinions from
other justices, constitute a majority. In this instance, there is a plurality opinion, and no single
majority opinion. A justice who disagrees with the majority may draft a dissenting opinion that
may be joined by other justices who also disagree with the majority decision. In some instances, a
justice may disagree with some aspects of a majority decision while concurring with other parts of
the decision. There are examples of dissenting opinions that many years later attract a majority of
the justices and come to be recognized as the “law of the land.” A fifth type of decision is termed
a per curiam decision. This is an opinion of the entire court without any single justice being
identified as the author.
In the event that a justice has a conflict of interest or is ill and does not participate in a case
or there is an untimely death, the Court will sit with fewer than nine judges. An evenly divided
court such as 4-to-4 is considered a “nondecision,” and the lower court decision remains in effect.
Supreme Court justices and other federal judges are appointed by the U.S. president with the
approval of the U.S. Senate, and they have lifetime appointments so long as they maintain “good
behavior.” The thinking is that this protects judges from political influence and pressure. There
is a question whether Supreme Court justices should have limited tenure, rather than a lifetime
appointment, to ensure that there is a turnover on the Court. The notion that an unelected judge
should hold a powerful court appointment for many years strikes some commentators as inconsis-
tent with democratic principles.
You should also be aware that there are a number of specialized federal courts with jurisdiction
that is limited to narrow questions. Two special courts are the U.S. Court of Federal Claims, which
considers suits against the government, and the Court of International Trade, which sits in New
York and decides international trade disputes and tariff claims. There are also a number of other
“non–Article III” courts. These are courts that the framers of the Constitution did not provide for
in Article III of the U.S. Constitution and that have been created by Congress. These courts include
the U.S. Tax Court, bankruptcy courts, the U.S. Court of Appeals for the Armed Forces and Court
of Appeals for Veterans Claims, and the courts of administrative law judges who decide the cases
of individuals who appeal an administrative agency’s denial of benefits (e.g., a claim for social
security benefits).
Figure 1.4 California State Court System
Supreme Court
1 chief justice and 6 associate justices
Courts of Appeal
6 districts, 19 divisions with 105 justices
First District
5 divisions, 4 justices each —
all in San Francisco = 20
Second District
Capital criminal cases*
7 divisions, 4 justices each in Los Angeles;

1 division, 4 justices in Ventura = 32
Third District
1 division, 11 justices in Sacramento = 11
Fourth District
1 division, 10 justices in San Diego; 1 division, 7 justices
in Riverside; 1 division, 8 justices in Santa Ana = 25
Fifth District
1 division, 10 justices in Fresno = 10
Sixth District
1 division, 7 justices in San Jose = 7
Trial Courts
400 court locations with 2,024 judges;
437 commissioners and referees
* Death penalty cases are automatically appealed from the superior court
directly to the supreme court.
(Judgeship numbers are
current as of 2013) Line of Appeal Line of Discretionary Review
Two types of courts

California has two types of courts: 58 trial courts, one in each county, and appellate courts. Trial courts are the superior courts; appellate
courts are the six districts of the Courts of Appeal and the California Supreme Court. In the trial courts, a judge and sometimes a jury hear
witnesses’ testimony and other evidence and decide cases by applying the relevant law to the relevant facts. In the appellate courts, people
who are not satisfied with a trial court decision appeal cases to judges. The California courts serve nearly 34 million people.
Trial courts. In June 1998, California voters approved Proposition 220, a constitutional amendment that permitted the judges in each county
to merge their superior and municipal courts into a “unified,” or single, superior court. As of February 2001, all of California’s 58 counties
have voted to unify their trial courts.
Superior courts now have trial jurisdiction over all criminal cases including felonies, misdemeanors, and traffic matters. They also have jurisdiction
over all civil cases, including family law, probate, juvenile, and general civil matters. Nearly 8.8 million cases were filed in the trial courts at some
400 court locations throughout the state during 1998–1999. Appeals in limited civil cases (where $25,000 or less is at issue) and misdemeanors
are heard by the appellate division of the superior court. When a small claims case is appealed, a superior court judge decides the case.
Appellate courts
Supreme Court: The state’s highest court, the supreme court, may grant review of cases decided by the courts of appeal. Certain other
cases, such as death penalty appeals and disciplinary cases involving judges and attorneys, are appealed directly to this court. At least four
of the seven justices must agree on decisions of the court. The court’s decisions are binding on all other state courts.
Courts of Appeals: Panels of three justices hear appeals from superior courts, except in death penalty cases, which are appealed
automatically to the supreme court. The courts of appeal determine whether a trial court committed legal error in handling the cases that are
presented on appeal.
Source: Superior Court of California, County of Glenn (2009). Structure of California Court System, http://www.glenncourt.ca.gov/
general_info/teachers/structure.html. Updated by the author.
State Judicial Systems

There is significant variation among the states in the structure of their state court systems. Most
follow the general structure outlined below. The organization of California courts in Figure 1.4
illustrates how one state arranges its judicial system. You may want to compare this with the struc-
ture of the judicial system in your state.
Prosecutions are first initiated or originate in courts of original jurisdiction. There are
two types of courts in which a criminal prosecution may originate. First, there are trial courts of
limited jurisdiction. These local courts are commonly called municipal courts, police courts, or
magistrate’s courts. The courts prosecute misdemeanors and in some instances specified felonies.
Judges in municipal courts also hear traffic offenses, set bail, and conduct preliminary hearings in
felony cases. In most instances, judges preside over criminal cases in these courts without a jury.
A case in which a judge sits without a jury is termed a bench trial. Most jurisdictions also have
specialized courts of limited jurisdiction to hear particular types of cases. These include juvenile
courts, traffic courts, family or domestic courts, small claims courts, and courts that hear offenses
against local ordinances.
Trial courts of general jurisdiction hear more serious criminal and civil cases. In some
states, courts of general jurisdiction have jurisdiction over criminal appeals from courts of lim-
ited jurisdiction. This typically entails a trial de novo, which means that a completely new trial
is conducted that may involve the same witnesses, evidence, and legal arguments that formed
the basis of the first trial. These courts of general jurisdiction commonly are referred to as circuit
courts, district courts, or courts of common pleas; and they have jurisdiction over cases that arise
in a specific county or region of the state. New York curiously names its court of general jurisdic-
tion the supreme court.
Appeals from courts of general jurisdiction are taken in forty of the fifty states to interme-
diate appellate courts. An appeal as a matter of right may be filed to an intermediate court,
which typically sits in panels of two or three judges. The court usually decides the case based on
the transcript or written record of the trial from the lower court. The appeals court does not hear
witnesses or consider new evidence.
The supreme court is the court of last resort in a state system and has the final word on the
meaning of local ordinances, state statutes, and the state constitution. (Note that New York is
different and refers to its court of last resort as the Court of Appeals.) A discretionary appeal
may be available from an intermediate court. This means that the supreme court is not required to
review the decision of a lower court and will do so at its discretion. In those states that do not have
intermediate appellate courts, appeals may be directly taken from trial courts to the state supreme
court. State supreme courts function in a similar fashion to the U.S. Supreme Court and hear every
type of case. The U.S. Supreme Court has no authority to tell a state supreme court how to interpret
the meaning of its state constitution.
State court judges are selected using a variety of procedures. Some states elect judges in a
partisan election in which judges run under the label of a political party, while other states
hold nonpartisan elections in which judges are not identified as belonging to a political party.
In other states, judges are elected by the state legislature. A fourth approach is appointment
by the governor with the consent of the legislature. The so-called Missouri Plan provides for
appointment by the governor, and following a judge’s initial period of judicial service, the
electorate is asked whether to retain or to reject the judge’s continuation in office. A minority
of states provide for the lifetime appointment of judges. Most states limit the length of the
judge’s term in office. In many states, different procedures are used for different courts. There
is a continuing debate over whether judges should be elected or appointed based on merit and
qualifications.
PRECEDENT
We have seen that courts follow stare decisis, which means that once a court has established a
legal principle, this rule constitutes a precedent that will be followed by courts in future cases that
involve the same legal issue. The advantage of precedent is that courts do not have to reinvent the
wheel each time that they confront an issue and, instead, are able to rely on the opinion of other
judges. A judgment that is based on precedent and the existing law also takes on credibility and
is likely to be respected and followed. Precedent is merely the method that all of us rely on when
undertaking a new challenge: We ask how other people went about doing the same task.
Courts have different degrees of authority in terms of precedent. As noted, U.S. Supreme Court
decisions constitute precedent for all other courts in interpreting the U.S. Constitution and federal
laws. Circuit courts of appeals, U.S. district courts, and state courts are bound by Supreme Court
precedent. Circuit courts of appeals and state supreme courts establish binding precedents within
their territorial jurisdictions. In other words, a state supreme court decision constitutes precedent
for all courts within the state.
What if there is no precedent? A case that presents an issue that a court has never previously
decided is termed a case of first impression. In these instances, a court will look to see how other
courts have decided the issue. These other court decisions do not constitute precedent, but they are
viewed as persuasive authority, or cases to be considered in reaching a decision. For example, a
federal court of appeals will look to see how other courts of appeals have decided an issue and will
view these decisions as persuasive authority rather than as binding authority.
A decision of the Supreme Court of California has binding authority on all lower courts in
California. The decision of a lower-level California court that fails to follow precedent likely will
be appealed and reversed by the Supreme Court of California. The decisions of the Supreme Court
of California do not have binding authority on courts outside of California, but they may be con-
sulted as persuasive authority. Courts are viewed as carrying different degrees of status within the
legal world in regard to their persuasive authority. For example, the U.S. Court of Appeals for the
Second Circuit in New York is viewed as particularly knowledgeable on financial matters, because
the judges are experienced in deciding cases involving Wall Street, banking, and finance. Courts
are reluctant to overturn precedents, although this does occur on rare occasions. A court may
avoid a precedent by distinguishing the facts of the case that the judges are deciding from the facts
involved in the case that constitutes a precedent.
CHAPTER SUMMARY
Criminal law is the foundation of the criminal jus- opportunity to obey or to violate the law. Individuals
tice system. The law defines the acts that may lead must also be given the opportunity at trial to pres-
to arrest, trial, and incarceration. We typically think ent defenses (justifications and excuses) to a criminal
about crime as involving violent conduct, but in fact a charge.
broad variety of acts are defined as crimes. The criminal law distinguishes between felonies
Criminal law is best defined as conduct that if and misdemeanors. A crime punishable by death or
shown to have taken place will result in the “formal by imprisonment for more than one year is a felony.
and solemn pronouncement of the moral condem- Other offenses are misdemeanors. Offenses are fur-
nation of the community.” Civil law is distinguished ther divided into capital and other grades of felonies
from criminal law by the fact that it primarily protects and into gross and petty misdemeanors. A third level
the interests of the individual rather than the interests of offenses are violations or infractions, acts that are
of society. punishable by fines.
The purpose of criminal law is to prohibit conduct Another approach is to classify crime in terms of
that causes harm or threatens harm to the individual “moral turpitude.” Mala in se crimes are considered
and to the public interest, to warn people of the acts “inherently evil,” and mala prohibita crimes are not
that are subject to criminal punishment, to define inherently evil and are only considered wrong because
criminal acts and intent, to distinguish between seri- they are prohibited by statute.
ous and minor offenses, to punish offenders, and In this textbook, crimes are categorized in accor-
to ensure that the interests of victims and the pub- dance with the subject matter of the offense, the
lic are represented at trial and in the punishment of scheme that is followed in most state criminal codes.
offenders. This includes crimes against the state, crimes against
In analyzing individual crimes, we focus on sev- the person, crimes against habitation, crimes against
eral basic concerns that compose the general part of property, crimes against public order, and crimes
the criminal law. A crime is composed of a concur- against the administration of justice.
rence between a criminal act (actus reus) and criminal There are a number of sources of American criminal
intent (mens rea) and the causation of a social harm. law. These include the common law, state and federal
Individuals must be provided with notice of the acts criminal codes, the U.S. and state constitutions, inter-
that are criminally condemned in order to have the national treaties, and judicial decisions. The English
common law was transported to the United States and systems. Federal courts address those issues that the
formed the foundation for the American criminal stat- U.S. Constitution reserves to the federal government,
utes adopted in the nineteenth and twentieth centuries. while state courts address issues that are reserved to
Some states continue to apply the common law in those the states. The federal judicial system is based on a pyr-
instances in which the state legislature has not adopted amid of authority. At the lowest level are ninety-four
a criminal statute. In code jurisdiction states, however, district courts. District courts are the workhorses of the
crimes are punishable only if incorporated into law. federal system and are the venue for prosecutions of
States possess broad police powers to legislate federal crimes. The ninety-four district courts, in turn,
for the public health, safety, and welfare of the resi- are organized into eleven regional circuits. There is also
dents of the state. The drafting of state criminal stat- a U.S. Court of Appeals for the District of Columbia. A
utes has been heavily influenced by the American thirteenth U.S. court of appeals is the Federal Circuit
Law Institute’s Model Penal Code, which has helped in Washington, D.C. Appeals may be taken from dis-
ensure a significant uniformity in the content of crim- trict courts to the court of appeals in each circuit. The
inal codes. U.S. Supreme Court sits at the top of the hierarchy of
The United States has a system of dual sovereignty federal courts and may grant certiorari and hear discre-
in which the state governments have provided the fed- tionary appeals from circuit courts. The Supreme Court
eral government with the authority to legislate various is called the “court of last resort,” because there is no
areas of criminal law. The Supremacy Clause provides appeal from a decision of the Court. A Supreme Court
that federal law takes precedence over state law in the decision sets precedent and has binding authority on
areas that the U.S. Constitution explicitly reserves every state and every federal court in the United States
to the national government. There is a trend toward with respect to the meaning of the U.S. Constitution
strictly limiting the criminal law power of the federal and on the meaning of federal laws.
government. The U.S. Supreme Court, for example, There is significant variation in the structure of
has ruled that the federal government has unconstitu- state court systems. Prosecutions are first initiated
tionally employed the Interstate Commerce Clause to in courts of original jurisdiction. In courts of limited
extend the reach of federal criminal legislation to the jurisdiction, misdemeanors and specified felonies are
possession of a firearm adjacent to schools. prosecuted. In trial courts of general jurisdiction, more
The authority of the state and federal govern- serious criminal and civil cases are heard. In some
ments to adopt criminal statutes is limited by the states, courts of general jurisdiction have jurisdiction
provisions of federal and state constitutions. For over criminal appeals from courts of limited jurisdic-
instance, laws must be drafted in a clear and nondis- tion. Appeals from courts of general jurisdiction are
criminatory fashion and must not impose retroactive taken in most states to intermediate appellate courts.
or cruel or unusual punishment. The federal and state The state supreme courts are the courts of last resort in
governments possess the authority to enact criminal each state and have the final word on the meaning of
legislation only within their separate spheres of con- local ordinances, state statutes, and the state constitu-
stitutional power. tion. A discretionary appeal is available from interme-
A criminal felony in the federal criminal justice diate courts to the state supreme court.
system progresses through a number of stages. A case Courts have different degrees of authority in terms
may begin with a police investigation and may not of precedent. As noted, U.S. Supreme Court decisions
conclude until the individual’s claim for postconvic- constitute precedent for all other courts in interpreting
tion relief is exhausted. A striking feature of the crim- the U.S. Constitution and federal laws. Circuit courts
inal justice process is the number of procedures that of appeals, district courts, and state courts are bound
exist to protect individuals against unjustified deten- by U.S. Supreme Court precedent. Circuit courts of
tion, arrest, prosecution, and conviction. appeals and state supreme courts establish binding
The United States has a federal system of govern- precedents within their territorial jurisdictions. In
ment in which the U.S. Constitution divides powers those instances in which there is no precedent, an
between the federal government and the fifty state appellate court may look to other coequal courts for
governments. As a result, there are parallel judicial persuasive authority.
CHAPTER REVIEW QUESTIONS
1. Define crime. 4. Is there a difference between criminal law and

criminal procedure? Distinguish between the spe-
2. Distinguish between criminal and civil law. cific and general parts of the criminal law.
Distinguish between a criminal act and a tort.
5. List the basic principles that compose the general
3. What is the purpose of criminal law? part of the criminal law.
6. Distinguish between felonies, misdemeanors, cap- 11. What is the legal basis for federal criminal law?
ital felonies, gross and petty misdemeanors, and Define the preemption doctrine and dual sover-
violations. eignty. What is the significance of the Interstate
Commerce Clause?
7. What is the difference between mala in se and
mala prohibita crimes? 12. What are the primary sources of criminal law?
How does the U.S. Constitution limit the criminal
8. Discuss the development of the common law.
law?
What do we mean by common law states and
code jurisdiction states? 13. Outline the steps in the criminal justice system.
9. Discuss the nature and importance of the state 14. Describe the organization of the federal and state
police power. judicial systems.
10. Why is the Model Penal Code significant? 15. What is the role of precedent in judicial decision
making?
LEGAL TERMINOLOGY
appellant discretionary appeal Model Penal Code

appellee dissenting opinion original jurisdiction
bench trial dual sovereignty per curiam
binding authority en banc persuasive authority
brief federal criminal code petitioner
capital felony felony petty misdemeanor
certiorari first impression plurality opinion
civil law Gerstein hearing police power
code jurisdiction gross misdemeanor precedent
collateral attack indictment preemption doctrine
common law crimes infamous crimes reception statute
common law states information respondent
concurrent jurisdiction infraction rule of four
concurring opinion intermediate appellate courts stare decisis
courts of general jurisdiction Interstate Commerce Clause substantive criminal law
courts of limited jurisdiction magistrate Supremacy Clause
courts of original jurisdiction majority opinion tort
crime mala in se trial de novo
criminal procedure mala prohibita violation
defendant misdemeanor
CRIMINAL LAW ON THE WEB
Visit study.sagepub.com/lippmaness2e to access additional study tools including suggested answers to

the You Decide questions, reprints of cases and statutes, online appendices, and more!
CONSTITUTIONAL
2 LIMITATIONS
Did Elonis’s Facebook post constitute Learning Objectives

a criminal threat?
1. Know the rule of legality.
Anthony Douglas Elonis . . . began “listening to more vio-
lent music” and posting self-styled “rap” lyrics inspired 2. Appreciate the distinction between bills of attain-
by the music. Eventually, Elonis changed the user name der and ex post facto laws.
on his Facebook page from his actual name to a rap-style
nom de plume, “Tone Dougie,” to distinguish himself from 3. Understand the importance of statutory clarity
his “on-line persona.” The lyrics Elonis posted as “Tone and know the legal test for identifying laws that
Dougie” included graphically violent language and imag- are void for vagueness.
ery. This material was often interspersed with disclaimers
that the lyrics were “fictitious,” with no intentional “resem- 4. Know the three levels of scrutiny under the Equal
blance to real persons.” Elonis posted an explanation to Protection Clause.
another Facebook user that “I’m doing this for me. My writ-
ing is therapeutic.” . . . Elonis posted a photograph of him- 5. Appreciate the importance of freedom of expres-
self and a co-worker at a “Halloween Haunt” event . . . In sion and the categories of expression that are
the photograph, Elonis was holding a toy knife against his not protected by the First Amendment.
co-worker’s neck, and in the caption Elonis wrote, “I wish.”
. . . Elonis’s posts frequently included crude, degrading, 6. Understand the constitutional basis for the right
and violent material about his soon-to-be ex-wife. Shortly to privacy and the type of acts that are protected
after he was fired, Elonis posted an adaptation of a satiri- within the “zone of privacy.”
cal sketch that he and his wife had watched together. . . .
[A] comedian explains that it is illegal for a person to say 7. Know how the Supreme Court’s interpretation of
he wishes to kill the President, but not illegal to explain the Second Amendment right to bear arms has
that it is illegal for him to say that. When Elonis posted evolved in the past few years.
the script of the sketch, however, he substituted his
wife for the President. . . . (Elonis v. United States, 575 8. Appreciate the meaning of the Eighth Amendment
U.S. __ [2015]) prohibition on cruel and unusual punishment.
In this chapter, learn about criminal threats and free-

dom of expression.
21
INTRODUCTION
In the American democratic system, various constitutional provisions limit the power of the
federal and state governments to enact criminal statutes. For instance, a statute prohibiting
students from criticizing the government during a classroom discussion would likely violate the
First Amendment to the U.S. Constitution. A law punishing individuals engaging in “unpro-
tected” sexual activity, however socially desirable, may unconstitutionally violate the right to
privacy.
Why did the framers create a constitutional democracy, a system of government based on
a constitution that limits the powers of the government? The Founding Fathers were profoundly
influenced by the harshness of British colonial rule and drafted a constitution designed to protect
the rights of the individual against the tyrannical tendencies of government. They wanted to
ensure that the police could not freely break down doors and search homes. The framers were also
sufficiently wise to realize that individuals required constitutional safeguards against the political
passions and intolerance of democratic majorities.
The limitations on government power reflect the framers’ belief that individuals possess natu-
ral and inalienable rights, and that these rights may only be restricted when absolutely necessary
to ensure social order and stability. The stress on individual freedom was also practical. The framers
believed that the fledgling new American democracy would prosper and develop by freeing indi-
viduals to passionately pursue their hopes and dreams.
At the same time, the framers were not wide-eyed idealists. They fully appreciated that individ-
ual rights and liberties must be balanced against the need for social order and stability. The striking
of this delicate balance is not a scientific process. A review of the historical record indicates that,
at times, the emphasis has been placed on the control of crime and, at other times, stress has been
placed on individual rights.
Chapter 2 describes the core constitutional limits on the criminal law and examines the bal-
ance between order and individual rights. Do you believe that greater importance should be placed
on guaranteeing order or on protecting rights? You should keep the constitutional limitations
discussed in this chapter in mind as you read the cases in subsequent chapters. The topics covered
in the chapter are as follows:
•• The first principle of American jurisprudence is the rule of legality.

•• Constitutional constraints include the following:
{{Bills of attainder and ex post facto laws
{{Statutory clarity
{{Equal protection
{{Freedom of speech
{{Freedom of religion
{{Privacy
{{The right to bear arms
{{Cruel and unusual punishment
RULE OF LEGALITY
The rule of legality has been characterized as “the first principle of American criminal law and
jurisprudence.”1 This principle was developed by common law judges and is interpreted today
to mean that an individual may not be criminally punished for an act that was not clearly con-
demned in a statute prior to the time that the individual committed the act. The doctrine of legal-
ity is nicely summarized in the Latin expression nullum crimen sine lege, nulla poena sine
lege, meaning “no crime without law, no punishment without law.” The doctrine of legality is
reflected in two constitutional principles governing criminal statutes:
•• the constitutional prohibition on bills of attainder and ex post facto laws, and
•• the constitutional requirement of statutory clarity.
CHAPTER 2 Constitutional Limitations 23
BILLS OF ATTAINDER AND EX POST FACTO LAWS

Article I, Sections 9 and 10 of the U.S. Constitution prohibit state and federal legislatures from
passing bills of attainder and ex post facto laws. James Madison characterized these provisions as a
“bulwark in favor of personal security and personal rights.”
Bills of Attainder
A bill of attainder is a legislative act that punishes an individual or a group of persons without
the benefit of a trial. The constitutional prohibition of bills of attainder was intended to safeguard
Americans from the type of arbitrary punishments that the English Parliament directed against
opponents of the Crown. The Parliament disregarded the legal process and directly ordered that
dissidents should be imprisoned, executed, or banished and forfeit their property.
The prohibition of a bill of attainder was successfully invoked in 1946 by three members of
the American Communist Party who were excluded by Congress from working for the federal gov-
ernment.2 In 1965, in United States v. Brown, the U.S. Supreme Court held that a law prohibiting
all members of the Communist Party from serving as officials of labor unions violated the prohi-
bition on bills of attainder. The Court explained that Congress was free to ban all individuals who
were likely to initiate strikes and disrupt the economy from holding office in unions, although
Congress was prohibited from barring a specific group of “subversive” individuals from union
office. Excluding all members of the Communist Party from union office made little sense because
party members differ in their willingness to call strikes and to disrupt the economy.3
Ex Post Facto Laws

An ex post facto law is a law “passed after the fact.” Alexander Hamilton explained that the con-
stitutional prohibition on ex post facto laws was vital because “subjecting of men to punishment for
things which, when they were done were breaches of no law, and the practice of arbitrary imprison-
ments, have been, in all ages, the favorite and most formidable instrument of tyranny.”4 In 1798, in
Calder v. Bull, Supreme Court Justice Samuel Chase listed four categories of ex post facto laws5:
•• Every law that makes an action, done before the passing of the law, and was innocent when
done, criminal; and punishes such action.
•• Every law that aggravates a crime, or makes it greater than it was, when committed.
•• Every law that changes the punishment, and inflicts a greater punishment, than the law annexed
to the crime, when committed.
•• Every law that alters the legal rules of evidence, and receives less, or different, testimony, than
the law required at the time of the commission of the offense, in order to convict the offender.
The constitutional rule against ex post facto laws is based on the familiar interests in providing
individuals notice of criminal conduct and protecting individuals against retroactive “after the
fact” statutes. Supreme Court Justice John Paul Stevens noted that all four of Justice Chase’s cate-
gories are “mirror images of one another. In each instance, the government refuses, after the fact,
to play by its own rules, altering them in a way that is advantageous only to the State, to facilitate
an easier conviction.”6
In summary, the prohibition on ex post facto laws prevents legislation being applied to acts
committed before the statute went into effect. The legislature is free to declare that in the future a
previously innocent act will be a crime. Keep in mind that the prohibition on ex post facto laws
is directed against enactments that disadvantage defendants; legislatures are free to retroactively
assist defendants by reducing the punishment for a criminal act. The distinction between bills of
attainder and ex post facto laws is summarized as follows:
•• A bill of attainder punishes a specific individual or specific individuals. An ex post facto law
criminalizes an act that was legal at the time the act was committed.
•• A bill of attainder is not limited to criminal punishment and may involve any disadvantage
imposed on an individual; ex post facto laws are limited to criminal punishment.
•• A bill of attainder imposes punishment on an individual without trial. An ex post facto law
is enforced in a criminal trial.
The Supreme Court and Ex Post Facto Laws

Determining whether a retroactive application of the law violates the prohibition on ex post facto
laws has proven more difficult than might be imagined given the seemingly straightforward nature
of this constitutional ban.
In Stogner v. California, the Supreme Court ruled that a California law authorizing the prosecution
of allegations of child abuse that previously were barred by a three-year statute of limitations consti-
tuted a prohibited ex post facto law. This law was challenged by Marion Stogner, who found himself
indicted for child abuse after having lived the past nineteen years without fear of criminal prosecu-
tion for an act committed twenty-two years prior. Justice Stephen Breyer ruled that California acted
in an “unfair” and “dishonest” fashion in subjecting Stogner to prosecution many years after the
state had assured him that he would not stand trial. Justice Anthony Kennedy argued in dissent that
California merely reinstated a prosecution that was previously barred by the three-year statute of lim-
itations. The penalty attached to the crime of child abuse remained unchanged.7 What is your view?
We now turn our attention to the requirement of statutory clarity.
STATUTORY CLARITY
The Fifth and Fourteenth Amendments to the U.S. Constitution prohibit federal and state gov-
ernments from depriving individuals of “life, liberty or property without due process of law.” Due
process requires that criminal statutes should be drafted in a clear and understandable fashion.
A statute that fails to meet this standard is unconstitutional on the grounds that it is void for
vagueness.
Due process requires that individuals receive notice of criminal conduct. Statutes are required to define
criminal offenses with sufficient clarity so that ordinary individuals are able to understand what
conduct is prohibited.
Due process requires that the police, prosecutors, judges, and jurors are provided with a reasonably clear
statement of prohibited behavior. The requirement of definite standards ensures the uniform and
nondiscriminatory enforcement of the law.
In summary, due process ensures clarity in criminal statutes. It guards against individuals
being deprived of life (the death penalty), liberty (imprisonment), or property (fines) without due
process of law.
Clarity
Would a statute that punishes individuals for being members of a gang satisfy the test of statutory
clarity? The U.S. Supreme Court, in Grayned v. Rockford, ruled that a law was void for vagueness that
punished an individual “known to be a member of any gang consisting of two or more persons.”
The Court observed that “no one may be required at peril of life, liberty or property to speculate as
to the meaning of [the term ‘gang’ in] penal statutes.”8
In another example, the Supreme Court ruled in Coates v. Cincinnati that an ordinance was
held unconstitutionally void for vagueness that declared that it was a criminal offense for “three
or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a
manner annoying to persons passing by.” The Court held that the statute failed to provide indi-
viduals with reasonably clear guidance because “conduct that annoys some people does not annoy
others,” and that an individual’s arrest may depend on whether he or she happens to “annoy” a
“police officer or other person who should happen to pass by.” This did not mean that Cincinnati
was helpless to maintain the city sidewalks; the city was free to prohibit people from “blocking
sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other
forms of antisocial conduct.”9
Definite Standards for Law Enforcement

The U.S. Supreme Court explained in Kolender v. Lawson that the void-for-vagueness doctrine was
aimed at ensuring that statutes clearly inform citizens of prohibited acts and, simultaneously, at
providing definite standards for the enforcement of the law.10
Broadly worded statutes are a threat to a democracy that is committed to protecting even the
most extreme nonconformist from governmental harassment. The U.S. Supreme Court, in Coates
v. Cincinnati, expressed concern that the lack of clear standards in the local ordinance might lead
to the arrest of individuals who are exercising their constitutionally protected rights. Under the
Cincinnati statute, association and assembly on the public streets would be “continually subject”
to whether the demonstrators’ “ideas, their lifestyle, or their physical appearance is resented by the
majority of their fellow citizens.”11
The Supreme Court has stressed that the lack of standards presents the danger that a law
will be applied in a discriminatory fashion against minorities and the poor.12 In Papachristou v.
Jacksonville, the U.S. Supreme Court expressed the concern that a broadly worded vagrancy statute
punishing “rogues and vagabonds”; “lewd, wanton and lascivious persons”; “common railers and
brawlers”; and “habitual loafers” failed to provide standards for law enforcement and risked that
the poor, minorities, and nonconformists would be targeted for arrest based on the belief that they
posed a threat to public safety. The court humorously noted that middle-class individuals who fre-
quented the local country club were unlikely to be arrested, although they might be guilty under
the ordinance of “neglecting all lawful business and habitually spending their time by frequent-
ing . . . places where alcoholic beverages are sold or served.”13
A devil’s advocate may persuasively contend that the void-for-vagueness doctrine provides
undeserved protection to “wrongdoers.” In Nebraska v. Metzger, a neighbor spotted Metzger
standing naked with his arms at his sides in the large window of his garden apartment for
roughly five seconds. The police were called and observed Metzger standing within a foot of the
window eating a bowl of cereal and noted that “his nude body, from the mid-thigh on up, was
visible.” The ordinance under which Metzger was charged and convicted made it unlawful to
commit an “indecent, immodest or filthy act within the presence of any person, or in such a sit-
uation that persons passing might ordinarily see the same.” The Nebraska Supreme Court ruled
that this language provided little advance notice as to what is lawful and what is unlawful and
could be employed by the police to arrest individuals for entirely lawful acts that some might
consider immodest, including holding hands, kissing in public, or wearing a revealing swimsuit.
Could Metzger possibly believe that there was no legal prohibition on his standing nude in his
window?14
You Decide 2.1 In State v. Stanko, Stanko was speed no greater than is reasonable and proper under
clocked at eighty-five miles per the conditions existing at the point of operation, taking
hour and was ticketed for speed- into account the amount and character of traffic, con-
ing. The arresting officer testified dition of brakes, weight of vehicle, grade and width of
that the portion of the road over highway, condition of surface, and freedom of obstruc-
which he clocked Stanko was narrow with curves and tion to the view ahead. The person operating or driving
hills and obscured vision. The weather was dry, and visi- the vehicle shall drive the vehicle so as not to unduly or
bility was good. Section 61-8-303(1), MCA (Montana unreasonably endanger the life, limb, property, or other
Code Annotated), provides as follows: rights of a person entitled to the use of the street or
A person operating or driving a vehicle of any char- highway.
acter on a public highway of this state shall drive the Is the Montana statute void for vagueness? See
vehicle in a careful and prudent manner and at a rate of State v. Stanko, 974 P.2d 1132 (Mont. 1998).
You can find the answer at study.sagepub.com/lippmaness2e

EQUAL PROTECTION
Immediately following the Civil War, in 1865, Congress enacted and the states ratified the
Thirteenth Amendment, which prohibits slavery and involuntary servitude. Discrimination against
African Americans nevertheless continued, and Congress responded by approving the Fourteenth
Amendment in 1866. Section 1 provides that “no state shall deprive any person of life, liberty or
property without due process of law, or deny any person equal protection of the law.” The Supreme
Court declared in 1954 that the Fifth Amendment Due Process Clause imposes an identical obliga-
tion to ensure the equal protection of the law on the federal government.15
The Equal Protection Clause was rarely invoked for almost one hundred years. Justice Oliver
Wendell Holmes Jr., writing in 1927, typified the lack of regard for the Equal Protection Clause
when he referred to the amendment as “the last resort of constitutional argument.”16 The famous
1954 Supreme Court decision in Brown v. Board of Education ordering the desegregation of public
schools with “all deliberate speed” ushered in a period of intense litigation over the requirements
of the clause.17
Three Levels of Scrutiny

Criminal statutes typically make distinctions based on various factors, including the age of victims
and the seriousness of the offense. For instance, a crime committed with a dangerous weapon may
be punished more harshly than a crime committed without a weapon. Courts generally accept the
judgment of state legislatures in making differentiations so long as a law is rationally related to a
legitimate government purpose. Legitimate government purposes generally include public safety,
health, morality, peace and quiet, and law and order. There is a strong presumption that a law is
constitutional under this rational basis test or minimum level of scrutiny test.18
In Westbrook v. Alaska, nineteen-year-old Nicole M. Westbrook contested her conviction for
consuming alcoholic beverages when under the age of twenty-one. Westbrook argued that there
was no basis for distinguishing between a twenty-one-year-old and an individual who was slightly
younger. The Alaska Court of Appeals recognized that there may be some individuals younger
than twenty-one who possess the judgment and maturity to handle alcoholic beverages and that
some individuals over twenty-one may fail to meet this standard. The court observed that states
have established the drinking age at various points and that setting the age between nineteen and
twenty-one years of age seemed to be rationally related to the objective of ensuring responsible
drinking. As a result, the court concluded that “even if we assume that Westbrook is an exception-
ally mature 19-year-old, it is still constitutional for the legislature to require her to wait until she
turns 21 before she drinks alcoholic beverages.”19
In contrast, the courts apply a strict scrutiny test in examining distinctions based on race
and national origin. Racial discrimination is the very evil that the Fourteenth Amendment was
intended to prevent, and the history of racism in the United States raises the strong probability that
such classifications reflect a discriminatory purpose. In Strauder v. West Virginia, the U.S. Supreme
Court struck down a West Virginia statute as unconstitutional that limited juries to “white male
persons who are twenty-one years of age.”20
Courts are particularly sensitive to racial classifications in criminal statutes and have ruled that
such laws are unconstitutional in almost every instance. The Supreme Court observed that “in this
context . . . the power of the State weighs most heavily upon the individual or the group.”21 In
Loving v. Virginia, in 1967, Mildred Jeter, an African American, and Richard Loving, a Caucasian,
pled guilty to violating Virginia’s ban on interracial marriages and were sentenced to twenty-five
years in prison, a sentence that was suspended on the condition that the Lovings leave Virginia.
The Supreme Court stressed that laws containing racial classifications must be subjected to the
“most rigid scrutiny” and determined that the statute violated the Equal Protection Clause. The
Court failed to find any “legitimate overriding purpose independent of invidious racial discrimina-
tion” behind the law. The fact that Virginia “prohibits only interracial marriages involving white
persons demonstrates that the racial classifications must stand on their justification, as measures
designed to maintain White Supremacy. . . . There can be no doubt that restricting the freedom to
marry solely because of racial classifications violates the central meaning of the Equal Protection
Clause.”22 The strict scrutiny test also is used when a law limits the exercise of “fundamental
rights” (such as freedom of speech).
The Supreme Court has adopted a third, intermediate level of scrutiny for classifications
based on gender. The decision to apply this standard rather than strict scrutiny is based on the
consideration that although women historically have confronted discrimination, the biological
differences between men and women make it more likely that gender classifications are justified.
Women, according to the Court, also possess a degree of political power and resources that are gen-
erally not found in “isolated and insular minority groups” and are able to combat discrimination
through the political process. Intermediate scrutiny demands that the state provide some mean-
ingful justification for the different treatment of men and women and not rely on stereotypes or
classifications that have no basis in fact. Justice Ruth Ginsburg applied intermediate scrutiny in
ordering that the Virginia Military Institute admit women and ruled that gender-based govern-
ment action must be based on “an exceedingly persuasive justification . . . the burden of justifica-
tion is demanding and it rests entirely on the State.”23
In Michael M. v. Superior Court, the U.S. Supreme Court upheld the constitutionality of
California’s “statutory rape law” that punished “an act of sexual intercourse accomplished with a
female not the wife of the perpetrator, where the female is under the age of 18 years.” Is it consti-
tutional to limit criminal liability to males? The Supreme Court noted that California possessed a
“strong interest” in preventing illegitimate teenage pregnancies. The Court explained that impos-
ing criminal sanctions solely on males roughly “equalized the deterrents on the sexes,” because
young men did not face the prospects of pregnancy and child rearing. The Court also deferred to
the judgment of the California legislature that extending liability to females would likely make
young women reluctant to report violations of the law.24
In summary, there are three different levels of analysis under the Equal Protection Clause:
•• Rational Basis Test. A classification is presumed valid so long as it is rationally related to a con-
stitutionally permissible state interest. An individual challenging the statute must demonstrate
that there is no rational basis for the classification. This test is used in regard to the “nonsuspect”
categories of the poor, the elderly, and the mentally challenged and to distinctions based on age.
•• Strict Scrutiny. A law singling out a racial or ethnic minority must be strictly necessary, and
there must be no alternative approach to advancing a compelling state interest. This test is
also used when a law limits fundamental rights.
•• Intermediate Scrutiny. Distinctions on the basis of gender must be substantially related to an
important government objective. A law singling out women must be based on factual differ-
ences and must not rest on overbroad generalizations.
In 2013, in United States v. Windsor, the U.S. Supreme Court struck down part of the federal
Defense of Marriage Act (DOMA), a law that defined marriage as “only a legal union between one
man and one woman.” The effect of DOMA was to deny roughly one thousand federal benefits to
same-sex couples whose marriages were recognized under state law. The Court held that “no legiti-
mate purpose overcomes the purpose and effect” of the law, which is to “injure” and to “demean”
and to deny “equal status” to same-sex marriages.25
In 2015, in Obergefell v. Hodges, the U.S. Supreme Court held by a vote of 5-4 that the Fourteenth
Amendment Due Process and Equal Protection Clauses guarantee same-sex couples the same fun-
damental right to marry as is afforded to opposite-sex couples and ruled that state prohibitions on
same-sex marriage were unconstitutional. The Court also held that the Fourteenth Amendment
requires states to recognize same-sex marriages performed in other states.26
You Decide 2.2 Jeanine Biocic was walking on with an “act of indecency or disorderly conduct . . . pro-
the beach on the Chincoteague hibited on any national wildlife refuge.” Biocic was con-
National Wildlife Refuge in Virginia victed and fined $25; she appealed on the ground that
with a male friend. Biocic wanted her conviction violated equal protection under law. Her
to get some ex tra sun and claim was based on the fact that the ordinance prohib-
removed the top of her two-piece bathing suit, exposing ited the exposure of female breasts and did not prohibit
her breasts. She was observed by a U.S. Fish and Wildlife the exposure of male breasts. How would you rule? See
Service officer who issued a summons charging Biocic United States v. Biocic, 928 F.2d 112 (4th Cir. 1991).

We next look at the protections for freedom of speech and privacy, the right to bear arms, and
the prohibition against cruel and unusual punishment.
Read Webster v.
Virgin Islands and THE BILL OF RIGHTS
Wright v. South
Carolina on the
study site: study
Nationalization
.sagepub.com/ The last half of the twentieth century witnessed the nationalization or what law professors refer to
lippmaness2e.
as the constitutionalization of the criminal justice process. This involved interpreting the Fourteenth
Amendment Due Process Clause to extend most of the protections of the Bill of Rights (the
first ten amendments to the Constitution) to the states. There now is a single standard of rights
and liberties that all levels of government must satisfy. You may be prosecuted in Indiana, in Iowa,
or in the federal system, and your rights are fundamentally the same. This constitutionalization or
development of a single standard that applies to the federal government as well as to the states
marked a true revolution in the law.
Professor Erwin Chemerinsky observed that if the Bill of Rights applies only to the federal
government, the state and local governments “then are free to infringe even the most precious
liberties” and to “violate basic constitutional rights.”27 A state, for example, might not provide an
individual the right to a trial by jury or the right to a lawyer when charged with a serious criminal
offense. On the other hand, there is a widespread belief that the federal government should not
intrude into the affairs of state governments and that the citizens of each state should be left free
to determine what rights and liberties they wish to preserve and to protect. Criminal justice, in
particular, was viewed as a local matter.28
This system of states’ rights did not fully survive the Civil War. Slavery in the states of the for-
mer Confederacy would no longer be tolerated, and former African American slaves were to enjoy
the full rights of citizenship. The Fourteenth Amendment was added to the Constitution in
1868 in order to guarantee equal treatment and opportunity for African Americans. The amend-
ment reads as follows:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the state wherein they reside. No state shall make
or enforce any law which shall abridge the privileges and immunities of citizens of the
United States nor shall any state deprive any person of life, liberty, or property without
due process of law; nor deny to any person within its jurisdiction the equal protection of
the laws.
The first sentence recognized that African Americans are citizens of the United States and of the
state in which they reside. The purpose was to reverse the Supreme Court’s 1857 decision in Scott
v. Sandford, which held that African American slaves were not eligible to become U.S. citizens.29
The twentieth century witnessed continued efforts by defendants to extend the protection of
the Bill of Rights to the states. There was an increasing call for fairer procedures in state courts.
Lawyers argued that the Due Process Clause of the Fourteenth Amendment, which applied to the
states, included various provisions of the Bill of Rights to the U.S. Constitution. Supreme Court
justices have employed one of three approaches to incorporate aspects of the Bill of Rights into the
Fourteenth Amendment and to extend these protections to the fifty states. The three theories of
incorporation are as follows:
•• Fundamental Fairness. The Supreme Court decides on a case-by-case basis whether rights are
fundamental to the concept of ordered liberty and therefore apply to the states.
•• Total Incorporation and Total Incorporation Plus. The entire Bill of Rights applies to the states.
Total incorporation plus includes additional rights not in the Bill of Rights along with the
entire Bill of Rights.
•• Selective Incorporation. Particular rights in the Bill of Rights apply to the states. Selective
incorporation plus includes additional rights not in the Bill of Rights along with the partic-
ular rights in the Bill of Rights.
The majority of judges favor selective incorporation. They argue that only those provisions of
the Bill of Rights that are essential to liberty are incorporated into the Fourteenth Amendment.
The U.S. Supreme Court has incorporated a number of the fundamental rights included in the
Bill of Rights into the Fourteenth Amendment Due Process Clause. The rights that are incorpo-
rated are listed in Table 2.1. The Court has not incorporated the following four provisions of the
Bill of Rights into the Fourteenth Amendment, and therefore, a state is free although not required
to adopt a law or include a provision in its constitution that extends these four protections to its
citizens.
•• Third Amendment. Prohibition against quartering soldiers without consent of the owner.
•• Fifth Amendment. Right to indictment by a grand jury for capital or infamous crimes.
•• Seventh Amendment. Right to trial in civil law cases.
•• Eighth Amendment. Prohibition against excessive bail and fines.
FREEDOM OF SPEECH
The First Amendment to the U.S. Constitution provides that “Congress shall make no
law . . . abridging the freedom of speech or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.” The U.S. Supreme Court
extended this prohibition to the states in a 1925 Supreme Court decision in which the Court pro-
claimed that “freedom of speech and of the press . . . are among the fundamental personal rights
and ‘liberties’ protected under the Due Process Clause of the Fourteenth Amendment from impair-
ment by the States.”30
The famous, and now deceased, First Amendment scholar Thomas I. Emerson identified four
functions central to democracy performed by freedom of expression under the First Amendment31:
•• Freedom of expression contributes to individual self-fulfillment by encouraging individuals to

express their ideas and creativity.
•• Freedom of expression ensures a vigorous “marketplace of ideas” in which a diversity of views
are expressed and considered in reaching a decision.
•• Freedom of expression promotes social stability by providing individuals the opportunity
to be heard and to influence the political and policy-making process. This encourages the
acceptance of decisions and discourages individuals from resorting to violence.
•• Freedom of expression ensures that there is a steady stream of innovative ideas and enables
the government to identify and address newly arising issues.
The First Amendment is vital to the United States’ free, open, and democratic society. Justice
William O. Douglas wrote in Terminiello v. Chicago32 that speech
may indeed best serve its high purpose when it induces a condition of unrest, creates dis-
satisfaction with the conditions as they are, or even stirs people to anger. Speech is often
provocative and challenging. It may strike at prejudices and preconceptions and have
profound unsettling effects as it presses for acceptance of an idea.
Justice Robert H. Jackson, reflecting on his experience as a prosecutor during the Nuremberg
trials of Nazi war criminals following World War II, cautioned Justice Douglas that the choice is
not between order and liberty. It is between liberty with order and anarchy without either. There
is danger that if the Court does not temper its doctrinaire logic with a little practical wisdom, it
will convert the constitutional Bill of Rights into a suicide pact. Justice Jackson is clearly correct
that there must be some limit to freedom of speech. But where should the line be drawn? The
Supreme Court articulated these limits in Chaplinsky v. New Hampshire and observed that there are
“certain well-recognized categories of speech which may be permissibly limited under the First
Amendment.” The Supreme Court explained that these “utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth that any benefit that may
be derived from them is clearly outweighed by the social interest in order and morality.”33
Table 2.1 Bill of Rights Provisions Related to Criminal Procedure Incorporated Into the
Fourteenth Amendment
First Amendment
Fiske v. Kansas, 274 U.S. 380 (1927)

[freedom of speech]
Second Amendment
McDonald v. Chicago, 561 U.S. 742 (2010)

[right to bear arms]
Fourth Amendment
Wolf v. Colorado, 338 U.S. 25 (1949)

[unreasonable searches and seizures]
Mapp v. Ohio, 367 U.S. 643 (1961)
[exclusionary rule]
Fifth Amendment
Malloy v. Hogan, 378 U.S. 1 (1964)

[compelled self-incrimination]
Benton v. Maryland, 395 U.S. 784 (1969)
[double jeopardy]
Sixth Amendment
Gideon v. Wainwright, 372 U.S. 335 (1963)

[right to counsel]
Klopfer v. North Carolina, 386 U.S. 213 (1967)
[speedy trial]
In re Oliver, 333 U.S. 257 (1948)
[public trial]
Pointer v. Texas, 380 U.S. 400 (1965)
[right to confront witnesses]
Duncan v. Louisiana, 391 U.S. 145 (1968)
[impartial jury]
Washington v. Texas, 388 U.S. 14 (1967)
[right to compulsory process for obtaining favorable witnesses at trial]
Eighth Amendment
Robinson v. California, 370 U.S. 660 (1962)

[cruel and unusual punishment]
The main categories of speech for which content is not protected by the First Amendment and that
may result in the imposition of criminal punishment are as follows:
All these terms will be on quiz!
• Fighting Words. Words directed to another individual or individuals that an ordinary
and reasonable person should be aware are likely to cause a fight or breach of the peace are pro-
hibited under the fighting words doctrine. In Chaplinsky v. New Hampshire, the Supreme Court
upheld the conviction of a member of the Jehovah’s Witnesses who, when distributing religious
pamphlets, attacked a local marshal with the accusation that “you are a God damned racketeer”
and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.”
• Incitement to Violent Action. A speaker, when addressing an audience, is prohibited from
incitement to violent action. In Feiner v. New York, Feiner addressed a racially mixed crowd of
seventy-five or eighty people. He was described as “endeavoring to arouse” the African Americans
in the crowd “against the whites, urging that they rise up in arms and fight for equal rights.”
The Supreme Court ruled that “when clear and present danger of riot, disorder, interference with
traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears,
the power of the State to prevent or punish is obvious.”34 On the other hand, in Terminiello v.
Chicago, the Supreme Court stressed that a speaker could not be punished for speech that merely
“stirs to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.”35 In
Brandenburg v. Ohio, the Court clarified the standard for incitement when it overturned the con-
viction of an Ohio Ku Klux Klan leader for a speech that instructed the audience on the duty and
necessity of violence against the government. The Court held that the government may outlaw
speech when it is directed at inciting or producing “imminent lawless action” and is likely to incite
or produce such action. The statute under which Brandenburg was convicted was unconstitutional
because it did not distinguish between mere teaching and advocacy of violence from incitement
to imminent lawless action.36
• Threat. A developing body of law prohibits threats of bodily harm directed at individuals.
Judges must weigh and balance a range of factors in determining whether a statement constitutes
a political exaggeration or a true threat. In Watts v. United States, the defendant proclaimed to
a small gathering following a public rally on the grounds of the Washington Monument that
if inducted into the army and forced to carry a rifle, “the first man I want to get in my sights is
L.B.J. [President Lyndon Johnson]. . . . They are not going to make me kill my black brothers.”
The onlookers greeted this statement with laughter. Watts’s conviction was overturned by the U.S.
Supreme Court, which ruled that the government had failed to demonstrate that Watts had artic-
ulated a true threat and that these types of bold statements were to be expected in a dynamic and
democratic society divided over the Vietnam War.37
In Elonis v. United States, Anthony Douglas Elonis adopted the online name “Tone Dougie” and
posted vicious and violent rap lyrics on Facebook against a former employer, his soon-to-be ex-wife,
a kindergarten class, and an FBI agent. Elonis was convicted under a federal statute that prohibits
the transmission in interstate commerce of any “threat . . . to injure another.” The Supreme Court
held that Elonis could not be convicted based solely on the reaction of a reasonable person to his
posts and that the government was required to establish that Elonis possessed a criminal intent.
Elonis claimed he was acting under his online persona and lacked a specific intent to threaten
individuals. The Supreme Court asked the lower court to decide whether it was sufficient for a con-
viction under the federal law that Elonis may have been reckless in his Facebook posts.38 Obscenity is nudity,
pornography, obscene
• Obscenity. Obscene materials are considered to lack “redeeming social importance” and things
are not accorded constitutional protection. Drawing the line between obscenity and protected
speech has proven problematic. The Supreme Court conceded that obscenity cannot be defined
with “God-like precision,” and Justice Potter Stewart went so far as to pronounce in frustration that
the only viable test seemed to be that he “knew obscenity when he saw it.”39 The U.S. Supreme
Court was finally able to agree on a test for obscenity in Miller v. California. The Supreme Court
declared that obscenity was limited to works that when taken as a whole, in light of contempo-
rary community standards, appeal to the prurient interest in sex; are patently offensive; and lack
serious literary, artistic, political, or scientific value. This qualification for scientific works means
that a medical textbook portraying individuals engaged in “ultimate sexual acts” likely would not
constitute obscenity.40 Child pornography may be limited despite the fact that it does not satisfy
the Miller standard.41
• Libel. You should remain aware that the other major limitation on speech, libel, is a civil
law rather than a criminal action. This enables individuals to recover damages for injury to their
reputations. In New York Times v. Sullivan, the U.S. Supreme Court severely limited the circum- Libel is written defamation
stances in which public officials could recover damages and held that a public official may not Slander is spoken defamation
recover damages for a defamatory falsehood relating to his or her official conduct “unless . . . the
statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless
disregard of whether it was false or not.”42 The Court later clarified that states were free to apply a
more relaxed, simple negligence (lack of reasonable care in verifying the facts) standard in suits for
libel brought by private individuals.43
Keep in mind that these are narrowly drawn exceptions to the First Amendment’s commit-
ment to a lively and vigorous societal debate. The general rule is that the government may neither
require nor substantially interfere with individual expression. The Supreme Court held in West
Virginia v. Barnette that a student may not be compelled to pledge allegiance to the American flag.
The Supreme Court observed that “if there is any fixed star in our constitutional constellation, it
is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, reli-
gion or other matters of opinion or force citizens to confess by word or action their faith therein.”
This commitment to a free “marketplace of ideas” is based on the belief that delegating the deci-
sion as to what “views shall be voiced largely into the hands of each of us” will “ultimately produce
a more capable citizenry and more perfect polity and . . . that no other approach would comport
with the premise of individual dignity and choice upon which our political system rests.”44
The Supreme Court has been reluctant to expand the categories of prohibited speech. In 2010,
the Supreme Court held unconstitutional a federal law that punished depictions of animal cruelty.
The Court noted that there was a long tradition of prohibiting animal cruelty in the United States.
This, however, was “not a category of speech that historically had been prohibited and depictions
of animal cruelty were protected under the First Amendment.”45
Overbreadth
The doctrine of overbreadth is an important aspect of First Amendment protection. This provides
Law goes to far. For
that a statute is unconstitutional that is so broadly and imprecisely drafted that it encompasses
example a parent with
a photo of their baby and prohibits a substantial amount of protected speech relative to the coverage of the statute.46 In
in the shower New York v. Ferber, the U.S. Supreme Court upheld a New York child pornography statute that crim-
inally punished an individual for promoting a “performance which includes sexual conduct by a
child less than sixteen years of age.” Sexual conduct was defined to include “lewd exhibition of the
genitals.” Justice Byron White was impatient with the concern that although the law was directed
at hard-core child pornography, “[s]ome protected expression ranging from medical textbooks to
pictorials in the National Geographic would fall prey to the statute.” White doubted whether these
applications of the statute to protected speech constituted more than a “tiny fraction of the mate-
rials” that would be affected by the law, and he expressed confidence that prosecutors would not
bring actions against these types of publications. This, in short, is the “paradigmatic case of state
statute whose legitimate reach dwarfs its arguably impermissible applications.”47
Symbolic Speech
Example: Hijab The Supreme Court has interpreted “expression” under the First Amendment to include symbolic
speech or actions that have “communicative content.” For example, the Court has held that the
First Amendment protects high school students wearing black armbands to protest the Vietnam
War48 and a religious individual covering up the motto “Live Free or Die” on the New Hampshire
license plate as a means of expressing the view that his ultimate loyalty was to God rather than to
the state.49
In Texas v. Johnson, the U.S. Supreme Court addressed the constitutionality of Texas Penal Code
Annotated Section 42.09, which punished the intentional or knowing desecration of a “state or
national flag.” Desecration under the statute was interpreted as to “efface, damage, or otherwise
physically mistreat in a way that the actor knows will seriously offend one or more persons likely
to observe or discover his action.”50
Johnson participated in a political demonstration during the Republican National Convention
in Dallas in 1984 to protest the policies of the Reagan administration and to dramatize the con-
sequences of nuclear war. Johnson unfurled an American flag, doused the flag with kerosene, and
set it on fire. The demonstrators chanted, “America, the red, white, and blue, we spit on you,” as
the flag burned.
Justice William Brennan observed that the Supreme Court had recognized that conduct may
be protected under the First Amendment where there is an intent to convey a particularized mes-
sage and there is a strong likelihood that this message will be understood by observers. Justice
Brennan observed that the circumstances surrounding Johnson’s burning of the flag resulted in his
message being “both intentional and overwhelmingly apparent.” In those instances in which an
act contains both communicative and noncommunicative elements, the standard in judging the
constitutionality of governmental regulation of symbolic speech is whether the government has a
substantial interest in limiting the nonspeech element (the burning). In the view of the majority of
the judges, Johnson was being unconstitutionally punished based on the ideas he communicated
when he burned the flag.
In 1989, the U.S. Congress adopted the Flag Protection Act, 18 U.S.C. § 700. The act provided
that anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor
or ground, or tramples upon” a U.S. flag shall be subject to both a fine and imprisonment for not
more than one year. This law exempted the disposal of a “worn or soiled” flag. In United States
v. Eichman, Justice Brennan failed to find that this law was significantly different from the Texas
statute in Johnson and ruled that the law “suppresses expression out of concern for its likely com-
municative impact.”51
Hate Speech
Hate speech is one of the central challenges confronting the First Amendment. This is defined
as speech that denigrates, humiliates, and attacks individuals on account of race, religion, ethnic-
ity, nationality, gender, sexual preference, or other personal characteristics and preferences. Hate
speech should be distinguished from hate crimes or penal offenses that are directed against an
individual who is a member of one of these “protected groups.”
The United States is an increasingly diverse society in which people inevitably collide, clash,
and compete over jobs, housing, and education. Racial, religious, and other insults and denuncia-
tions are hurtful, increase social tensions and divisions, and possess limited social value. This type
of expression also has little place in a diverse society based on respect and regard for individuals of
every race, religion, ethnicity, and nationality. Regulating this expression, on the other hand, runs
the risk that artistic and literary depictions of racial, religious, and ethnic themes may be deterred
and denigrated. In addition, there is the consideration that debate on issues of diversity, affirma-
tive action, and public policy may be discouraged. Society benefits when views are forced out of
the shadows and compete in the sunlight of public debate.
The most important U.S. Supreme Court ruling on hate speech is R.A.V. v. St. Paul. In R.A.V.,
several Caucasian juveniles burned a cross inside the fenced-in yard of an African American family.52
The young people were charged under two statutes, including the St. Paul Bias-Motivated Crime
Ordinance (St. Paul Minn. Legis. Code § 292.02), which provided that “whoever places on public
or private property a symbol, object, including and not limited to, a burning cross or Nazi swastika,
which one knows or has reasonable grounds to know arouses anger, alarm or resentment . . . on the
basis of race, color, creed, religion or gender, commits disorderly conduct . . . [and] shall be guilty of
a misdemeanor.” The Supreme Court noted that St. Paul punishes certain fighting words, yet permits
other equally harmful expressions. This discriminates against speech based on the content of ideas.
For instance, what about symbolic attacks against greedy real estate developers or middle-class indi-
viduals who move into a gentrifying neighborhood that makes these economically privileged indi-
viduals fearful for their safety? A year later in 1993, in Wisconsin v. Mitchell, the Supreme Court ruled
that a Wisconsin statute that enhanced the punishment of individuals convicted of hate crimes did
not violate the defendant’s First Amendment rights.53 The Wisconsin court had increased Mitchell’s
prison sentence for aggravated assault from a maximum of two years to a term of four years based on
his intentional selection of the person against “whom the crime is committed because of the race,
religion, color, disability, sexual orientation, national origin or ancestry of that person.”
Mitchell creatively claimed that he was being punished more severely for harboring and acting
on racially discriminatory views in violation of the First Amendment. The Supreme Court, how-
ever, ruled that Mitchell was being punished for his harmful act rather than for the fact that his act
was motivated by racist views. The enhancement of Mitchell’s sentence was recognition that acts
based on discriminatory motives are likely “to provoke retaliatory crimes, inflict distinct emotional
harms on their victims, and incite community unrest.” Mitchell also pointed out that the prose-
cution was free to introduce a defendant’s prior racist comments at trial to prove a discriminatory
motive or intent and that this would “chill” racist speech. The Supreme Court held that it was
unlikely that a citizen would limit the expression of his or her racist views based on the fear that
these statements would be introduced one day against him or her at a prosecution for a hate crime.
In 2003, in Virginia v. Black, the U.S. Supreme Court held unconstitutional a Virginia law
prohibiting cross burning with “an intent to intimidate a person or group of persons.”54 This law,
unlike the St. Paul statute, did not discriminate on the basis of the content of the speech. The
Court, however, determined that the statute’s provision that the jury is authorized to infer an
intent to intimidate from the act of burning a cross without any additional evidence “permits a
jury to convict in every cross burning case in which defendants exercise their constitutional right
not to put on a defense.” This provision also makes “it more likely that the jury will find an intent
to intimidate regardless of the particular facts of the case.” The Virginia law failed to distinguish
between cross burning intended to intimidate individuals and cross burning intended to make a
political statement by groups such as the Ku Klux Klan that view the flaming cross as a symbolic
representation of their political point of view.
FREEDOM OF ASSEMBLY
The First Amendment right to freedom of nonviolent public assembly is integral to the ability
of individuals to organize to influence public policy. In DeJonge v. Oregon, the Supreme Court
stated that freedom of peaceful assembly is as fundamental as freedom of speech and the press to
democracy.55
Demonstrations have been an important mechanism for groups of people to express their col-
lective views on issues ranging from abortion to civil rights to immigration.
TIME, PLACE, AND MANNER RESTRICTIONS

The Supreme Court has upheld the reasonableness of laws that restrict the time, location, and
manner of individuals’ exercise of freedom of speech and assembly. A local government, for exam-
ple, may limit the time or noise level or location of demonstrations. Time, place, and manner
restrictions must be “content neutral,” meaning that they are required to apply to all types of
speech regardless of content. Individuals also must be provided or possess reasonable alternative
means of expressing their message.
In Grayned v. Rockford, the U.S. Supreme Court upheld the restriction on demonstrations on
the sidewalk adjacent to a school during school hours on the grounds that such protests may
disrupt students’ education. On the other hand, a demonstration nearby to the school during
non–school hours likely would be constitutionally protected.56
The First Amendment protects freedom of religion as well as freedom of speech. The next
section discusses the Free Exercise Clause of the First Amendment.
You Decide 2.3 Lori MacPhail, a peace officer Police Department). The officer had blood on her hair,
in Chico, California, assigned to a and pieces of her flesh and face were blown away. An
high school, observed Ryan D. art teacher saw the painting and found it to be “disturb-
with some other students off cam- ing” and “scary,” and an administrator at the school
pus during school hours. She con- informed Officer MacPhail.
ducted a pat-down, discovered that Ryan possessed An assistant principal confronted Ryan, who stated
marijuana, and issued him a citation. the picture depicted his “anger at police officers” and
Roughly a month later, Ryan turned in an art proj- that he was angry with MacPhail and agreed that it was
ect for a painting class at the high school. The proj- “reasonable to expect that Officer MacPhail would even-
ects generally are displayed in the classroom for as tually see the picture.” Ryan was charged with a viola-
long as two weeks. Ryan’s painting pictured an indi- tion of Section 422 and brought before juvenile court.
vidual who appeared to be a juvenile wearing a green How would you rule? See In re Ryan D., 123 Cal.
hooded sweatshirt discharging a handgun at the back Rptr. 2d 193 (Cal. App. 2002). Compare the decision in
of the head of a female peace officer with badge No. 67 Ryan D. to the decision in George T. v. California, 93 P.3d
(Officer MacPhail’s number) and the initials CPD (Chico 1007 (Cal. 2004).

FREEDOM OF RELIGION
The first part of the First Amendment provides that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.” The first portion of the clause is
known as the “Establishment Clause,” and the second part of the clause is referred to as the “Free
Exercise Clause.”
The Establishment Clause regulates the relationship between government and religion. One
view is that the government may favor and support religion so long as the government does not
promote any particular religion. Some legal thinkers take a broader interpretation and argue that
there is a “wall of separation” between government and religion and that government should not
have any connection whatsoever to religion. Under the first approach, the government could pro-
vide textbooks to all religious schools. In contrast, the second view would prohibit the government
from providing textbooks to all religious schools.
In the area of criminal law, the central concern is the Free Exercise Clause. The rule is that
individuals have complete freedom of religious belief, although religious practice may be limited.
There are several ways in which government regulation may collide with an individual’s religious
belief.
The general rule is that the courts will uphold laws that may affect an individual’s religious
practice that are directed to all individuals whether or not they are members of a religion. In 1990,
in Employment Division v. Smith, the U.S. Supreme Court held that a law prohibiting consumption
of the hallucinogenic drug peyote did not violate the free exercise of religion of members of the
Native American Church, whose adherents used peyote as a sacrament. The Court held that the
law applied to all individuals and that members of the Native American Church were not singled
out for prosecution.57 In 1878, in Reynolds v. United States, the Supreme Court upheld the criminal
prosecution of polygamist members of the Church of Jesus Christ of Latter-day Saints.58
On the other hand, courts are required to demonstrate a compelling interest to justify a law
that targets members of a religious faith. In 1993, in Church of the Lukumi Babalu Aye, Inc. v. Hialeah,
the Court struck down a city ordinance that prohibited the ritualistic sacrifice of animals, which
was a sacred practice of the Santeria religion.59 Justice Anthony Kennedy wrote that the “laws in
question were enacted by officials who did not understand, failed to perceive, or chose to ignore
the fact that their official actions violated the Nation’s essential commitment to religious freedom.”
Courts generally have held that while an adult may refuse medical treatment, a parent may
not deny medical treatment to a child based on the parent’s religious belief. The state’s interest in
protecting the life of the child takes precedence over the religious belief of the parent.60
In 1993, Congress adopted the Religious Freedom Restoration Act (RFRA), and various state
legislatures have passed similar laws. The RFRA requires federal courts to apply a strict scrutiny test
in determining whether a law that substantially burdens an individual’s free exercise of religion is
constitutional even if this burden results from a rule that applies to all religions. State RFRA laws
typically provide that the laws do not provide legal protection to individuals who invoke religious
reasons to justify discrimination against other individuals based on race, gender, national origin,
or sexual preference.
In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA),
42 U.S.C. § 2000, which prohibits federal and state laws that burden the ability of prisoners to
worship. In 2015, in Holt v. Hobbs, the U.S. Supreme Court held that an Arkansas prison regulation
that prohibited inmates from growing beards other than for medical reasons violated the religious
liberty of a Muslim inmate who sought to grow a “short,” one-half-inch beard.61
The right to privacy is a relatively recent right that is increasingly at the center of political
debate.
PRIVACY
The idea that there should be a legal right to privacy was first expressed in an 1890 article in the
Harvard Law Review written by Samuel D. Warren and Louis D. Brandeis, who was later appointed
to the U.S. Supreme Court. The two authors argued that the threats to privacy associated with the
dawning of the twentieth century could be combated through recognition of a civil action (legal
suit for damages) against those people who intrude into individuals’ personal affairs.62
In 1905, the Supreme Court of Georgia became the first court to recognize an individual’s right
to privacy when it ruled that the New England Life Insurance Company unlawfully used the image
of artist Paolo Pavesich in an advertisement that falsely claimed that Pavesich endorsed the com-
pany.63 This decision served as a precedent for the recognition of privacy by courts in other states.
The Constitutional Right to Privacy

A constitutional right to privacy was first recognized in Griswold v. Connecticut in 1965.64 The
U.S. Supreme Court proclaimed that although privacy was not explicitly mentioned in the U.S.
Constitution, it was implicitly incorporated into the text. The case arose when Griswold, along
with Professor Buxton of Yale Medical School, provided advice to married couples on the preven-
tion of procreation through contraceptives. Griswold was convicted of being an accessory to the
violation of a Connecticut law that provided that any person who uses a contraceptive shall be
fined not less than $50 or imprisoned not less than sixty days nor more than one year or be both
fined and imprisoned.
Justice William O. Douglas noted that although the right to privacy was not explicitly set forth
in the Constitution, this right was “created by several fundamental constitutional guarantees.”
According to Justice Douglas, these fundamental rights create a “zone of privacy” for individuals.
In a famous phrase, Justice Douglas noted that the various provisions of the Bill of Rights pos-
sess “penumbras, formed by emanations from those guarantees . . . [that] create zones of privacy.”
Justice Douglas cited a number of constitutional provisions that together create the right to privacy.
The right of association contained in the penumbra of the First Amendment is one; the Third
Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace
without the consent of the owner is another facet of that privacy. The Fourth Amendment explic-
itly affirms the “right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” The Fifth Amendment’s Self-Incrimination Clause
“enables the citizen to create a zone of privacy that Government may not force him to surrender
to his detriment.” The Ninth Amendment provides that “[t]he enumeration in the Constitution of
certain rights shall not be construed to deny or disparage others retained by the people.”
In contrast, Justice Arthur Goldberg argued that privacy was found within the Ninth
Amendment, which provides that the statement of certain rights does not mean that there are not
other rights retained by the people, and Justice John Marshall Harlan contended that privacy is a
fundamental aspect of individual “liberty” within the Fourteenth Amendment.
We nevertheless should take note of Justice Hugo Black’s dissent in Griswold questioning
whether the Constitution provides a right to privacy, a view that continues to attract significant
support. Justice Black observed that “I like my privacy as well as the next one, but I am nevertheless
compelled to admit that government has a right to invade [my privacy] unless prohibited by some
specific constitutional provision.”
The right to privacy recognized in Griswold guarantees that we are free to make the day-to-day
decisions that define our unique personality: what we eat, read, and watch; where we live and how
we spend our time, dress, and act; and with whom we associate and work. In a totalitarian society,
these choices are made by the government, but in the U.S. democracy, these choices are made by
the individual. The courts have held that the right to privacy protects several core concerns:
•• Sanctity of the Home. Freedom of the home and other personal spaces from arbitrary govern-
mental intrusion
•• Intimate Activities. Freedom to make choices concerning personal lifestyle and an individu-
al’s body and reproduction
•• Information. The right to prevent the collection and disclosure of intimate or incriminating
information to private industry, the public, and governmental authorities
•• Public Portrayal. The right to prevent your picture or endorsement from being used in an
advertisement without permission or to prevent the details of your life from being falsely
portrayed in the media65
In short, as noted by Supreme Court Justice Brandeis, “The makers of our Constitution under-
took to secure conditions favorable to the pursuit of happiness. . . . They conferred as against the
Government, the right to be let alone—the most comprehensive of rights and the right most
valued by civilized men.”66 (See Table 2.2.)
Table 2.2 The Right to Privacy

Key U.S. Supreme Court Decisions on Privacy
Case Name and Citation Case Summary
Eisenstadt v. Baird, 405 U.S. In 1971, the Supreme Court extended Griswold and ruled that a
438 (1972) Massachusetts statute that punished individuals who provided
contraceptives to unmarried individuals violated the right to privacy. Justice
Brennan wrote that “if the right to privacy means anything, it is the right of
the individual, married or single, to be free from unwarranted governmental
intrusion into matters so fundamentally affecting a person as the decision
whether to bear or beget a child.”
Carey v. Population Services The Supreme Court, in 1977, declared a New York law unconstitutional
International, 431 U.S. 678 that made it a crime to provide contraceptives to minors and for anyone
(1977) other than a licensed pharmacist to distribute contraceptives to persons
over sixteen. Justice Brennan noted that this imposed a significant burden
on access to contraceptives and impeded the “decision whether or not to
beget or bear a child” that was at the “very heart” of the “right to privacy.”
Roe v. Wade, 410 U.S. 113 In 1973, in Roe v. Wade, the Supreme Court ruled a Texas statute
(1973) unconstitutional that made it a crime to “procure an abortion.”
Justice Blackmun wrote that the “right to privacy . . . is broad enough
to encompass a woman’s decision whether or not to terminate her
pregnancy.” The Supreme Court later ruled in Planned Parenthood v. Casey,
505 U.S. 833 (1992), that Pennsylvania’s requirement that a woman
obtain her husband’s consent unduly interfered with her access to an
abortion.
Gonzales v. Carhart, 550 The Supreme Court upheld the authority of Congress to prohibit “partial-
U.S. 124 (2007) birth abortion.” The Court reasoned that there is a substantial government
interest in protecting the fetus and that it was uncertain whether this
procedure ever is required to preserve the life of the mother.
Stanley v. Georgia, 394 U.S. A search of Stanley’s home for bookmaking paraphernalia led to the
557 (1969) seizure of three reels of film portraying obscene scenes. Justice Marshall,
in his 1969 decision, concluded that “whatever the power of the state
to control public dissemination of ideas inimical to the public morality, it
cannot constitutionally premise legislation on the desirability of controlling
a person’s private thoughts.”
The Constitutional Right to Privacy and

Same-Sex Relations Between Consenting Adults in the Home
Precisely what activities are within the right of privacy in the home? In answering this question,
we must balance the freedom to be left alone against the need for law and order. The issue of sod-
omy confronted judges with the question of whether laws upholding sexual morality must yield
to the demands of sexual freedom within the home.
In 1986, in Bowers v. Hardwick, the Supreme Court affirmed Hardwick’s sodomy conviction
under a Georgia statute.67 Justice White failed to find a fundamental right deeply rooted in the
nation’s history and tradition to engage in acts of consensual sodomy, even when committed in
the privacy of the home. He pointed out that sodomy was prohibited by all thirteen colonies at the
time the constitution was ratified, and twenty-five states and the District of Columbia continued
to criminally condemn this conduct.
In 2003, in Lawrence v. Texas, the Supreme Court called in doubt the historical analysis in
Bowers. The Court noted that only thirteen states currently prohibited sodomy and that in these
states there is a “pattern of nonenforcement with respect to consenting adults in private.”68 The
Court held that the right to privacy includes the fundamental right of two consenting males to
engage in sodomy within the privacy of the home.
You Decide 2.4 The plaintiffs allege that the right to privacy under the U.S. Constitution. Are they cor-
Florida law requiring motorcyclists rect? See Picou v. Gillum, 874 F.2d 1519 (11th Cir.
to wear helmets violates their 1989).
The Right to Privacy and the Fourth Amendment

The right to privacy is the philosophical basis of the Fourth Amendment protection of indi-
viduals’ homes, papers, persons, and effects from “unreasonable searches and seizures” conducted
without a search warrant founded on probable cause. In the famous case of Katz v. United States,
Katz was suspected of using phones in two public phone booths to transmit unlawful interstate
gambling information. The government without obtaining a search warrant placed a recording
device on the phone booths and recorded Katz’s conversations about gambling on college foot-
ball. Katz’s conviction for transmitting gambling information was overturned. The Supreme Court
reasoned that when Katz shut the door of the phone booth and carried on his conversations he
expressed a reasonable expectation of privacy and that what an individual “seeks to preserve as
private, even in an area accessible to the public,” merits constitutional protection. When the gov-
ernment undertakes a search and seizure that impedes on an individual’s expectation of privacy, it
is required to obtain a warrant from a judicial official that strictly limits the extent of the search.
FBI agents in Katz improperly decided on their own whether and how long to listen to Katz’s con-
versations. Note that the Supreme Court in Katz clarified that our words as well as physical objects
and our persons are protected under the Fourth Amendment.69
The Fourth Amendment is at the core of the contemporary debates about technology. The
U.S. Supreme Court in United States v. Jones held that law enforcement unconstitutionally attached
a GPS to the automobile of a suspected drug trafficker without a valid search warrant and mon-
itored his movements for twenty-eight days. Justice Samuel Alito noted that the government’s
surveillance of Jones violated his reasonable expectation of privacy because the twenty-eight-day
warrantless surveillance could potentially reveal the most intimate aspects of Jones’s life. A person
who knows all of another person’s travels “can deduce whether he is a weekly church goer, a heavy
drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment,
an associate of particular individuals or political groups—and not just one such fact about a per-
son, but all such facts.”70 The Court also has held that a search warrant is required to search the
smartphone of an arrestee.71 In Kyllo v. United States, government agents suspected that Danny
Kyllo was growing marijuana using high-intensity lamps. The agents without a search warrant
aimed a thermal-imaging device at Kyllo’s home. Based on the results from the thermal imaging
and other evidence, the agents obtained a search warrant to search Kyllo’s home and seized one
hundred marijuana plants. The government argued that a search warrant was not required because
the thermal-imaging device measured heat emitted outside of the home that had no expectation of
privacy. However, the late Justice Antonin Scalia concluded that the Fourth Amendment provides
a high expectation of privacy to the home and that where the government uses a device that is not
in general public use to explore details of the home that would have previously been unknown
without a physical intrusion the government is required to obtain a search warrant before invading
the privacy of a homeowner.72
The tension between privacy and the social interest in criminal investigation and detection
arose when the FBI obtained a court order requiring Apple to help “unlock” the phone used by
Syed Farook, one of the attackers who killed fourteen people in San Bernardino, California. The FBI
argued that this information was essential to determine whether other individuals were involved
in the terrorist attack, although Apple contended that the government was requiring the company
to “bypass” or to “disable” a central security feature of the phone and compromise the privacy
depended upon by users of the iPhone.
THE RIGHT TO BEAR ARMS

The Second Amendment to the U.S. Constitution provides that, “[a] well regulated Militia being
necessary to the security of a free State, the right of the people to keep and bear Arms shall not be
infringed.”
The meaning of the Second Amendment has been the topic of considerable debate. Courts his-
torically focused on the first clause of the amendment that recognizes the importance of a “well
regulated Militia” and held that the amendment protects the right of individuals to possess arms in
conjunction with service in an organized government militia. In 1939, in United States v. Miller, the
Supreme Court upheld the constitutionality of a federal law prohibiting the interstate shipment of
sawed-off shotguns, reasoning that the Second Amendment protections are limited to gun ownership
that has “some reasonable relationship to the preservation or efficiency of a well regulated militia.”73
Gun rights activists contended that the Second Amendment protection of the “right of the
people to keep and bear Arms” was not limited to members of the militia. They argued that the
Second Amendment also protects individuals’ right to possess firearms “unconnected” with service
in a militia. The Founding Fathers, according to gun activists, viewed gun ownership as essential
to the preservation of individual liberty. A state or federal government could abolish the state
national guard and leave citizens unarmed and vulnerable. The framers concluded that the best
way to safeguard and to protect the people was to guarantee individuals’ right to bear arms.
In District of Columbia v. Heller, the U.S. Supreme Court adopted the view of gun rights activists.
The Court majority held that the Second Amendment protects the right of individuals to possess
firearms.74
A District of Columbia (D.C.) ordinance prohibited the possession of handguns and declared
that it was a crime to carry an unregistered firearm. A separate portion of the D.C. ordinance
authorized the chief of police to issue licenses for one-year periods. Lawfully registered handguns
were required to be kept “unloaded and dissembled or bound by a trigger lock or similar device”
when not “located” in a place of business or used for lawful recreational activities.
Justice Scalia writing for a five-judge majority held that the D.C. ordinance was unconstitu-
tional because the regulations interfered with the ability of law-abiding citizens to use a firearm for
self-defense in the home, the “core lawful purpose” of the right to bear arms. “Undoubtedly some
think that the Second Amendment is outmoded in a society where our standing army is the pride
of our Nation, where well-trained police forces provide personal security, and where gun violence
is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role
of this Court to pronounce the Second Amendment extinct.”
The Court decision noted that while D.C. could not constitutionally ban the possession of
firearms in the home, the right to bear arms was subject to limitations. The judgment did not
(1) limit the ability of states to prohibit possession of firearms by felons and the mentally challenged;
(2) prohibit laws forbidding the carrying of firearms in “sensitive places,” such as schools and gov-
ernment buildings; (3) prevent the regulation of the commercial sale of arms; or (4) prevent states
and localities from banning the possession of dangerous and unusual weapons or from requiring
the safe storage of weapons.
Heller, although important for defining the meaning of the Second Amendment, applied only
to D.C. and to other federal jurisdictions. In 2010, in McDonald v. Chicago, residents of Chicago and
the Chicago suburb of Oak Park, Illinois, challenged local ordinances that were almost identical
to the law that the Court struck down as unconstitutional in the federal enclave of Washington,
D.C.75 The Supreme Court addressed whether the Second Amendment right of individuals to bear
arms extended to the states as well as to the federal government.
The Second Amendment was one of the few amendments in the Bill of Rights that had not
been incorporated into the Fourteenth Amendment and made applicable to the states. The result
was that even after Heller, the right to possess firearms was not considered a fundamental right
protected by the Fourteenth Amendment, and state governments were free to restrict or even to
prohibit the possession of firearms.
The Fourteenth Amendment prohibits a state from denying an individual life, liberty, or prop-
erty without due process of law. The question in McDonald v. Chicago was whether the right to keep
and to bear arms was a liberty interest protected under the Due Process Clause of the Fourteenth
Amendment that was applicable to the states. Justice Samuel Alito wrote that self-defense is a “basic
right, recognized by many legal systems from ancient times to the present day.” He concluded that
the Second Amendment right to possess firearms in the home for the purpose of self-defense is
incorporated into the Fourteenth Amendment and is applicable to the states. The right to keep and
bear arms for purposes of self-defense is “among the fundamental rights necessary to our system of
ordered liberty,” which is “deeply rooted in this Nation’s history and tradition.” A number of state
constitutions already protected the right to own and to carry arms. The incorporation of the Second
Amendment into the Fourteenth Amendment clearly established that the right to bear arms for
the purpose of self-defense is a fundamental right that may not be infringed by state governments.
In 2013, in Moore v. Madigan, the Seventh Circuit Court of Appeals in an important decision
held unconstitutional an Illinois flat ban on carrying a loaded firearm within accessible reach
outside the home. The only exceptions to this prohibition under Illinois law were police officers
and other security personnel, hunters, and members of target shooting clubs. The Seventh Circuit
Court of Appeals held that although both Heller and McDonald held that “‘the need for defense of
self, family, and property is most acute’ in the home,” this does not mean “it is not acute outside
the home” and pointed out that Heller recognized a broader Second Amendment right than the
right to have a gun in one’s home when the decision noted that the Second Amendment “guar-
antee[s] the individual right to possess and carry weapons in case of confrontation.” The Seventh
Circuit noted that confrontations are not limited to the home, and that as a result the Illinois law
therefore is in violation of individuals’ Second Amendment rights.76 In July 2013, the Illinois legis-
lature subsequently passed a statute permitting individuals to obtain a license to carry a loaded or
unloaded concealed weapon on their person or within a vehicle.
The precise meaning of the decisions in Heller and McDonald will not be clear until various
state gun control laws are reviewed by the judiciary. This includes local and state laws restrict-
ing possession of firearms in schools, in religious institutions, and at other locations; laws limit-
ing large-capacity magazines; laws prohibiting individuals convicted of domestic violence from
possessing firearms; and laws restricting the possession of assault rifles. In 2015, in Caetano v.
Massachusetts, the U.S. Supreme Court indicated that the Second Amendment protects Tasers and
held that the protection of the Second Amendment is not limited to weapons in existence at the
time the Second Amendment was drafted and is not limited to “weapons of war.”77
In January 2016, President Barack Obama announced a number of measures intended to fur-
ther regulate firearms in the United States. President Obama contended that most of these mea-
sures were within his executive authority, although some of the measures required congressional
action. The president’s most important measures involved the extension of background checks.
The National Instant Criminal Background Check System (NICS) was created by Congress to pre-
vent guns from being sold by licensed firearm dealers to prohibited individuals. Under President
Obama’s executive order, individuals considered to be in the business of selling guns whether in
a store, at a gun show, or over the Internet must be federally licensed and conduct background
checks on buyers. Federal law subjects individuals who fail to obtain a license or who fail to con-
duct a background check on a buyer to criminal penalties.
CRUEL AND UNUSUAL PUNISHMENT

The Eighth Amendment states that “[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” Professor Wayne LaFave lists three
approaches to interpreting the clause: (1) it limits the methods employed to inflict punishment,
(2) it restricts the amount of punishment that may be imposed, and (3) it prohibits the criminal
punishment of certain acts.78
Methods of Punishment
There is agreement that the Eighth Amendment prohibits punishment that was considered
cruel at the time of the amendment’s ratification, including burning at the stake, crucifixion,
breaking on the wheel, drawing and quartering, the rack, and the thumbscrew.
The vast majority of courts have not limited cruel and unusual punishment to acts con-
demned at the time of the passage of the Eighth Amendment and have viewed this as an evolving
concept. The U.S. Supreme Court in Trop v. Dulles stressed that the Eighth Amendment “must
draw its meaning from the evolving standards of decency that mark the progress of a maturing
society.”79
The death penalty historically has been viewed as a constitutionally acceptable form of pun-
ishment. The Supreme Court noted that punishments are “cruel when they involve torture or a
lingering death; but the punishment of death is not cruel within the meaning of that word as used
in the Constitution. [Cruelty] implies there is something inhuman and barbarous—something
more than the mere extinguishment of life.”80
The Supreme Court has rejected the contention that death by shooting and electrocution is
cruel and barbarous, noting in 1890 that the newly developed technique of electricity was a “more
humane method of reaching the result.” In Louisiana ex rel. Francis v. Resweber, Francis was strapped
in the electric chair and received a bolt of electricity before the machine malfunctioned.81 The U.S.
Supreme Court rejected the claim that subjecting the petitioner to the electric chair a second time
constituted cruel and unusual punishment. The Court observed that there was no intent to inflict
unnecessary pain, and the fact that “an unforeseeable accident prevented the prompt consumma-
tion of the sentence cannot . . . add an element of cruelty to a subsequent execution.” In 2008, in
Baze v. Rees, the U.S. Supreme Court affirmed the constitutionality of the execution of individuals
through the use of lethal injection.82 (See Criminal Law in the News below.)
In 2011, in Brown v. Plata, Justice Anthony Kennedy affirmed a lower court judgment requiring
California prisons to release roughly forty-six thousand inmates to relieve prison overcrowding.83
The California system housed twice as many prisoners as the institutions were designed to hold.
Justice Kennedy concluded that the overcrowding of California prisons constituted unconstitu-
tional cruel treatment because the prison system lacked the resources to provide adequate health
and mental health care to the large prison population. Overcrowding also had led to rising tension
and to violence.
The Amount of Punishment: The Death Penalty

The prohibition on cruel and unusual punishment has also been interpreted to require that pun-
ishment is proportionate to the crime. In other words, the “punishment must not be excessive”;
it must “fit the crime.” Judges have been particularly concerned with the proportionality of the
CRIMINAL LAW IN THE NEWS

European manufacturers of lethal injection drugs like with the execution. Lockett’s execution in Oklahoma
sodium thiopental and pentobarbital in the past several took forty-three minutes. Lockett reportedly was moan-
years decided to stop selling these drugs to American ing in pain because an improperly placed intravenous
states for use in executions. A shortage of these drugs line prevented the drugs from flowing directly into his
led correctional authorities to experiment with new com- bloodstream. Wood also was executed using mida-
binations of drug cocktails. The executions of Dennis zolam and according to observers gasped for air over
McGuire in Ohio in January 2014, Clayton D. Lockett six hundred times during the nearly two hours it took
in Oklahoma in April 2014, and Joseph R. Wood III in for him to die.
Arizona in July 2014 led to a questioning of executions The three inmates all had been convicted of brutal
through lethal injection that included the sedative mida- crimes, and the families of the victims stressed that their
zolam. Midazolam is used to induce a coma-like sleep. loved ones had suffered to a much greater extent than their
A second drug paralyzes the individual, and a third drug assailants. Lockett, for example, had been convicted of
induces a heart attack. McGuire’s execution in Ohio shooting a nineteen-year-old woman and burying her alive.
required roughly twenty-five minutes, although death In reaction to the shortage of drugs used in
normally should occur within ten minutes. Witnesses lethal injection, Oklahoma and Utah have authorized
reported that McGuire appeared to be gasping for air the use of firing squads if the required chemicals
and seemed to be conscious of the pain associated are unavailable thirty days before an execution is
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scheduled to take place. Oklahoma, in April 2015, Justice Sonia Sotomayor in her dissenting opin-
also adopted legislation providing death by asphyxi- ion pointed out that the three inmates had made the
ation using nitrogen gas. Tennessee has authorized serious allegation that Oklahoma’s three-drug protocol
the use of the electric chair to execute individuals if was the chemical equivalent to being “burned alive.”
lethal injection drugs are unavailable. Justice Sotomayor stressed that “under the court’s
In June 2015 in Glossip v. Gross (576 U.S. __ rule [requiring a less painful alternative], it would not
[2015]), the Supreme Court in a 5-4 decision held that matter whether the state intended to use midazolam,
Oklahoma inmates challenging the state’s use of mida- or instead to have petitioners drawn and quartered,
zolam as the first drug in a three-drug protocol “fail[ed] slowly tortured to death or actually burned alive.”
to establish a likelihood of success on the merits of States have become increasingly varied in the drugs
their claim that the use of midazolam violates the they use to carry out executions. In January 2014, six
Eighth Amendment.” Justice Samuel A. Alito Jr. in his executions were conducted in six different states using
majority decision held that the inmates were unable to four different protocols. In October 2015, Oklahoma
establish that the challenged drug created a substan- halted the execution of Glossip after prison officials
tial risk of severe pain and that the inmates had failed found that the wrong drugs had been delivered by the
to identify a less painful alternative. Justice Alito also state’s supplier of execution drugs and discovered that
noted that the inmates should not benefit from the fact in January 2014 the state had executed an inmate
that anti–death penalty activists had pressured foreign using the wrong drug. Glossip’s attorneys have contin-
pharmaceutical companies to “refuse to supply the ued to insist on his innocence. Should states continue
drugs used to carry out death sentences.” to rely on lethal injection to execute individuals?
death penalty. This reflects an understandable concern that a penalty that is so “unusual in its
pain, in its finality and in its enormity” is imposed in an “evenhanded, nonselective, and nonarbi-
trary” manner against individuals who have committed crimes deserving of death.84
In Gregg v. Georgia, in 1976, the U.S. Supreme Court approved a Georgia statute designed to
ensure the proportionate application of capital punishment.85 The Georgia law limited the dis-
cretion of jurors to impose the death penalty by requiring jurors to find that a murder had been
accompanied by one of several aggravating circumstances. This evidence was to be presented at
a separate sentencing hearing and was to be weighed against any and all mitigating consider-
ations. Death sentences were to be automatically reviewed by the state supreme court, which was
charged with ensuring that the verdict was supported by the facts and that capital punishment
was imposed in a consistent fashion. This system was intended to ensure that the death penalty
was reserved for the “worst of the worst” homicides and offenders and was not “cruelly imposed
on undeserving defendants.” The Supreme Court has held that the question of aggravating cir-
cumstances and the determination of whether a defendant merits capital punishment is to be
decided by the jury rather than by a judge.86 In the recent case of Hurst v. Florida, the Supreme
Court held that a Florida sentencing procedure was unconstitutional because the judge rather
than the jury decided whether to impose capital punishment. The judge under the Florida law
was to give the jury’s recommendation whether to impose the death sentence “great weight”
although the judge was authorized to independently find and weigh the aggravating and miti-
gating circumstances.87
Are there offenses other than aggravated and intentional murder that merit the death penalty?
What of aggravated rape? In Coker v. Georgia, in 1977, the U.S. Supreme Court ruled that death
was a grossly disproportionate and excessive punishment for the aggravated rape of an adult and
constituted cruel and unusual punishment.88 Thirty-one years later, in Kennedy v. Louisiana, the
Supreme Court held that imposition of capital punishment for the rape of a child constituted cruel
and unusual punishment.89 The Court also has held that the Eighth Amendment prohibits execu-
tion of the mentally challenged90 and individuals convicted of felony murder who neither killed
nor attempted to kill nor intended to kill the victim.91
The Supreme Court held, in 1988 in Thompson v. Oklahoma, that it is unconstitutional to exe-
cute a person under the age of sixteen at the time of his or her offense.92 In 2005, in Roper v.
Simmons, the Supreme Court held that the execution of individuals who are sixteen or seventeen
years of age constitutes cruel and unusual punishment.93 Five years later, in Graham v. Florida,
the Supreme Court ruled that sentencing a juvenile to life imprisonment without parole for a
nonhomicide offense violated the Eighth Amendment prohibition on cruel and unusual punish-
ment.94 The Court held that a state is required to provide defendants like Graham “some meaning-
ful opportunity to obtain release based on demonstrated maturity and rehabilitation.” The Eighth
Amendment, however, does not prohibit a state from concluding that a juvenile should remain in
prison for life. In 2012, in Miller v. Alabama, the Supreme Court held that mandatory life impris-
onment without parole for juveniles under eighteen convicted of homicide was unconstitutional.
Judges are required to consider the offender’s age, the nature of the offense, and other factors before
sentencing a juvenile to life imprisonment without parole.95 In 2016, in Montgomery v. Louisiana,
the Supreme Court held that Miller should be applied to individuals sentenced to life imprisonment
before the Court’s decision in Miller. Justice Kennedy held that “[t]hose prisoners who have shown
an inability to reform will continue to serve life sentences,” although “the opportunity for release
will be afforded to those who demonstrate the truth of Miller’s central intuition—that children who
commit even heinous crimes are capable of change.”96
In 2015, the twenty-eight executions carried out were the fewest since 1991 when there were
fourteen executions. Only six states carried out executions. Texas accounted for thirteen execu-
tions, Missouri carried out six, and Georgia carried out five executions. Ten of the twenty-eight
individuals executed were African American; six of the twenty-eight individuals executed were
convicted of murdering an African American.
The forty-nine death sentences handed down to defendants by judges in 2015 marked a 33 per-
cent decline from 2014 and the lowest number imposed since 1973. Riverside County, California,
sentenced eight individuals to death, which was more than the number of death sentences handed
down by any state other than Florida, which handed down nine death sentences. Six individuals
on death row were exonerated in 2015.
As of January 2015, only thirty-one states authorized capital punishment.
The Amount of Punishment: Sentences for a Term of Years

The U.S. Supreme Court has remained sharply divided over whether the federal judicial branch
is constitutionally entitled to extend its proportionality analysis beyond the death penalty to
imprisonment for a “term of years.” The Court appears to have accepted that the length of a crim-
inal sentence is the province of elected state legislators and that judicial intervention should be
“extremely rare” and limited to sentences that are “grossly disproportionate” to the seriousness
of the offense.
In 2003, in Lockyer v. Andrade, the Supreme Court affirmed two consecutive twenty-five-years-
to-life sentences for a defendant who on two occasions stole videotapes with an aggregate value of
roughly $150 from two stores.97 In Ewing v. California, decided on the same day as Lockyer, Justice
Sandra Day O’Connor affirmed a twenty-five-year sentence for Daniel Ewing under California’s
“Three Strikes and You’re Out” law.98 Ewing, while on parole, was adjudged guilty of the grand
theft of three golf clubs worth $399 apiece. He had previously been convicted of several seri-
ous or violent felonies. Justice O’Connor ruled that the Supreme Court was required to respect
California’s determination that it possessed a public safety interest in incapacitating and deterring
recidivist felons like Ewing, whose previous offenses included robbery and three residential bur-
glaries. In 2012, California voters passed a referendum requiring that the “third strike” involve a
serious or violent crime.
Criminal Punishment and Status Offenses

In Robinson v. California, the U.S. Supreme Court overturned Robinson’s conviction under a
California law that declared it was a criminal offense “to be addicted to the use of narcotics.”99
The Supreme Court ruled that it was cruel and unusual punishment to impose criminal penal-
ties on Robinson based on his conviction of the status offense of narcotics addiction, which
a majority of the judges considered an addictive illness. Justice Potter Stewart noted that “even
one day in prison would be cruel and unusual punishment for the ‘crime’ of having a common
cold. It is unlikely that any state would make it a criminal offense for a person to be mentally
ill, or a leper, or to be afflicted with venereal disease. [Such a] law would be universally thought
to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth
amendments.”
CRIMINAL LAW AND PUBLIC POLICY

Barack Obama in 2015 became the first U.S. pres- spaces, were overwhelmed by sensory stimulation, and
ident to visit a federal prison and at the time asked suffered from various psychological disorders. Studies
whether “we really think it makes sense to lock so also indicate that solitary confinement leads to higher
many people alone in tiny cells for 23 hours per day, rates of recidivism.
often for months or years.” Juan E. Mendez, special rapporteur on torture
In 1993, Craig Haney, a social psychologist, inter- for the United Nations, concluded that confinement
viewed inmates in solitary confinement at Pelican Bay of prisoners in solitary at Pelican Bay amounted “to
State Prison in California, a super-maximum-security torture or cruel, inhumane or degrading treatment or
institution.100 Twenty years later, he reinterviewed punishment” and was “contrary to the practices of civ-
seven of the inmates who had spent two decades in ilized nations.”
windowless 6- by 11.6-foot isolation cells and other Roughly seventy-five thousand state and federal
inmates who had spent at least ten years in solitary inmates as of 2015 were held in solitary confinement
confinement at Pelican Bay. The inmates who were in the United States, most of whom are confined in
interviewed had been sentenced to prison for violent their cells for twenty-three hours per day and only are
crimes although they primarily were confined in isola- allowed outside of their cells for showers, exercise, or
tion because they were gang members or gang asso- medical visits.
ciates who posed a threat to correctional personnel The use of isolation cells escalated in the 1980s
or to other inmates. The only way out of isolation for and 1990s when prison overcrowding and long-term
these inmates was to become an informant and to sentences and the increased incarceration of gang
risk retribution for being a snitch. Individuals in soli- members led to an escalation of violence that prison
tary confinement at Pelican Bay (Special Housing Unit officials controlled through the isolation of inmates
or SHU) were denied personal phone calls and were considered to pose a threat to the stability of institu-
prohibited from physically interacting with visitors. tions. Solitary confinement also was used to provide
Haney found that there had been a complete men- security for gay, bisexual, transgender, and physically
tal and psychological deterioration of the inmates, challenged prisoners.
who resembled zombies devoid of emotions and who California, Colorado, Washington, Illinois, Oregon,
possessed an inability to interact with other human and New York have introduced reforms to their system
beings. of solitary confinement. New York ended a system in
Haney described the men as suffering from pro- which four thousand inmates were locked up for twen-
found sadness. “They were grieving for their lost lives, for ty-three hours a day, in 6- by 10-foot cells with little
their loss of connectedness to the social world and their human contact or access to rehabilitative programs
families outside, and also for their lost selves. . . . Most and a diet that at times was restricted to a slab of
of them really did understand that they had lost who they bread and potatoes known as “the loaf.” In January
were, and weren’t sure of who they had become.” 2016, President Obama issued an executive order
Sixty-three percent of inmates in solitary for prohibiting the use of solitary confinement in federal
more than ten years said they were on the verge of prisons against juveniles and prisoners who commit
an “impending breakdown,” but only 4 percent of the “low-level infractions.” Obama recounted the story of
maximum-security inmates who were interviewed who sixteen-year-old Kalief Browder, who was sent to Rikers
were not in solitary confinement shared this feeling. Island in New York City in 2010 to await trial after being
Seventy-three percent of inmates in isolation reported accused of stealing a backpack. Kalief was released in
chronic depression, and 78 percent felt emotionally 2013 after spending nearly two years in solitary con-
empty, as compared to 48 percent and 36 percent finement without ever standing trial or being convicted.
among the maximum-security inmates who were not in Kalief subsequently committed suicide at age twen-
solitary confinement. The inmates in long-term solitary ty-two. President Obama in explaining his executive
also suffered from anxiety, paranoia, perceptual distur- order in an op-ed wrote, “How can we subject prison-
bances, and deep depression. ers to unnecessary solitary confinement, knowing its
Even after being released, inmates who had spent effects, and then expect them to return to our commu-
extended time in solitary confinement were easily nities as whole people? . . . It doesn’t make us safer.
startled, were fearful of crowds, sought out confined It’s an affront to our common humanity.”
CASE ANALYSIS
At least eight states now have provisions allowing the carrying of concealed weapons on
public postsecondary campuses. In Texas, the state legislature in 2015 approved carrying
concealed weapons on campus starting in August 2016. In October 2015, California Governor Jerry
Brown signed legislation prohibiting individuals from carrying concealed firearms on university
campuses.
In DiGiacinto v. Rector and Visitors of George Mason University, the Virginia Supreme Court was
asked to decide whether the prohibition on the “possession or carrying of any weapon” at George
Mason University (GMU) was in violation of the right to bear arms protected under the Second
Amendment and under the Virginia Constitution.
Is There a Second Amendment Right to Possess Firearms

on a College Campus?
DiGiacinto v. Rector and Visitors of George Mason University, 704 S.E.2d

365 (Va. 2011)
In this appeal, we consider whether 8 VAC § 35-60-20, Second Amendment of the United States Constitution,
a George Mason University regulation governing concerning all issues in the instant case. Thus, for the
the possession of weapons on its campus, violates purposes of this opinion, we analyze DiGiacinto’s state
the Constitution of Virginia or the United States constitutional rights and his federal constitutional
Constitution. Possession or carrying of any weapon by rights concurrently.
any person, except a police officer, is prohibited on The Supreme Court of the United States has
university property in academic buildings, adminis- held that the Second Amendment protects the right
trative office buildings, student residence buildings, to carry and possess handguns in the home for self-
dining facilities, or while attending sporting, enter- defense. . . . In McDonald, the Court further held that
tainment or educational events. Entry upon the afore- the Second Amendment applies to the states by way of
mentioned university property in violation of this the Fourteenth Amendment.
prohibition is expressly forbidden. 8 VAC § 35-60-20. The Supreme Court clearly stated in Heller, and a
DiGiacinto is not a student or employee of GMU, plurality of the Court reiterated in McDonald, that the
but he visits and utilizes the university’s resources, right to carry a firearm is not unlimited. In Heller, the
including its libraries. He desires to exercise his right Supreme Court specifically recognized that:
to carry a firearm not only onto the GMU campus but
also into the buildings and at the events. DiGiacinto Nothing in our opinion should be taken to
argued in his complaint that 8 VAC § 35-60-20 violates cast doubt on longstanding prohibitions on
his constitutional right to carry a firearm, that GMU the possession of firearms by felons and the
lacks statutory authority to regulate firearms, and that mentally ill, or laws forbidding the carrying
the regulation conflicts with state law. . . . Describing of firearms in sensitive places such as schools
8 VAC § 35-60-20 as “effectually a total ban” on the and government buildings, or laws imposing
right to bear arms on GMU’s campus . . . [DiGiacinto conditions and qualifications on the com-
argues that it] violates the historic understanding of mercial sale of arms.
the right to bear arms.
Like the United States Constitution, the The Supreme Court further explained its assertion
Constitution of Virginia also protects the right to bear by noting, “We identify these presumptively lawful
arms. . . . The Virginia General Assembly incorporated regulatory measures only as examples; our list does
the specific language of the Second Amendment—“the not purport to be exhaustive.”
right of the people to keep and bear arms shall not be Neither Heller nor McDonald casts doubt on laws or
infringed”—into the existing framework of Article I, regulations restricting the carrying of firearms in sensi-
§ 13 of the Constitution of Virginia. As a result, the tive places, such as schools and government buildings.
language in Article I, § 13 concerning the right to bear Indeed, such restrictions are presumptively legal.
arms is “substantially identical to the rights founded GMU has 30,000 students enrolled ranging from
in the Second Amendment.” age 16 to senior citizens, and over 350 members of the
We hold that the protection of the right to bear incoming freshman class would be under the age of
arms expressed in Article I, § 13 of the Constitution of 18. Also approximately 50,000 elementary and high
Virginia is co-extensive with the rights provided by the school students attend summer camps at GMU, and
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approximately 130 children attend the child study Commonwealth, the General Assembly has provided
center preschool there. All of these individuals use that this property “shall be transferred to and be
GMU’s buildings and attend events on campus. The known and taken as standing in the name and under
fact that GMU is a school and that its buildings are the control of the rector and visitors of George Mason
owned by the government indicates that GMU is a University.”
“sensitive place.” GMU promulgated 8 VAC § 35-60-20 to restrict
Unlike a public street or park, a university tradi- the possession or carrying of weapons in its facilities
tionally has not been open to the general public, “but or at university events by individuals other than police
instead is an institute of higher learning that is devoted officers. The regulation does not impose a total ban of
to its mission of public education.” Moreover, parents weapons on campus. Rather, the regulation is tailored,
who send their children to a university have a rea- restricting weapons only in those places where people
sonable expectation that the university will maintain congregate and are most vulnerable—inside campus
a campus free of foreseeable harm. Recognizing the buildings and at campus events. Individuals may still
sensitivity of the university environment, the General carry or possess weapons on the open grounds of GMU,
Assembly established “a corporate body composed of and in other places on campus not enumerated in the
the board of visitors of George Mason University” for regulation. We hold that GMU is a sensitive place and
the purpose of entrusting to that board the power that 8 VAC § 35-60-20 is constitutional and does not
to direct GMU’s affairs. Although the real estate and violate Article I, § 13 of the Constitution of Virginia or
personal property comprising GMU is property of the the Second Amendment of the federal Constitution.
CHAPTER SUMMARY
The United States is a constitutional democracy. The on the government to justify distinctions based on
government’s power to enact laws is constrained by race or ethnicity. Classifications on gender are subject
the Constitution. These limits are intended to safe- to intermediate scrutiny. Other differentiations are
guard the individual against the passions of the major- required only to meet a rational basis test.
ity and the tyrannical tendencies of government. The Freedom of expression is of vital importance in
restrictions on government also are designed to max- American democracy, and the Constitution protects
imize individual freedom, which is the foundation of speech that some may view as offensive and disrup-
an energetic and creative society and dynamic econ- tive. Courts may limit speech only in isolated situa-
omy. Individual freedom, of course, must be balanced tions that threaten social harm and instability. The
against the need for social order and stability. We all right to privacy protects individuals from governmen-
have been reminded that “you cannot yell ‘Fire!’ in a tal intrusion into the intimate aspects of life and cre-
crowded theater.” This chapter challenges you to locate ates “space” for individuality and social diversity to
the proper balances among freedom, order, and stabil- flourish.
ity. The rule of legality requires that individuals receive The First Amendment also protects the free exer-
notice of prohibited acts. The ability to live your life cise of religion. Laws that apply to all citizens consti-
without fear of unpredictable criminal punishment tutionally may interfere with religious practice. The
is fundamental to a free society. The rule of legality government has a heavy burden to justify laws that
provides the philosophical basis for the constitutional single out a religion or religions.
prohibition on bills of attainder and ex post facto laws. The U.S. Supreme Court has held that the Second
Bills of attainder prohibit the legislative punishment Amendment protects the right of individuals to pos-
of individuals without trial. Ex post facto laws prevent sess handguns for the purpose of self-defense in the
the government from criminally punishing acts that home. The full extent of the Second Amendment
were innocent when committed. The constitutional “right to bear arms” has yet to be determined.
provision for due process ensures that individuals are The Supreme Court has narrowed the applica-
informed of acts that are criminally condemned and tion of the death penalty in an effort to ensure that
that definite standards are established that limit the the punishment is proportionate to the character of
discretion of the police. An additional restriction on the offender and the nature of his or her offense. The
criminal statutes is the Equal Protection Clause. This Court defers to the legislature in evaluating sentences
prevents the government from creating classifications for a term of years.
that unjustifiably disadvantage or discriminate against Keep these limitations on criminal punishment in
individuals; a particularly heavy burden is imposed mind as you read the remainder of the text.
1. Explain the philosophy underlying the United 7. Discuss the constitutionality of laws that interfere
States’ constitutional democracy. What are the with the free exercise of religion.
reasons for limiting the powers of state and fed-
8. Where is the right to privacy found in the U.S.
eral government to enact criminal legislation? Are
Constitution? What activities are protected within
there costs as well as benefits in restricting gov-
this right?
ernmental powers?
9. What is the relationship between the right to
2. Define the rule of legality. What is the reason for privacy and the Fourth Amendment prohibition
this rule? against unreasonable searches and seizures?
3. Define and compare bills of attainder and ex post 10. Discuss the significance of recent cases interpret-
facto laws. List the various types of ex post facto ing the Second Amendment.
laws. What is the reason that the U.S. Constitution
prohibits retroactive legislation? 11. Summarize the requirements of the Eighth
Amendment regarding methods of punishment,
4. Explain the standards for laws under the Due the amount of punishment, and punishment and
Process Clause. status offenses.
5. Why does the U.S. Constitution protect freedom 12. Write a short essay on the constitutional restric-
of expression? Is this freedom subject to any tions on the drafting and enforcement of criminal
limitations? statutes.
6. What are the differences among the “rational 13. As a final exercise, consider life in a country that
basis,” “intermediate scrutiny,” and “strict scru- does not provide safeguards for civil liberties. How
tiny” tests under the Equal Protection Clause? would your life be changed?
LEGAL TERMINOLOGY
bill of attainder Fourth Amendment overbreadth

Bill of Rights hate speech privacy
constitutional democracy incitement to violent action rational basis test
Due Process Clause incorporation rule of legality
Eighth Amendment intermediate level of scrutiny Second Amendment
equal protection libel status offense
ex post facto law minimum level of scrutiny test strict scrutiny test
fighting words symbolic speech
nullum crimen sine lege, nulla poena
First Amendment sine lege true threat
Fourteenth Amendment obscenity void for vagueness
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to the You Decide questions, reprints of cases and statutes, online appendices, and more!
3 ELEMENTS OF CRIMES
Did the defendant negligently cause Learning Objectives

the death of the two-year-old victim?
1. Understand actus reus and mens rea and the
The defendant did not allow the two-year-old victim to con-
requirement of concurrence.
sume liquids after 8 p.m. in order to prevent him from
wetting the bed. The defendant also prevented the victim 2. Appreciate the difference between voluntary
from consuming liquids at other times in order to encour- and involuntary acts.
age him to consume solid food. . . . [T]he defendant gave
the victim little or nothing to drink from the morning of 3. Understand status offenses.
February 22, 2009, to the morning of February 26, 2009.
4. Know the circumstances in which an individual
Moreover, at some point during the victim’s stay, the
may be held liable for a failure to act.
defendant attempted to discourage him from drinking out
of cups belonging to other people. In order to accomplish 5. Know the definition of possession and the dif-
this, the defendant placed a small amount of hot sauce in ferent types of possession.
a cup and left it on the kitchen table. The victim consumed
hot sauce from a cup on at least one occasion. 6. Appreciate the difference between specific
In the days immediately preceding his death, the victim intent, general intent, and constructive intent.
began to exhibit numerous symptoms of dehydration. He
had dry, cracked lips, a sunken face and a diminished appe- 7. Know the difference between purposely, know-
tite. He also had lost a significant amount of weight. On the ingly, recklessly, and negligently—the criminal
morning of February 26, 2009, the defendant discovered intents established by the Model Penal Code.
that the victim was not breathing. Shortly thereafter, the
8. Know the definition of a strict liability offense.
defendant contacted emergency personnel by telephone.
. . . The deputy chief medical examiner later confirmed that 9. Understand transferred intent.
the child had died due to insufficient fluid intake. . . . The
defendant possesses an IQ of 61. This score places her 10. Know the significance of the concept of causal-
within the bottom one half of 1 percent of the population. ity and the definition of cause in fact, proximate
(State v. Patterson, 27 A.3D 374 [Conn. App. 2011]) cause, intervening cause, coincidental inter-
vening cause, and responsive intervening
In this chapter, learn the difference between the crim-
cause.
inal intents of purposely, knowingly, negligently, and
recklessly.
INTRODUCTION
A crime comprises an actus reus, or a criminal act or evidence establishing beyond a reasonable doubt that
omission (failure to act), and a mens rea, or a crim- the accused possessed the required mental state and
inal intent. Conviction of a criminal charge requires performed a voluntary act that caused the social harm
49
condemned in the statute. Shortly, I will explain how an omission or failure to act may constitute
a crime. At the moment, our focus is on criminal acts.
There must be a concurrence between the actus reus and mens rea. For instance, common law
burglary is the breaking and entering of the dwelling house of another at night with the intent
to commit a felony. A backpacker may force his or her way into a cabin to escape the sweltering
summer heat and, once having entered, find it impossible to resist the temptation to steal hiking
equipment. The requisite intent to steal developed following the breaking and entering, and our
backpacker is not guilty of common law burglary. The requirement of concurrence is illustrated
by the California Penal Code, which provides that “in every crime . . . there must exist a union or
joint operation of act and intent.”1
Actus reus generally involves three elements or components: (1) a voluntary act or failure to
perform an act (2) that causes (3) a social harm condemned under a criminal statute. Homicide,
for instance, may involve the voluntary shooting or stabbing (act) of another human being that
results in (causation) death (social harm). The Indiana Criminal Code, in part, provides that a
“person commits an offense only if he voluntarily engages in conduct in violation of the statute
defining the offense.”2
Keep in mind that certain offenses are strict liability offenses. An individual is held liable for a
strict liability offense who is proven beyond a reasonable doubt to have committed a criminal act.
There is no requirement of a criminal intent.
There are various other requirements to prove a criminal act in addition to an act and to an
intent. First, keep in mind that an act may be innocent or criminal depending on the context or
attendant circumstances. Entering an automobile, turning the key, and driving down the
highway may be innocent or criminal depending on whether the driver is the owner or a thief.
Second, crimes require differing attendant circumstances. An assault on a police officer requires
an attack on a law enforcement official; an assault with a dangerous weapon involves the employ-
ment of an instrument capable of inflicting serious injury, such as a knife or firearm. A third point
is that some offenses require that an act cause a specific harm. Homicide, for instance, involves
an act that directly causes the death of the victim, while false pretenses require that an individ-
ual obtain title to property through the false representation of a fact or facts. In the case of these
so-called result crimes, the defendant’s act must be the “actual cause” of the resulting harm. An
individual who dangerously assaults a victim who subsequently dies may not be guilty of homicide
in the event that the victim would have lived and her death was caused by the gross negligence of
an ambulance driver.
In this chapter, we discuss the concepts that constitute the foundation of a criminal offense:
Acts
Intent
Concurrence
Causality
CRIMINAL ACTS AND THOUGHTS

What is an act? It is sufficient to note that the popular view is that an act involves a bodily move-
ment, whether voluntary or involuntary.
The significant point is that the criminal law punishes voluntary acts and does not penalize
thoughts. Why?
•• Punishing people for their thoughts would involve an unacceptable degree of governmental
intrusion into individual privacy.
•• It would be difficult to distinguish between criminal thoughts that reflect momentary anger,
frustration, or fantasy, and thoughts involving the serious consideration of criminal conduct.
•• Individuals should be punished only for conduct that creates a social harm or imminent
threat of social harm and should not be penalized for thoughts that are not translated into
action.
•• The social harm created by an act can be measured and a proportionate punishment imposed.
The harm resulting from thoughts is much more difficult to determine.
CHAPTER 3 Elements of Crimes 51
How should we balance the interest in freedom of thought and imagination against the social
interest in the early detection and prevention of social harm in the case of an individual who
records dreams of child molestation in his or her private diary?
A VOLUNTARY CRIMINAL ACT

A more problematic issue is the requirement that a crime consist of a voluntary act. The Indiana
Criminal Law Study Commission, which assisted in writing the Indiana statute on criminal con-
duct, explains that voluntary simply means a conscious choice by an individual to commit or not
to commit an act.3 Professor Joshua Dressler compares an involuntary movement to the branch of
a tree that is blown by the wind into a passerby. A voluntary act may involve pulling the trigger of
a gun, hitting a victim, moving your mouth and inciting a riot, or offering another person money
to commit a murder.4
The requirement of a voluntary act is based on the belief that it would be fundamentally unfair
to punish individuals who do not consciously choose to engage in criminal activity and who
therefore cannot be considered morally blameworthy. There also is the practical consideration
that there is no need to deter, incapacitate, or rehabilitate individuals who involuntarily engage in
criminal conduct.5
Once again, a voluntary act “requires an ability to choose which course to take—i.e., an ability
to choose whether to commit the act that gives rise to criminal liability.”6 Consider several cases in
Table 3.1 in which courts were required to determine whether to hold defendants criminally liable
who claimed that they should be acquitted because they had committed an involuntary act.
An individual driving an automobile is not held liable for an unanticipated stroke or heart
attack that involuntarily causes an accident and the death of another. Courts reason that the death
resulted from an unanticipated, involuntary act. However, these types of situations can be compli-
cated. Consider the frequently cited case of People v. Decina, in which the defendant was convicted
of negligent homicide. The defendant’s automobile jumped a curb and killed four children. The
appellate court affirmed Decina’s conviction despite the fact that the accident resulted from an
Table 3.1 Involuntary Acts

Sample of Court Decisions on Involuntary Acts
Involuntary Act Court Decision
Sleepwalking The Kentucky Supreme Court ruled that a defendant, who claimed that he was a
“sleepwalker,” should not be convicted in the event that he was “unconscious when he
killed the deceased.” See Fain v. Commonwealth, 78 Ky. 183 (1879).
Reflex Action A California court of appeals concluded that the evidence supported the “inference” that
a defendant who had been wounded in the abdomen had shot and killed a police officer
as a reflex action and was in a “state of unconsciousness.” See People v. Newton, 87
Cal. Rptr. 394 (Cal. App. 1970).
Drugs in Jail Eaton was arrested for driving with his headlights turned off and failed a field sobriety
test. He was arrested for DUI and taken to the county jail where he was searched, the
officers seized methamphetamine, and he was charged with possession of a controlled
substance. The prosecutor sought a sentence enhancement because Eaton introduced
the narcotics into the county jail. The Washington Supreme Court held that Eaton was
“forcibly taken” to the county jail and that a sentence enhancement could not be lawfully
imposed. See State v. Eaton, 229 P.3d 704 (Wash. 2010). An Arizona appellate court
based on similar facts held that the defendant’s possession of a controlled substance
was “voluntary in that, after being advised of the consequences of bringing drugs into
the jail, [he] consciously chose to ignore the officers’ warnings, choosing instead to
enter the jail in possession of cocaine. Under these circumstances, the [defendant] was
the author of his own fate.” See State v. Alvarado, 200 P.3d 1037 (Ariz. App. 2008).
epileptic seizure. The judges reasoned that the statute “does not necessarily contemplate that the
driver be conscious at the time of the accident” and that it is sufficient that the defendant “knew
of his medical disability and knew that it would interfere with the operation of a motor vehicle.”
In other words, Decina committed a voluntary act when he voluntarily got behind the wheel of
his auto, consciously turned the key, and drove the auto, although he was aware that he might
experience a seizure.7
The notion that an act may be involuntary is not an easy concept to comprehend, and you
may be justifiably skeptical about whether this is humanly possible. In a famous Canadian case
in 1988, twenty-four-year-old Kenneth Parks was acquitted of murder after he was found to have
driven fourteen miles to his mother-in-law’s home and beat her to death with a tire iron. Parks
successfully argued that he was sleepwalking, and friends testified that he had a history of sleep-
walking. Expert medical witnesses testified that there were roughly thirty cases in which a “sleep-
walker” committed murder.8
Model Penal Code (MPC) Section 2.01 provides a good summary of the requirement that a
criminal act must include “a voluntary act or the omission to perform an act.” The MPC avoids the
difficulties involved in trying to unravel the differences between voluntary and involuntary acts
by listing categories of involuntary acts.
MPC Section 2.01 defines the Requirement of Voluntary Act as follows (reprinted in partial):
Model Penal Code

Section 2.01. Requirement of Voluntary Act
(1) A person is not guilty of an offense unless his liability is based on conduct that includes a
voluntary act or the omission to perform an act of which he is physically capable.
(2) The following are not voluntary acts within the meaning of this Section:
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep;
(c) conduct during hypnosis or resulting from hypnotic suggestion;
(d) a bodily movement that otherwise is not a product of the effort or determination of
the actor, either conscious or habitual.
The Legal Equation

Actus reus = A voluntary act or failure to perform an act.
Voluntary act = A bodily movement that is the product of a conscious choice.
You Decide 3.1 Thomas F. Martino and his repeated these orders several more times, threatened
wife, Carmen Keenon, got into an to tase Martino, and began moving up the stairs,
argument. Martino shoved his wife Martino stood up, moved to the front of the landing,
down the front stairs of the home. and “‘squared off’ against the police in a way that indi-
He fell on Keenon and began cated that he wanted to fight.” Martino yelled at the
choking her. The police arrived and observed Martino police, “Come on.” One of the officers tased Martino,
on top of Keenon on the stair landing outside of the who dropped to the ground, having lost control of his
couple’s apartment. The officers ordered Martino to muscles because of being tased. He fell backward on
get off of Keenon who replied in a combative tone, top of Keenon, breaking her arm. The trial court found
“[Y]ou ain’t going to ----ing do anything.” After the police Mar tino guilty of ag gravated domestic batter y,
ggravated battery, unlawful restraint, and two counts

a that his breaking of Keenon’s arm was an involuntary
of resisting or obstructing a police officer. The defen- act and that he may not be held criminally liable for a
dant was sentenced to concurrent terms totaling 180 battery. Do you agree? See People v. Martino, 970
days in jail and four years of probation. Martino claims N.E.2d 1236 (Ill. App. 2012).

Gilberto Valle, age thirty-one, the so-called “Cannibal and acquaintances undoubtedly reflected a mind dis-
Cop,” was convicted of conspiracy to kidnap. A New eased.” However, Valle never met and did not know
York police officer, Valle was convicted in March 2013 the men with whom he communicated and took no
based on his alleged secret plotting on “dark” Internet “non-Internet-based steps” to implement the plan. The
sites to abduct several women, including his own wife. dates for the kidnappings passed without comment or
He used online identities like Girlmeat Hunter and discussion or implementation.
searched for methods of kidnapping, subduing, tortur- Valle did receive a one-year sentence for using a
ing, and killing women and used a law enforcement law enforcement database to learn about the women
database to collect information about his victims. Valle about whom he fantasized and was required to con-
also conducted Internet searches on topics such as tinue mental health treatment. At the time of his
“how to chloroform a girl.” sentencing, Valle had already been jailed for twenty
Valle’s wife discovered his postings about women months while awaiting trial.
on fetish chat rooms. In one e-mail, Valle described In December 2015, the Second Circuit Court of
hanging a victim by her feet and “cutting her throat” Appeals affirmed Judge Gardephe’s reversal of Valle’s
and “[l]etting her bleed . . . [and] butcher[ing] her while conviction. Judge Barrington D. Parker Jr. wrote that
she hangs.” Other messages stated that “part of me “fantasizing about committing a crime, even a crime of
wants to put her in the oven while she is still alive, but violence against a real person whom you know, is not
at a very low heat,” and expressed a desire to “make a crime.” Judge Parker cautioned that Valle’s rhetoric
some bacon strips off her belly.” was not harmless because it is both a “symptom of
Federal District Court Judge Paul G. Gardephe and a contributor to a culture of . . . massive social
overturned Valle’s conspiracy conviction, finding that he harm that demeans women.” Valle in an interview fol-
only engaged in “fantasy role-play.” “No one was ever lowing the reversal of his conviction recognized that
kidnapped, no attempted kidnapping [occurred] . . . the anonymity of the computer screen contributes to
and no real-world, non-Internet-based steps were ever a culture in which “you try . . . [to] outdo the other
taken to kidnap anyone.” Judge Gardephe acknowl- person [as to] who can be the sicker one.” Why did the
edged that Valle’s “depraved, misogynistic sexual appellate courts consider Valle to have engaged in fan-
fantasies about his wife, former college classmates tasy? Do you agree with the decision to acquit Valle?
STATUS
An individual may not be held criminally liable for a status. A status is defined as a “characteristic”
or a “condition” or “state of being.” The rule is that you may not be criminally punished for
“who you are”; you may be held liable only for “what you do.” In other words, we cannot be held
criminally responsible based on our race, religion, gender, or sexual preference or the fact that
we have a disease or are a former offender. In 1969, in Wheeler v. Goodman, a federal district court
judge held that the defendants had been improperly arrested and punished because they were
unemployed “hippies.”9
A man is free to be a hippie, a Methodist, a Jew, a Black Panther, a Kiwanian, or even a

Communist, so long as his conduct does not imperil others, or infringe upon their rights.
In short, it is no crime to be a hippie. . . . Status—even that of a gambler or prostitute—may
not be made criminal. The acts of gambling, prostitution, and operating bawdy houses are
criminally punishable, of course, but the state cannot create the special status of vagrant
for persons who commit those illegal acts and then punish the status instead of the act.
What about the status of being a drug addict? In Robinson v. California, the U.S. Supreme Court
was asked to determine whether Robinson could be held criminally liable for his status of being
“addicted to narcotics.” The Court found the California law unconstitutional because it did not
“require possession or use of narcotics, or disorderly behavior resulting from narcotics, but rather
imposed liability for the mere status of being addicted.” The justices concluded that just as it would
be cruel to make it a crime to be mentally ill or a leper or to be afflicted with venereal disease, it was
cruel to convict an individual for the “disease of addiction” without requiring proof of narcotics
possession or antisocial behavior.10
Six years later, the Court reached a different outcome in Powell v. Texas. Leroy Powell was an
alcoholic with roughly one hundred arrests for public intoxication. He was arrested for “being
found in a state of intoxication in a public place.” Powell claimed that he could not control
his urge to drink and that because of his status as an alcoholic, he should not be held guilty for
being drunk in public. The Supreme Court rejected Powell’s argument that he was being pun-
ished for being a chronic alcoholic and held that he was being punished for public behavior that
posed “substantial health and safety hazards, both to himself and for members of the general
public.”11
Powell, according to the majority of the justices, was not suffering from a disease that made
him unable to control his desire to drink. Each morning, Powell made a voluntary decision to start
drinking and knew that by the end of the day, he would find himself drunk in public and subject
to arrest.
In other words, although Robinson was improperly punished for being a “narcotics addict,”
Powell was properly punished for being “drunk and disorderly in public.” Consider how the Court
would have ruled if the scientific evidence indicated that alcoholics like Powell have a gene that
makes them unable to resist drinking and getting drunk in public. Would Powell, on these facts,
succeed in claiming that he was being punished for a status rather than for an act?
You might be thinking about the fact that sex offenders are prohibited from living nearby a
school or church; suspected terrorists are prohibited from flying on commercial airliners; and,
in many states, undocumented young people are denied state college tuition. Are these status
offenses? The answer is that these disabilities are civil regulations designed to protect the public
rather than “criminal punishments” imposed on individuals. A homeless individual who is con-
victed of sleeping in the park is being punished for his or her act rather than his or her status. On
the other hand, some argue that a homeless individual is compelled by his or her homelessness
and the lack of housing to sleep in the park.
You Decide 3.2 An FBI search of Bruce Black’s istribution of child pornography was a pathological
d
home and home computer resulted symptom of the defendant’s pedophilia and/or ephebo-
in the seizure of photographs and philia.” Psychiatric reports concluded that despite
computer diskettes containing Black’s illness, Black was able to appreciate the wrong-
unlawful child pornography. Black fulness of his acts and was able to control his impulses
pled guilty to the receipt, possession, and distribution of and limit his involvement in child pornography to those
child pornography that had been transmitted in inter- periods in which his roommate was absent. Black
state commerce. He was sentenced to eighteen months appealed and claimed that he was unable to control his
in prison and to three years of supervised release. The sexual urges and that he was being punished for his
government stipulated in the plea agreement that Black status as a pedophile and/or ephebophile. Do you agree
was a “pedophile and/or ephebophile [sexually attracted with Black? Will his appeal be successful? See United
to young men]” and that “the receipt, collection and States v. Black, 116 F.3d 198 (7th Cir. 1997).

OMISSIONS
Can you be held criminally liable for a failure to act? For casually stepping over the body of a dying
person who is blocking the entrance to your favorite coffee shop? The MPC requires that criminal Read People v.
conduct be based on a “voluntary act or omission to perform an act of which [an individual] is Kellogg on the
physically capable.” An omission is a failure to act or a “negative act.” study site: study
.sagepub.com/
lippmaness2e.
The American and European Bystander Rules
The basic rule in the United States is that an individual is not legally required to assist a person
who is in peril. This principle was clearly established in 1907 in People v. Beardsley. The Michigan
Supreme Court ruled that the married Beardsley was not liable for failing to take steps to ensure the
safety of Blanche Burns, a woman with whom he was spending the weekend. The court explained
that the fact that Burns was in Beardsley’s house at the time she overdosed on drugs and alcohol
did not create a legal duty to assist her. The Michigan judges cited in support of this verdict the
statement of U.S. Supreme Court Justice Stephen Johnson Field that it is “undoubtedly the moral
duty of every person to extend to others assistance when in danger . . . and, if such efforts should
be omitted . . . he would by his conduct draw upon himself the just censure and reproach of good
men; but this is the only punishment to which he would be subjected by society.”12 Chief Justice
Alonzo Philetus Carpenter of the New Hampshire Supreme Court earlier had recognized that an
individual did not possess a duty to rescue a child standing in the path of an oncoming train.
Justice Carpenter noted that “if he does not, he may . . . justly be styled a ruthless savage and a
moral monster; but he is not liable in damages for the child’s injury, or indictable under the statute
for its death.”13
This so-called American bystander rule contrasts with the European bystander
rule, common in Europe, that obligates individuals to intervene. Five American states, Hawaii,
Minnesota, Rhode Island, Vermont, and Wisconsin, have laws that require individuals to call for
help or to intervene in certain circumstances to protect another person so long as they themselves
are not placed in danger. Good Samaritan laws, in contrast, protect individuals who intervene
to assist a person in peril from lawsuits for damages and should not be confused with criminal
liability for a failure to intervene.14
Most Americans would likely agree that an Olympic swimmer is morally obligated to rescue a
young child drowning in a swimming pool. Why, then, is this not recognized as a legal duty in the
United States? There are several reasons for the American bystander rule:
•• Individuals intervening may be placed in jeopardy.

•• Bystanders may misperceive a situation, unnecessarily interfere, and create needless
complications.
•• Individuals may lack the physical capacity and expertise to subdue an assailant or to rescue
a hostage and place themselves in danger. This is the role of criminal justice professionals.
•• The circumstances under which individuals should intervene and the acts required to satisfy
the obligation to assist another would be difficult to clearly define.
•• Criminal prosecutions for a failure to intervene would burden the criminal justice system.
•• Individuals in a capitalist society are responsible for their own welfare and should not expect
assistance from others.
•• Most people will assist others out of a sense of moral responsibility, and there is no need for
the law to require intervention.
Critics of the American bystander rule contend that there is little difference between pushing a
child onto the railroad tracks and failing to intervene to ensure the child’s safety and that criminal
liability should extend to both acts and omissions. This also would deter crime, because offenders
may be reluctant to commit crimes in situations in which they anticipate that citizens will inter-
vene. We can see how the readiness of passengers to confront terrorists on airplanes has prevented
several attacks, most notably in the case of the “shoe bomber” Richard Reid. The European rule
also assists in promoting a sense of community and regard for others.15
The conflict between law and morality was starkly presented in 1964 when thirty-eight
residents of New York City were awakened by the desperate screams of Kitty Genovese,
a twenty-eight-year-old woman returning home from work. Kitty parked her car in a lot roughly
one hundred feet from her apartment and was confronted by Winston Moseley, a married father of
two young children, who later would testify that he received emotional gratification from stalking
women. The thirty-eight residents of the building turned on their lights and opened their windows
and watched as Moseley returned on three separate occasions over a period of thirty-five minutes
to stab Kitty seventeen times. The third time Moseley returned, he found that Kitty had crawled
to safety inside a nearby apartment house, and he stabbed her in the throat to prevent her from
screaming, attempted to rape her, and took $49 from her wallet. One person found the courage to
persuade a neighbor to call the police, who arrived in two minutes to find Kitty’s dead body. This
event profoundly impacted the United States. Commentators asked whether we had become a
society of passive bystanders who were concerned only with our own welfare.16
American criminal law does not impose a general duty on the individuals witnessing the mur-
der of Kitty Genovese to intervene. There is a duty, however, to assist another under certain limited
conditions. The primary requirement is that a duty must be imposed by either the common law
or a statute.
• Status. The common law recognized that individuals possess an obligation to assist their
child, spouse, or employee. In State v. Mally, the defendant was convicted of “hastening” the death
of his wife who had fallen and broken both of her arms, precipitating severe shock and the degen-
eration of her kidneys. Michael Mally left his wife Kay alone in bed for two days, only bothering
to provide her with a single glass of water. A Montana district court held that “the failure to obtain
medical aid for one who is owed a duty is a sufficient degree of negligence to constitute involun-
tary manslaughter provided death results from the failure to act.”17
• Statute. A duty to intervene may be created by a statute that imposes a duty of care. This
may be a criminal statute requiring that a doctor report child abuse or a statute that sets forth
the obligations of parents. In Craig v. State, the defendants followed the dictates of their religion
and treated their child’s fatal illness with prayer rather than medicine. They were subsequently
convicted of failing to obtain medical care for their now-deceased six-year-old daughter. The court
ruled that the parents had breached their duty under a statute that provided that a father and
mother are jointly and individually responsible for the “support, care, nurture, welfare and edu-
cation of their minor children.” The statute failed to mention medical care, but the court had “no
hesitancy in holding that it is embraced within the scope of the broad language used.”18
• Contract. An obligation may be created by an agreement. An obvious example is a babysitter
who agrees to care for children or a lifeguard employed to safeguard swimmers. In Commonwealth
v. Pestinikas, Walter and Helen Pestinikas verbally agreed to provide shelter, food, and medicine to
ninety-two-year-old Joseph Kly, who had been hospitalized with a severe weakness of the esopha-
gus. Kly agreed to pay the Pestinikases $300 a month in return for food, shelter, care, and medicine.
Kly was found dead of dehydration and starvation roughly nineteen months later. A Pennsylvania
superior court ruled that although failure to provide food and medicine could not have been the
basis for prosecuting a stranger who learned of Kly’s condition, a “duty to act imposed by contract
is legally enforceable and, therefore, creates a legal duty.”19
• Assumption of a Duty. An individual who voluntarily intervenes to assist another is charged
with a duty of care. In People v. Oliver, Oliver, knowing that Cornejo was extremely drunk, drove
him from a bar to Oliver’s home, where she assisted him to inject drugs. Cornejo collapsed
on the floor, and Oliver instructed her daughter to drag Cornejo’s body outside and hide him
behind a shed. The next morning, Cornejo was discovered dead. A California superior court ruled
that by taking Cornejo into her home, Oliver “took charge of a person unable to prevent harm
to himself,” and she “owed Cornejo a duty” that she breached by failing to summon medical
assistance.20
In People v. Burton, the defendants, Sharon Burton and Leroy Locke, were convicted of first-
degree murder. On January 22, 1996, Sharon Burton passively watched Leroy Locke chase her
daughter Dominique with a belt, after learning that she had had a “toilet training accident” on the
carpet, while shouting “the little bitch pissed again.” Locke then filled the bathtub with water and
forced Dominique’s head under the water three times for fifteen seconds at a time. Dominique’s
body reportedly went limp in the water, and Locke and Burton left the three-year-old unattended
in the bathtub for thirty minutes while they played cards. Burton, after discovering Dominique’s
lifeless body, called her mother rather than authorities and later falsely reported to investigators
that the child had fallen off the toilet. An Illinois appellate court found that Burton possessed
knowledge that Dominique was being subjected to an ongoing pattern of abuse and that there was Read Jones v.
United States
a substantial likelihood that Dominique would suffer death or great bodily harm.21
and State v.
Caldwell on the
study site: study
.sagepub.com/
The Legal Equation lippmaness2e.
Omission of a duty = A failure to act
+ tatus, statute, contract, assume a duty, peril, control,

s
landowner
+ knowledge that the victim is in peril
+ criminal intent
+ possession of the capacity to perform the act
+ would not be placed in danger.
You Decide 3.3 In May 1997, nineteen-year-old that he wanted to experience death. His lawyer argued
Jeremy Strohmeyer together with that Strohmeyer was in a “dream-like state” as a result
his friend David Cash played video of a combination of alcohol, drugs, and stress. In order
games at a Las Vegas casino while to avoid the death penalty, Strohmeyer pled guilty to
Strohmeyer’s father gambled. first-degree murder, first-degree kidnapping, and sexual
Seven-year-old Sherrice Iverson threw a wet paper towel assault of a minor, all of which carry a life sentence in
at Strohmeyer, and a paper towel fight ensued. He fol- Nevada.
lowed her into the restroom to continue the game. The Iverson’s mother called for Cash to be criminally
forty-six-pound Iverson threw a yellow floor sign at charged, but Nevada law required him neither to inter-
Strohmeyer and then began screaming. Strohmeyer cov- vene nor to report the crime to the police. The admin-
ered her mouth and forced her into a bathroom stall. istration at the University of California at Berkeley
David Cash wandered into the restroom to look for responded to a student demonstration calling for Cash’s
Strohmeyer. He peered over the stall and viewed dismissal by explaining that there were no grounds to
Strohmeyer gripping and threatening to kill Sherrice. expel him from the institution because he had not com-
Cash allegedly made an unsuccessful effort to get mitted a crime. Cash, who was studying nuclear engi-
Strohmeyer’s attention and lef t the bathroom. neering, refused to express remorse, explaining that
Strohmeyer then molested Sherrice and strangled her he was concerned about himself and was not going to
to suffocate the screams. As he was about to leave, become upset over other people’s problems, particu-
Strohmeyer decided to relieve Sherrice’s suffering and larly a little girl whom he did not know.
twisted her head and broke her neck. He placed the Should David Cash be held criminally liable for
limp body in a sitting position on the toilet with a failure to rescue Sherrice Iverson? See Joshua
Sherrice’s feet in the bowl. Dressler, Cases and Materials on Criminal Law, 3rd ed.
Strohmeyer confessed to Cash and, after being (St. Paul, MN: West, 2003), pp. 133–134.
apprehended by the police three days later, explained

POSSESSION
State criminal codes punish a number of crimes involving the possession of contraband (mate-
rial that is unlawful to possess or to manufacture). Statutes typically punish the possession of nar-
cotics, firearms, ammunition and explosives, burglar tools, stolen property, and child pornography
and obscenity.
Possession is a preparatory offense. The thinking is that punishing possession deters and pre-
vents the next step—a burglary, sale of narcotics, or the use of a weapon in a robbery. The posses-
sion of contraband such as drugs and guns may also provoke conflict and violence.22 How does the
possession of contraband meet the requirement that a crime involve a voluntary act or omission?
This difficulty is overcome by requiring proof that the accused knowingly obtained or received the
contraband (voluntary act) or failed to immediately dispose of the property.23
There are a number of central concepts to keep in mind in understanding possession.
•• Actual possession refers to drugs and other contraband within an individual’s physical
possession or immediate reach.
•• Constructive possession refers to contraband that is outside of an individual’s actual
physical control but over which he or she exercises control through access to the location
where the contraband is stored or through ability to control an individual who has physical
control over the contraband. A drug dealer has constructive possession over narcotics stored
in his or her home or under the physical control of a member of his or her gang.
•• Joint possession refers to a situation in which a number of individuals exercise control
over contraband. Several members of a gang may all live in the home where drugs are stored.
There must be specific proof connecting each individual to the drugs. The fact that a gang
member lives in the house is not sufficient.
•• Fleeting possession permits an innocent individual to take momentary possession and
dispose of an illegal object. An example is when a teacher removes and disposes of narcotics
seized in the classroom.
Possession typically requires a criminal intent. MPC Section 2.01 provides that the “possessor”
must have “knowingly procured or received the thing possessed” or “was aware of his control
thereof for a sufficient period to have been able to terminate his possession.” In other words, the
keys to possession are knowledge and either physical or constructive possession of the property.24
Perhaps the most difficult cases involve determining which of the residents of a house or
occupants of an automobile are in constructive possession of contraband. In State v. Cashen, Ross
Cashen was convicted of possession of marijuana, and he appealed. Cashen was one of six occu-
pants of an automobile. Four individuals, including Cashen and his girlfriend, were in the back-
seat. Cashen was sitting next to a window with his girlfriend on his lap.25
An officer found a lighter and cigarette rolling papers on Cashen and cigarette rolling papers
and a small baggie of marijuana seeds in his girlfriend’s pants pocket. The officers found a baggie
of marijuana wedged in the rear seat on the side where Cashen and his girlfriend had been seated.
Both Cashen and his girlfriend stated that she owned the marijuana. The Iowa Supreme Court held
that Cashen’s physical closeness to the marijuana was not sufficient to prove possession beyond a
reasonable doubt, and his conviction was overturned. His fingerprints were not on the bag of mar-
ijuana, the marijuana was not visible to the occupants of the car, and Cashen neither owned the
car nor acted in a suspicious fashion when the police approached to search the automobile. Would
you hold Cashen, his girlfriend, any of the passengers, or the driver liable for possession based on
these facts? Would it make a difference to your answer if there was a large amount of marijuana in
the backseat?
The doctrine of willful blindness holds an individual criminally liable who lacks actual
knowledge of the existence of contraband although he or she is aware of a high probability of the
existence of the contraband. Commentators note that individuals may not bury their head in the
sand like an ostrich and thereby escape legal liability. Charles Jewell and a friend were approached
in a Tijuana, Mexico, bar by a stranger who called himself “Ray.” Ray asked them if they wanted
to buy marijuana, and when they refused, he offered to pay them $100 for driving a car across the
border. Jewell accepted the offer, although his friend refused. Customs agents stopped Jewell at the
border and opened the trunk and seized 110 pounds of marijuana concealed in a secret compartment
between the trunk and rear seat. Jewell testified at trial that he had seen the special compartment
when he opened the trunk and that he did not investigate further. The jury convicted Jewell of drug
possession and concluded that if Jewell was not actually aware of the marijuana, his “ignorance was
solely and entirely a result of a conscious purpose to avoid learning the truth.”26
The Legal Equation

Possession = Knowledge of presence of object
+ exercise of dominion and control
+ knowledge of character of object.
MENS REA CRIMINAL INTENT

In the last section, we noted that a criminal offense ordinarily requires the concurrence between a
criminal act (actus reus) and a criminal intent (mens rea) that cause a social harm prohibited under
the law. The prosecutor is required to establish beyond a reasonable doubt that the defendant pos-
sessed the required criminal intent.
It is said that one of the great contributions of the common law is to limit criminal punish-
ment to “morally blameworthy” individuals who consciously choose to cause or to create a risk of
harm or injury. Individuals are punished based on the harm caused by their decision to commit
a criminal act rather than because they are “bad” or “evil people.” Former Supreme Court justice
Robert Jackson observed that a system of punishment based on a criminal intent is intended to
direct punishment at individuals who consciously choose between “good and evil.” Justice Jackson
noted that this emphasis on individual choice and free will assumes that criminal law and punish-
ment can deter people from choosing to commit crimes, and that those who do engage in crime
can be encouraged through the application of punishment to develop a greater sense of moral
responsibility in the future.27
We all pay attention to intent in evaluating individuals’ behavior. You read in the newspaper
that a rock star shot and killed one of her friends. There is no more serious crime than murder;
yet, before condemning the killer, you want to know what was on her mind. The rock star may
have intentionally aimed and fired the weapon. On the other hand, she may have aimed and fired
the gun, believing that it was unloaded. We have the same act but a different reaction, based on
whether the rock star intended to kill her friend or acted in a reckless fashion. As former Supreme
Court justice Oliver Wendell Holmes Jr. famously observed, “even a dog distinguishes between
being stumbled over and being kicked.”28
It is a bedrock principle of criminal law that a crime requires an act or omission and a criminal
intent. The importance of a criminal intent is captured by a frequently quoted phrase: “There can
be no crime, large or small, without an evil mind” (actus non facit reum nisi mens sit rea).29
The common law originally punished criminal acts and paid no attention to the mental ele-
ment of an individual’s act. The killing of another was murder, whether committed intentionally or
recklessly. Canon, or religious law, with its stress on sinfulness and moral guilt, helped to introduce
the idea that punishment should depend on an individual’s “moral blameworthiness.” This came
to be fully accepted in the American colonies. In 1978, the Supreme Court observed that mens rea is
now the “rule of, rather than the exception to, the principles of American jurisprudence.”30 There
are two primary reasons that explain why the criminal law requires “moral blameworthiness.”
1. Responsibility. It is just and fair to hold a person accountable who intentionally chooses to
commit a crime.
2. Deterrence. Individuals who act with a criminal intent pose a threat to society and should be
punished in order to discourage them from violating the law in the future and in order to
deter others from choosing to violate the law.
In many instances, it is difficult to establish a criminal intent beyond a reasonable doubt

because we do not know what is going on inside an individual’s mind. The easiest case is when
an individual makes a statement of intent, such as “I will kill you,” or makes a confession to the
police. In most instances, we do not know what an individual is thinking and must rely on cir-
cumstantial evidence or the surrounding facts. In the Illinois case of People v. Conley, a district
court found that the defendant possessed the intent to cause “permanent disability” based on the
defendant’s forcefully hitting the victim in the face with a full bottle of wine.31
Intent should not be confused with motive. Motive is the underlying reason that explains or
inspires an individual to act. An individual who robs a bank may be motivated by greed or by a
desire to feed his or her family. The individual’s motive is not considered in determining whether
the individual possessed a criminal intent and committed a criminal act. Motive may be consid-
ered by a judge at sentencing.
GENERAL AND SPECIFIC INTENT

The common law provided for two confusing categories of mens rea, a general intent and a specific
intent. These continue to appear in various state statutes and decisions, although, as we shall see,
a number of states have adopted the MPC framework.
A general intent is simply an intent to commit the actus reus or criminal act. There is no
requirement that the prosecutors demonstrate that an offender possessed an intent to violate the
law, an awareness that the act is a crime, or knowledge that the act will result in a particular type
of harm. Proof of the defendant’s general intent is typically inferred from the nature of the act
and the surrounding circumstances. The crime of battery or a nonconsensual harmful touching
provides a good illustration of a general intent crime. The prosecutor is required to establish only
that the accused intended to commit an act that was likely to substantially harm another. In the
case of a battery, this may be inferred from factors such as the force of the blow, the portion of the
body that was targeted, and the defendant’s statements and motive. Statutes that require a general
intent typically use words such as willfully or intentionally.
A specific intent is a mental determination to accomplish a specific result. The prosecutor
is required to demonstrate that the offender possessed the intent to commit the actus reus and
then is required to present additional evidence that the defendant possessed the specific intent
to accomplish a particular result. For example, a battery with an intent to kill requires proof of a
battery along with additional evidence of a specific intent to murder the victim. Larceny requires
the intent to and act of taking and carrying away property with the added intent permanently to
deprive an individual of the property. The classic example is common law burglary. This requires
the actus reus of breaking and entering and evidence of a specific intent to commit a felony inside
the dwelling. Some commentators refer to these offenses as crimes of cause and result because
the offender possesses the intent to “cause a particular result.”
The difference between a specific intent and a general intent is nicely summarized by the
Michigan Supreme Court: “The distinction between specific intent and general intent crimes is
that the former involve a particular criminal intent beyond the act done, while the latter involve
merely the intent to do the physical act.”32
Courts at times struggle with whether statutes require a general or specific intent. The conse-
quences can be seen from the Texas case of Alvarado v. State. The defendant was convicted of “inten-
tionally and knowingly” causing serious bodily injury to her child by placing him in a tub of hot
water. The trial judge instructed the jury that they were merely required to find that the accused
deliberately placed the child in the water to find her criminally liable. The appellate court overturned
the conviction and ruled that the statute required the jury to find that the defendant possessed the
intent to place the child in hot water, as well as the specific intent to inflict serious bodily harm.33
Constructive intent is a third type of common law intent that was developed in situations
in which a defendant lacked a specific intent, although a result was substantially likely to occur.
This was applied in the early twentieth century to protect the public against reckless drivers; it
provides that individuals who act with conscious disregard for the consequences of their actions
are considered to intend the natural consequences of their actions. A reckless driver who caused an
accident that resulted in death, under the doctrine of constructive intent, is guilty of a willful and
intentional battery or homicide.
In 1980, in United States v. Bailey, the U.S. Supreme Court complained that the common law
distinction between general and specific intent had caused a “good deal of confusion.” A 1972
survey of federal statutes found seventy-six different terms used to describe the required men-
tal element of criminal offenses. This laundry list included terms such as intentionally, knowingly,
fraudulently, designedly, recklessly, wantonly, unlawfully, feloniously, willfully, purposely, negligently,
wickedly, and wrongfully.34
Justice Robert Jackson noted “the variety . . . and confusion” of the judicial definition of the
“elusive mental element” of crime. He observed that “[f]ew areas of criminal law pose more diffi-
culty than the proper definition of mens rea required for a particular crime.”
The MPC introduced a new approach to determining criminal intent, which is discussed in the
next section. Professor Dressler writes that “[n]o aspect of the Model Penal Code has had greater
influence on the direction of American criminal law than Section 2.02 [on criminal intent].”35
INTENT UNDER THE MODEL PENAL CODE

The MPC attempted to clearly define the mental intent required for crimes by providing four easily
understood levels of responsibility. All crimes requiring a mental element (strict liability offenses
do not) must include one of the four mental states provided in Section 2.02 of the MPC. These four
types of intent, in descending order of culpability (responsibility), are as follows:
Purposely
Knowingly
Recklessly
Negligently
These criminal intents are illustrated in Table 3.2.
Purposely
The MPC established purposely as the most serious category of criminal intent. Purposely merely
means that a defendant acted “on purpose” or “deliberately.” In legal terms, the defendant must
possess a specific intent or “conscious object” to cause a result. A person acts purposely when his or
her conscious object is to achieve a result. A murderer pulls the trigger with the purpose of killing
the victim, a burglar breaks and enters with the purpose of committing a felony inside the dwell-
ing, and a thief possesses the purpose of permanently depriving an individual of the possession of
his or her property.
Table 3.2 Criminal Intent Under the Model Penal Code

Mental State Illustration
Purposely “You borrowed my car and wrecked it on purpose.”
Knowingly “You may not have purposely wrecked my car, but you knew that you were almost certain to
get in an accident because you had never driven such a powerful and fast automobile.”
Recklessly “You may not have purposely wrecked my car, but you were driving over the speed limit on
a rain-soaked and slick road in heavy traffic and certainly realized that you were extremely
likely to get into an accident.”
Negligently “You may not have purposely wrecked my car and apparently did not understand the
power of the auto’s engine, but I cannot overlook your lack of awareness of the risk of an
accident. After all, any reasonable person would have been aware that such an expensive
sports car would pack a punch and would be difficult for a new driver to control.”
In State v. Sanborn, Sanborn attacked his wife, from whom he was separated, when she threat-
ened to call his mother if he did not leave her apartment. Sanborn held his wife’s head in an arm
lock, hit her in the face four times, and beat her multiple times with a stainless steel toaster oven,
a stainless steel coffee maker and carafe, and a microwave oven. Sanborn, while beating his wife,
threatened to make her head explode and to kill her. The prosecution was required to establish that
Sanborn acted with the “purpose” to cause serious bodily injury. The judge concluded that when
Sanborn “slugs a five-foot-two-inch, 135-pound woman in the eye and side of the head and back
of the head several times, and then attempts to smash down a microwave on her head, and then
hits her with a toaster oven in the head, that is clearly . . . an attempt, a purposeful attempt . . . to
cause serious bodily injury.”36
Knowingly
When he or she acts knowingly, an individual is aware that circumstances exist or a result is
practically certain to follow from his or her conduct. An example of knowledge that circumstances
exist is knowingly to “possess a firearm” or knowingly to possess narcotics. An illustration of a
result that is practically certain to occur is a terrorist who bombs a public building knowing the
people inside are likely to be maimed or injured, or to die.
Another example of a result that is practically certain to occur is State v. Fuelling. Michelle
Fuelling left her twenty-three-month-old son, Raven, at home with her son’s father, Carlos
Mendoza. Mendoza beat Raven and inflicted severe brain injury and bruises resulting in Raven’s
death. An autopsy indicated that Raven’s death resulted from severe head trauma. Mendoza was
convicted of child abuse and murder.37
The evidence indicated that Fuelling knew that Mendoza had abused Raven in the past and
that her family had warned her about leaving Raven with Mendoza. Fuelling was convicted of
having “knowingly acted in a manner that created a substantial risk to the life, body and health of
Raven . . . by leaving [him] in the care of Carlos Mendoza, knowing that said Mendoza abused the
child.” The prosecution established that Fuelling knew that her conduct was “practically certain to
endanger the child.” Keep in mind that she likely did not have the purposeful intent of Mendoza
injuring Raven, although she was held liable for being aware that he likely would endanger Raven.
Recklessly
A person acts recklessly when he or she is personally aware of a severe and serious risk and acts
in such a fashion that demonstrates a clear lack of judgment and concern for the consequences.
This is an objective test, and the defendant’s behavior must be a clear departure from what would
be expected of law-abiding individuals.
In Durkovitz v. State, Gary Durkovitz was convicted of the offense of recklessly causing serious
bodily injury to a child. Durkovitz, an experienced animal trainer, took his 350-pound grown lion
to a flea market in Houston on eight occasions and charged patrons to be photographed with the
lion. The court found that the defendant was aware that there were a number of children at the
flea market and that the lion posed a danger to the children because of the animal’s predatory
instincts. The animal had injured two children in the past. Durkovitz nonetheless took the lion
into the flea market and secured him only with a short, heavy chain. Durkovitz lost control of the
lion, which grabbed and attempted to crush a child’s head in its mouth.38
In State v. Williams, the Texas Court of Criminal Appeals noted other cases in which the court
found the defendant possessed a reckless intent.39
These include holding a child’s feet under extremely hot water, ramming a parked car
that had an 18-month-old child in it, twisting and pulling a baby’s leg, . . . and speeding
and running through stop signs with a child passenger. In other reckless injury cases, the
defendant failed to perform an act that directly resulted in the injury. In one case the
defendant was held to have recklessly caused bodily injury to her children by failing to
Read Hranicky
v. State on the
report to the authorities that her boyfriend had violently kidnapped them. In still other
study site: study cases the actors have left a disabled victim lying in bleach for at least an hour; failed to
.sagepub.com/ immediately seek medical help for a lethargic child; and left four-year-old twins unsuper-
lippmaness2e. vised and wandering around an apartment complex.
Negligently
An individual who acts negligently is unaware of and disregards a substantial and unjustifiable
risk that other individuals would be aware of and, like the reckless individual, grossly deviates from
the standard of care that a reasonable person would exhibit under a similar set of circumstances.
Latrece Jones, age eighteen, was riding in the front passenger seat of a rented Chevrolet
Cavalier in Chattanooga, Tennessee. Her two-year-old son, Carlon Bowens Jr., was asleep in her
lap. Carlon’s aunt, Letitia Abernathy, had rented the car and was driving the automobile; five chil-
dren and one adult sat in the backseat. A car failed to yield the right of way, causing an accident,
which led the passenger-side air bag to deploy.40
The air bag struck Carlon, breaking his neck and killing him. Jones was charged with crim-
inally negligent homicide. At the time of the accident, Tennessee’s child restraint law required
children under four years old to be in a “child passenger restraint system meeting federal motor
vehicle standards.” There also was evidence that a widespread media campaign in the past year
had been directed at educating parents of the need to use child restraints and on the danger posed
by air bags. This campaign, in part, was a recognition that it was only in 1999 that all automobiles
were required to have air bags and that parents generally lacked knowledge of the danger posed
by air bags. A newspaper study twelve days prior to the accident indicated that only 60 percent of
children observed in motor vehicles were restrained and that a number of children continued to
be seated in the front seat.
The Tennessee court concluded that the fact that there was a need for a large-scale public infor-
mation campaign aimed at educating parents about child car safety indicates “how many people
in the community simply were not using child safety restraints at the time of the accident. . . . If
40% of the children being transported in Ms. Jones’ community were being transported without
being properly restrained at the time of the accident, it would be difficult for a rational trier of fact
to conclude that it was a gross deviation from the standard of care at the time of the accident for
Ms. Jones to transport her child improperly.”
As you might have concluded, it often is challenging to determine whether a defendant pos-
sessed a reckless or a negligent intent. In People v. Stanfield, Stanfield was convicted of reckless
homicide. An appellate court held that the jury should have been provided the opportunity to
determine whether the defendant was negligent rather than reckless. Stanfield pointed a pistol at
his wife, whom he accused of being involved with another man during his absence. She told him
to stop “fooling and slapped his hand.” The gun discharged, fatally shooting his wife. Stanfield
claimed that he neither pulled the trigger nor intended that she should be fatally shot. The appel-
late court held that “[i]t is obvious that one who fails to perceive the possible danger inherent
in holding a gun to another when he has no intention of pulling a trigger is at least negligent.
If he perceives the possibility that an outside blow, i.e., a slap of the hand, might discharge the
weapon, then he is reckless. . . . It is the perception of possible risk to others which governs. On
the evidence, the jury could easily have found that defendant was no more than negligent in not
foreseeing the possibility of the slap.”41
Keep in mind that purpose generally corresponds to the common law standard of specific
intent and knowledge is thought to correspond to a general intent. Recklessness and negligence
are based on the concept of constructive intent. New Jersey is a state that has adopted the MPC
approach to criminal intent in order to achieve a clearer definition of the intent required for vari-
ous crimes.42 New Jersey statute 2C:2-2 provides that “a person is not guilty of an offense unless he
acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each
material element of the offense.”
In 1978, Arizona adopted the MPC mental states for all offenses in the criminal code.43 In read-
ing the text, keep in mind that you will encounter statutes that rely on both the common law and
the MPC approaches to criminal intent.
The next section discusses transferred intent, a doctrine that imposes liability on an individual
whose criminal act harms an individual who was not the intended victim of the crime.
TRANSFERRED INTENT
The doctrine of transferred intent first developed in England in 1575 in the case of Regina
v. Saunders & Archer. Saunders gave his wife a poison apple. She took a bite out of the apple and
handed it to her daughter, who died after finishing the apple. Saunders’s intent to kill his wife was
transferred to his daughter, and the judge convicted him of the intentional killing of his daughter,
although his intent was to poison his wife.44
The doctrine of transferred intent subsequently was adopted by courts in the United States.
Transferred intent primarily is applied to cases of homicide and battery, although it applies to
other types of crimes as well.
The California case of People v. Scott is one of the most important American cases on transferred
intent. Calvin Hughes and Elaine Scott went through a bitter breakup of their relationship. Scott’s
two sons Damien Scott and Derrick Brown retaliated by attempting to shoot and kill Hughes. The
bullet hit Hughes in the heel of his shoe and inadvertently killed Jack Gibson, an innocent teen-
ager who was sitting in a nearby car.45
The California Supreme Court relied on transferred intent to hold Scott and Brown liable for
the death of Gibson. The court explained that a “defendant who shoots with an intent to kill but
misses and hits a bystander instead should be punished for a crime of the same seriousness as the
one he tried to commit against his intended victim.” A shorthand way to understand transferred
intent is to remember that the defendant’s intent follows the bullet. Why does the law recognize
transferred intent in “wrong aim” cases?
Individual accountability. Defendants should be held responsible for the result (murder) that they
intended to achieve (murder) and did achieve (murder).
Justice. There is a social interest in punishing defendants whose acts create the social harm that
they intended to commit despite the fact that the wrong individual is victimized.
STRICT LIABILITY OFFENSES

We all have had the experience of telling another person that “I don’t care why you acted in that
way; you hurt me, and that was wrong.” This is similar to a strict liability offense.
A strict liability offense is a crime that does not require a mens rea, and an individual may
be convicted based solely on the commission of a criminal act.
Strict liability offenses have their origin in the industrial development of the United States in
the middle of the nineteenth century. The U.S. Congress and various state legislatures enacted a
number of public welfare offenses that were intended to protect society against impure food,
defective drugs, pollution, and unsafe working conditions, trucks, and railroads. These mala pro-
hibita offenses (an act is wrong because it is prohibited) are distinguished from those crimes that
are mala in se (inherently wrongful, such as rape, robbery, and murder).
The common law was based on the belief that criminal offenses required a criminal intent; this
ensured that offenders were morally blameworthy. The U.S. Supreme Court has pronounced that
the requirement of a criminal intent, although not required under the Constitution, is “universal
and persistent in mature systems of law.”46 Courts, however, have disregarded the strong policy
in favor of requiring a criminal intent in upholding the constitutionality of mala prohibita laws.
Congress and state legislatures typically indicate that these are strict liability laws by omitting
language such as “knowingly” or “purposely” from the text of the law. Courts look to several fac-
tors in addition to the textual language in determining whether a statute should be interpreted as
providing for strict liability:
•• The offense is not a common law crime.

•• A single violation poses a danger to a large number of people.
•• The risk of the conviction of an “innocent” individual is outweighed by the public interest
in preventing harm to society.
•• The penalty is relatively minor.
•• A conviction does not harm a defendant’s reputation.
•• The law does not significantly impede the rights of individuals or impose a heavy burden.
Examples are the prohibition of acts such as “selling alcohol to minors” or “driving without
a license.”
•• These are acts that most people avoid, and individuals who engage in such acts generally
possess a criminal intent.
The argument for strict liability offenses is that these laws deter unqualified people from
articipating in potentially dangerous activities, such as the production and selling of pharma-
p
ceutical drugs, and that those who engage in this type of activity will take extraordinary steps to
ensure that they proceed in a cautious and safe fashion. There is also concern that requiring pros-
ecutors to establish a criminal intent in these relatively minor cases will consume time and energy
and divert resources from other cases.
Courts traditionally have read an intent requirement into criminal statutes punishing com-
mon law mala in se offenses such as murder, robbery, kidnapping, and larceny. Judges reason that
these serious offenses should be punished only when accompanied by an intent to violate the
law. In Morissette v. United States, the defendant trespassed on an old government bombing range
and was convicted of carting three truckloads of old bomb casings that appeared to have been
abandoned.47 The Supreme Court held that the lower court judge had improperly concluded that
because the statute did not mention a criminal intent this was a strict liability offense. The Court
reasoned that Congress had modeled the statute punishing “whoever steals government property”
on the common law crime of larceny, and the fact that the statute did not mention intent did not
mean that Congress had intended to omit an intent requirement. Larceny historically had required
an “evil-meaning mind and an evil-doing hand.”
There is a trend toward expanding strict liability into the non–public welfare crimes that carry
relatively severe punishment. Many of these statutes are criticized for imposing prison terms with-
out providing for the fundamental requirement of a criminal intent.
The U.S. Supreme Court indicated in Staples v. United States that it may not be willing to
continue to accept the growing number of strict liability public welfare offenses.48 The National
Firearms Act was intended to restrict the possession of dangerous weapons and declared it a crime
punishable by up to ten years in prison to possess a “machine gun” without legal registration. The
defendant was convicted for possession of an AR-15 rifle, which is a semiautomatic weapon that
can be modified to fire more than one shot with a single pull of the trigger. The Supreme Court
interpreted the statute to require a mens rea, explaining that the imposition of a lengthy prison
sentence has traditionally required that a defendant possess a criminal intent. The Court noted
that gun ownership is widespread in the United States and that a strict liability requirement would
result in the imprisonment of individuals who lacked the sophistication to determine whether
they purchased or possessed a lawful or unlawful weapon.
A Michigan appellate court held that John Wesley Janes should not be held criminally liable
for possession of a dangerous animal based on his pit bull’s attack on an infant absent Janes’s
knowledge that the dog was dangerous. The court reasoned that dog ownership is widespread in
the United States and the incidence of aggressive behavior by dogs is not so widespread to alert
individuals that they should assume that absent a history of violent behavior a dog is a “dangerous
animal.” The court observed that “we find it unthinkable that the Legislature intended to subject
law-abiding, well-intentioned citizens to a possible four-year prison term if, despite genuinely
and reasonably believing their animal to be safe around other people and animals, the animal
nevertheless harms someone. . . . [W]e are reluctant to impute to our Legislature the intent of dis-
pensing with the criminal-intent requirement when it would mean easing the path to convicting
persons whose conduct would not even alert them to the probability of strict regulation” under
the statute.49
MPC Section 1.04(5) accepts the need for strict liability crimes, while limiting these crimes
to what the code terms “violations.” Violations are not subject to imprisonment and are punish-
able only by a fine, forfeiture, or other civil penalty; and they may not result in the type of legal
disability (e.g., loss of the right to vote) that flows from a criminal conviction. You can find some
examples of strict liability offenses in Table 3.3.
CONCURRENCE OF ACT AND INTENT

We now have discussed both actus reus and mens rea. The next step is to understand that there must
be a concurrence between a criminal act and a criminal intent. Chronological concurrence means
that a criminal intent must exist at the same time as a criminal act. An example of chronological
concurrence is the requirement that a burglary involves breaking and entering into the dwelling
house of another at night with the intent to commit a felony therein. A defendant who claimed
Table 3.3 Strict Liability Offenses
Offense Case Example
Open Bottle Steven Mark Loge was cited for a violation of a Minnesota statute that declares it a
misdemeanor for the owner of a motor vehicle, or the driver when the owner is not
present, “to keep or allow to be kept in a motor vehicle when such vehicle is upon the
public highway any bottle or receptacle containing intoxicating liquors or 3.2 percent
malt liquors which has been opened.” Loge borrowed his father’s pickup truck and was
stopped by two police officers while on his way home from work. One of the officers
observed and seized an open beer bottle underneath the passenger’s side of the seat
and also found one full unopened can of beer and one empty beer can in the truck. Loge
was issued a citation for a violation of the open bottle statute. See State v. Loge, 608
N.W.2d 152 (Minn. 2000).
Students’ A juvenile court ordered C.R.M. to attend an Anoka County, Minnesota, juvenile day
Possession of school. Students’ coats are hung outside the classroom and inspected in the morning
Weapons in for contraband. A folding knife with a four-inch blade was discovered in C.R.M.’s
School coat. C.R.M. immediately reacted, “Oh man, I forgot to take it out, I was whittling
this weekend.” C.R.M. was convicted under a statute that makes possession of a
dangerous weapon on school property a strict liability offense. The Minnesota statute
provides that “[w]hoever possesses, stores, or keeps a dangerous weapon or uses
or brandishes a replica firearm or a BB gun on school property is guilty of a felony
and may be sentenced to imprisonment for not more than two years or to payment of
a fine of not more than $5,000, or both.” See In re C.R.M., 611 N.W.2d 802 (Minn.
2000).
Teacher’s A Virginia law makes it a felony for an individual to possess a firearm “upon any
Possession of public . . . elementary school, including building and grounds.” Deena Esteban, a fourth-
Weapons in grade elementary school teacher, left a zippered yellow canvas bag in a classroom;
School the bag was found to contain a loaded .38 caliber revolver. Esteban explained that
she placed the gun in the bag and took it to the store on the previous Saturday, and
then she forgot that the pistol was in the bag and inadvertently carried it into the
school. The Virginia Supreme Court affirmed Esteban’s conviction on appeal. The
court stressed that the fact that Esteban “innocently” brought a loaded revolver into
the school “does not diminish the danger.” A footnote in the decision indicated that
Esteban possessed a concealed handgun permit that specifically did not authorize
possession of a handgun on school property. See Esteban v. Commonwealth, 587
S.E.2d 523 (Va. 2003).
that he entered his mother’s home with the intent to escape the cold and contended that he only
later developed the intent to kill his mother would not be guilty of burglary, if he was believed
by the jury.50 The principle of concurrence is reflected in Section 20 of the California Penal Code,
which provides that in “every crime . . . there must exist a union or joint operation of act and
intent or criminal negligence.”51
The Legal Equation

Concurrence = Mens rea (in unison with)
+ actus reus.
You Decide 3.4 Scott Jackson administered to prevent identification of the body. Bryan, in fact, was
what he believed was a fatal dose still alive when she was brought to Kentucky, and she
of cocaine to Pearl Br yan in died as a result of the severing of her head. A state pos-
Cincinnati, Ohio. Bryan was preg- sesses jurisdiction over offenses committed within its
nant, apparently as a result of her territorial boundaries. Can Jackson be prosecuted for
intercourse with Jackson. Jackson and a companion the intentional killing of Bryan in Ohio? In Kentucky? See
then transported Bryan to Kentucky and cut off her head Jackson v. Commonwealth, 38 S.W. 422 (Ky. App. 1896).

We have seen throughout this chapter that a crime After you die, I’ll go to your Mom’s house and
requires the concurrence of a criminal act and a crim- f--k her until tomorrow and make ya’ little
inal intent. In 2014, Vonte Skinner was convicted of brother watch with his face full of sorrow.
attempted murder and aggravated assault for allegedly
attempting to carry out a contract killing of a narcotics So get them answers right. Where’s the case
dealer who had withheld the proceeds from narcotics and stash of white. I got ya’ wife tied to the
sales from a drug gang. A search of the defendant’s bed and at her throat a knife.
car led to the seizure of three notebooks filled with
rap lyrics authored by Skinner. A number of the lyrics An appellate court reversed Skinner’s conviction
are described as “violent” and were written under the and expressed doubt whether the jurors would have
moniker “Real Threat.” Skinner has the word Threat found the defendant guilty if they had not listened to
tattooed on his arm. an “extended reading” of these lyrics.
The jury was unable to reach a verdict at Skinner’s The New Jersey Supreme Court found that there
first trial. He was convicted at a second trial in which was no connection between the various crimes with
a detective testifying for the state of New Jersey read which Skinner was charged and the bad acts recounted
excerpts from the defendant’s lyrics, testimony that in the lyrics. “We reject the proposition that probative
ran for thirteen pages in the trial transcript. The pros- evidence about a charged offense can be found in an
ecution successfully argued that although none of the individual’s artistic endeavors absent a strong nexus
lyrics mentioned the victim by name and that all of the between specific details of the artistic composition
lyrics had been composed prior to the shooting, the and the circumstances of the offense for which the
lyrics provided evidence of the defendant’s criminal evidence is being adduced.” The Supreme Court also
motive and intent and capacity for violence. Several of noted the risk that the introduction of the lyrics had
the lyrics are reprinted below. prejudiced the jury against the defendant.
In other cases, courts have found a strong con-
On the block, I can box you down or straight nection between rap lyrics and a defendant’s mental
razor ox you down, run in your crib with a four determination to kill. In Bryant v. State, 802 N.E.2d
pound and pop your crown. Checkmate, put 486 (Ind. Ct. App. 2004), the defendant was convicted
your face in the ground. I’ll drop your queen of the murder of his stepmother. His lyrics were admit-
and pawn, f--k–f--k wastin’ around. They don’t ted to establish his motive to kill because the lyrics
call me Threat for nothin’. closely resembled the crime with which the defendant
was charged. “’Cuz the 5-0 won’t even know who you
You pricks goin’ to listen to Threat tonight. are when they pull yo ugly ass out of the trunk of my
’Cause feel when I pump this P-89 into your car.” In the South Carolina trial of Gonzales Wardlaw
head like lice. Slugs will pass ya’ D, like (Snoop), the defendant’s lyrics were introduced as
Montana and rice, that’s five hammers, 16 an admission of guilt to a murder, and in a Pittsburgh
shots to damage your life, leave you f-----s all case, two men were sentenced to prison after posting
bloody. a rap video that threatened to harm two police officers
who had arrested them.
(Continued)
(Continued)
Law enforcement officials now are trained to use autobiographical and that gangsta rap is character-
rap lyrics to assist them in investigating crimes. The ized by exaggeration and violent and sexual language.
New York Times identified dozens of cases between Artists remain in “character” even when not perform-
2012 and 2014 in which prosecutors attempted ing to persuade their audience that they are “authen-
to introduce rap music at a defendant’s trial. The tic” and “credible.” Commentators also note that law
American Civil Liberties Union of New Jersey found enforcement officials are able to distinguish between
that courts admitted lyrics roughly 80 percent of the the reality and fiction when it comes to other forms
time. Studies find that juries are more likely to believe of music but do not seem willing to make this distinc-
that defendants who have written violent rap lyrics are tion when it comes to young African American artists.
capable of committing a murder than defendants who Under what circumstances should rap music be viewed
have not written violent lyrics. as evidence of criminal intent and motive rather than
Commentators familiar with the culture of rap artistic expression?
music point out that the lyrics are not necessarily
CAUSALITY
You now know that a crime entails a mens rea that concurs with an actus reus. The defendant must
be shown to have caused the victim’s death or injury, or to have damaged the property.
Causation is central to criminal law and must be proven beyond a reasonable doubt. The
requirement of causality is based on two considerations:
1. Individual Responsibility. The criminal law is based on individual responsibility. Causality

connects a person’s acts to the resulting social harm and permits the imposition of the
appropriate punishment.
2. Fairness. Causality limits liability to individuals whose conduct produces a prohibited social
harm. A law that declares that all individuals in close proximity to a crime are liable regard-
less of their involvement would be unfair and would penalize people for being in the wrong
place at the wrong time. If such a law were enacted, individuals might hesitate to gather in
crowds or bars or to attend concerts and sporting events.
Establishing that a defendant’s criminal act caused harm to the victim can be more compli-
cated than you might imagine. Should an individual who commits a rape be held responsible for
the victim’s subsequent suicide? What if the victim attempted suicide a week before the rape and
then killed herself following the rape? Would your answer be the same if the stress induced by the
rape appeared to have contributed to the victim’s contracting cancer and dying a year later? What
if doctors determine that a murder victim who was hospitalized would have died an hour later of
natural causes?
We can begin to provide an answer to these hypothetical situations by reviewing the two types
of causes that a prosecutor must establish beyond a reasonable doubt at trial in order to convict a
defendant: cause in fact and legal or proximate cause.
You will find that most causality cases involve defendants charged with murder who claim that
they should not be held responsible for the victim’s death.
Cause in Fact
The cause in fact or factual cause simply requires you to ask whether “but for” the defendant’s
act, the victim would have died. An individual aims a gun at the victim, pulls the trigger, and kills
the victim. “But for” the shooter’s act, the victim would be alive. In most cases, the defendant’s act
is the only factual cause of the victim’s injury or death and is clearly the direct cause of the harm.
This is a simple cause-and-effect question. The legal or proximate cause of the victim’s injury or
death may not be so easily determined.
A defendant’s act must be the cause in fact or factual cause of a harm in order for the defendant
to be criminally convicted. This connects the defendant to the result. The cause in fact or factual
cause is typically a straightforward question. Note that the defendant’s act must also be the legal
or proximate cause of the resulting harm.
Legal or Proximate Cause

Just when things seem simple, we encounter the challenge of determining the legal or proximate
cause of the victim’s death. Proximate cause analysis requires the jury to determine whether it is
fair or just to hold a defendant legally responsible for an injury or death. This is not a scientific
question. We must consider questions of fairness and justice. There are few rules to assist us in this
analysis.
In most cases, a defendant is clearly both the cause in fact and legal cause of the victim’s
injury or death. However, consider the following scenarios: You pull the trigger, and the victim
dies. You point out that it was not your fault, since the victim died from the wound you inflicted
in combination with a minor nonlethal gun wound that she suffered earlier in the day. Should
you be held liable? In another scenario, an ambulance rescues the victim, the ambulance’s brakes
fail, and the vehicle crashes into a wall, killing the driver and victim. Are you or the driver respon-
sible for the victim’s death? You later learn that the victim died after the staff of the hospital emer-
gency room waited five hours to treat the victim and that she would have lived had she received
timely assistance. Who is responsible for the death? Would your answer be different in the event
that the doctors protested that they could not operate on the victim because of a power outage
caused by a hurricane? What if the victim was wounded from the gunshot and, although barely
conscious, stumbled into the street and was hit by an automobile or by lightning? In each case,
“but for” your act, the victim would not have been placed in the situation that led to his or her
death. On the other hand, you might argue that in each of these examples you were not legally
liable, because the death resulted from an intervening cause or outside factor rather than from
the shooting. As you can see from the previous examples, an intervening cause may arise from
any of the following:
•• The act of the victim wandering into the street

•• An act of nature, such as a hurricane
•• The doctors who did not immediately operate
•• A wound inflicted by an assailant in combination with a previous injury
Another area that complicates the determination of proximate cause is a victim’s preexisting
medical condition. This arises when you shoot an individual and the shock from the wound results
in the failure of the victim’s already seriously weakened heart.
Intervening Cause
Professor Dressler helps us address these causation problems by providing two useful categories of
intervening acts: coincidental intervening acts and responsive intervening acts.
Coincidental Intervening Acts

A defendant is not considered legally responsible for a victim’s injury or death that results from a
coincidental intervening act. (Some texts refer to this as an independent intervening cause.) A
coincidental intervening act is a cause that is unrelated to a criminal act of the accused. Coincidental
intervening acts arise when a defendant’s act places a victim in a particular place where the victim is
harmed by an unforeseeable event.
The Ninth Circuit Court of Appeals offered an example of an unforeseeable event as hypo-
thetical in the case of United States v. Main. The defendant in this example drives in a reckless
fashion and crashes his car, pinning the passenger in the automobile. The defendant leaves the
scene of the accident to seek assistance, and the semiconscious passenger is eaten by a bear. The
Ninth Circuit Court of Appeals observed that reckless driving does not create a foreseeable risk
of being eaten by a bear and that this intervening cause is so out of the ordinary that it
would be unfair to hold the driver responsible for the victim’s death.52 Another example of an
unforeseeable coincidental intervening event involves a victim who is wounded, taken to the
hospital for medical treatment, and then killed in the hospital by a knife-wielding mass murderer.
Professor Dressler notes that in this case, the unfortunate victim has found himself or herself in the
“wrong place at the wrong time.”53
Responsive Intervening Acts

The response of a victim to a defendant’s criminal act is termed a responsive intervening
act (some texts refer to this as a dependent intervening act). In most instances, the defendant is
considered responsible because his or her behavior caused the victim to respond. A defendant is
relieved of responsibility only in those instances in which the victim’s reaction to the crime is both
abnormal and unforeseeable. Consider the case of a victim who jumps into the water to evade an
assailant and drowns. The assailant will be charged with the victim’s death despite the fact that the
victim could not swim and did not realize that the water was dangerously deep. The issue is the
foreseeability of the victim’s response rather than the reasonableness of the victim’s response. Again,
courts generally are not sympathetic to defendants who set a chain of events in motion, and they
generally will hold such defendants criminally liable.
In People v. Armitage, David Armitage was convicted of “drunk boating causing [the] death” of
Peter Maskovich. Armitage was operating his small aluminum speedboat at a high rate of speed
while zigzagging across the river, when it flipped over. There were no flotation devices on board,
and the intoxicated Armitage and Maskovich clung to the capsized vessel. Maskovich disregarded
Armitage’s warning, decided to try to swim to shore, and drowned. A California appellate court
ruled that Maskovich’s decision did not break the chain of causation. The “fact that the panic
stricken victim recklessly abandoned the boat and tried to swim ashore was not a wholly abnormal
reaction to the peril of drowning,” and Armitage could not exonerate himself by claiming that the
“victim should have reacted differently or more prudently.”54
Defendants have also been held liable for the response of individuals other than the victim.
For instance, in the California case of People v. Schmies, defendant Schmies fled on his motorcycle
from a traffic stop at speeds of up to ninety miles an hour and disregarded all traffic regulations.
During the chase, one of the pursuing patrol cars struck another vehicle, killing the driver and
injuring the officer. Schmies was convicted of grossly negligent vehicular manslaughter and of
reckless driving. A California court affirmed the defendant’s conviction based on the fact that the
officer’s response and the resulting injury were reasonably foreseeable. The officer’s reaction, in
other words, was not so extraordinary that it was unforeseeable, unpredictable, and statistically
extremely improbable.55
Medical negligence has also consistently been viewed as foreseeable and does not break the
chain of causation. In People v. Saavedra-Rodriguez, the defendant claimed that the negligence of
the doctors at the hospital rather than the knife wound he inflicted was the proximate cause of
the death and that he should not be held liable for homicide. The Colorado Supreme Court ruled
that medical negligence is “too frequent to be considered abnormal” and that the defendant’s
stabbing of the victim started a chain of events, the natural and probable result of which was the
defendant’s death. The court added that only the most gross and irresponsible medical negligence
is so removed from normal expectations as to be considered unforeseeable.56
In sum, a defendant who commits a crime is responsible for the natural and probable conse-
quences of his or her actions. A defendant is responsible for foreseeable responsive intervening
acts.
The MPC eliminates legal or proximate causation and requires only “but-for causation.” The
code merely asks whether the result was consistent with the defendant’s intent or knowledge or
was within the scope of risk created by the defendant’s reckless or negligent act. In other words,
under the MPC, you merely look at the defendant’s intent and act and ask whether the result could
have been anticipated. In cases of a resulting harm or injury that is “remote” or “accidental” (e.g.,
a lightning bolt or a doctor who is a serial killer), the MPC requires that we look to see whether it
would be unjust to hold the defendant responsible.
You can find more cases on causality in Table 3.4.
Table 3.4 Causality

Act and Intent Case Examples
Apparent In an 1856 North Carolina case, Preslar kicked and choked his wife and beat her over the
Safety head with a thirty-inch-thick piece of wood. He also threatened to kill her with his axe. The
Doctrine victim gathered her children and walked over two miles to her father’s home. Reluctant
to reveal her bruises and injuries to her family, she spread a quilt on the ground and
covered herself with cotton fabric and slept outside. The combination of the exhausting
walk, her injuries, and the biting cold led to a weakened condition that resulted in her
death. The victim’s husband was acquitted by the North Carolina Supreme Court, which
ruled that the chain of causation was broken by the victim’s failure to seek safety. The
court distinguished this case from the situation of a victim who in fleeing is forced to
wade through a swamp or jump into a river. Is it relevant that the victim likely feared that
her family would force her to return to her marital home and that she would have to face
additional physical abuse from her husband? See State v. Preslar, 48 N.C. 421 (1856).
Drag Racing In Velazquez v. State, the defendant Velazquez and the deceased Alvarez agreed to drag
race their automobiles over a quarter-mile course on a public highway. Upon completing
the race, Alvarez suddenly turned his automobile around and proceeded east toward
the starting line. Velazquez also reversed direction. Alvarez was in the lead and attained
an estimated speed of 123 miles per hour. He was not wearing a seat belt and had a
blood alcohol level of between .11 and .12. Velazquez had not been drinking and was
traveling at roughly 90 miles per hour. As both approached the end of the road, they
applied their brakes, but Alvarez was unable to stop. He crashed through the guardrail
and was propelled over a canal and landed on the far bank. Alvarez was thrown from his
car, pinned under the vehicle when it landed, and died. The defendant crashed through
the guardrail, landed in the canal, and managed to escape. A Florida district court of
appeal determined that the defendant’s reckless operation of his vehicle in the drag
race was technically the cause in fact of Alvarez’s death under the “but for” test. There
was no doubt that “but for” the defendant’s participation, the deceased would not have
recklessly raced his vehicle and would not have been killed. The court, however, ruled
that the defendant’s participation was not the proximate cause of the deceased’s death
because the “deceased, in effect, killed himself by his own volitional reckless driving,”
and that it “would be unjust to hold the defendant criminally responsible for this death.”
The race was completed when Alvarez turned his car around and engaged in a “near-
suicide mission.” See Velazquez v. State, 561 So.2d 347 (Fla. Dist. Ct. App. 1990).
Medical In United States v. Hamilton, the defendant knocked the victim down and jumped on
Negligence him and kicked his face. The victim was rushed to the hospital, where nasal tubes were
inserted to enable him to breathe, and his arms were restrained. During the night, the
nurses changed his bedclothes and negligently failed to reattach the restraints on the
victim’s arms. Early in the morning the victim went into convulsions, pulled out the nasal
tubes, and suffocated to death. The federal court held that regardless of whether the
victim accidentally or intentionally pulled out the tubes, the victim’s death was the ordinary
and foreseeable consequence of the attack and affirmed the defendant’s conviction for
manslaughter. See United States v. Hamilton, 182 F. Supp. 548 (D.D.C. 1960).
Removal The defendant was convicted of vehicular manslaughter when the Toyota Camry he was
From Life driving struck a Chrysler LeBaron driven by William Patrick from behind. The LeBaron
Support “sailed over the curb and slid along the guardrail, crashing into a utility pole before it
ultimately came to rest 152 feet from the site of impact.” The defendant’s blood alcohol
level was estimated at .18 or .19. As a result of the accident, Patrick suffered broken
bones, paralysis, infections, organ failure, an inability to breathe on his own, brain damage,
and severe psychological problems. Five months following the accident, Patrick’s family in
accordance with his wishes removed him from a ventilator, and he died two hours later. The
New Jersey Supreme Court held that removal of life-sustaining treatment is a victim’s right,
and it is foreseeable that a victim may exercise his or her right not to be placed on, or to
be removed from, life support systems. See State v. Pelham, 824 A.2d 1082 (N.J. 2003).
The Legal Equation

Causality = Cause in fact
+ legal or proximate cause.

Cause in fact = “ But for” the defendant’s criminal act, the victim
would not be injured or dead.
Legal or proximate cause = hether it is just or fair to hold the defendant
W
criminally responsible.
Intervening acts = oincidental intervening acts limit liability where
C
unforeseeable; responsive intervening acts limit
liability where unforeseeable and abnormal.
You Decide 3.5 Defendant Israel Cervantes Cervantes pulled out his own gun. Linares responded by
and fellow gang members of the “pushing or touching” Cervantes in an effort to separate
Highland Street gang went to a him from Cisneros. The defendant Cervantes stated
birthday party for a member of the that “nobody touches me” and shot Linares through the
Alley Boys gang. The two gangs arm and chest. A large-scale fight ensued between the
were not enemies. Cervantes approached a woman gangs, and gang “challenges were exchanged.”
named Grace who refused his invitation to go to another A short time later, a group of Highland Street gang
party. Cervantes called her a “ho,” and the two members saw Hector Cabrera, a member of the Alley
exchanged insults. Juan Cisneros, a member of the Alley Boys, entering his car. Five gang members fired shots
Boys, told Cervantes that he was disrespecting his and participated in killing Cabrera.
“homegirl.” Richard Linares, a member of the Alley Would you hold Cervantes liable for the murder of
Boys, tried to calm the situation. Cisneros, however, Cabrera? See People v. Cervantes, 29 P.3d 225 (Cal.
drew a gun and threatened to “cap” Cervantes. 2001).
You can find the answer at study.sagepub.com/lippmaness2e.
CASE ANALYSIS
In State v. Gargus, the defendant, a certified nurse assistant (CNA), voluntarily assumed care of her
eighty-one-year-old mother who was suffering from diabetes and had lost the capacity to walk. A
Missouri appellate court was asked to decide whether the defendant possessed a duty to care for her
mother and knowingly violated her duty of care by failing to provide her mother with adequate
medical care and as a result was guilty of elder abuse.
Did Gargus Possess a Duty of Care Toward Her Mother, and Did Gargus’s
Breach of Her Duty of Care Cause the Death of Her Mother?
State v. Gargus, No. ED 99233 (Mo. 2013)
Gargus was convicted of the felony of elder abuse in the “A person commits the crime of elder abuse in the
first degree stemming from the death of her mother, first degree if he attempts to kill, knowingly causes or
Lorraine Gargus (the victim), while in Gargus’s care. attempts to cause serious physical injury . . . to any
person sixty years of age or older. . . .” Criminal lia- ill.” The victim had several large bedsores in various
bility is premised on conduct involving voluntary stages of development. The main bedsore was on the
acts. Voluntary acts include “[a]n omission to perform victim’s upper buttocks, and Dr. Crenshaw described
an act of which the actor is physically capable.” The it as a “huge, gaping, infected wound.” The infec-
defendant was sentenced to ten years in prison. tion had eaten the skin and subcutaneous fat around
The victim was an eighty-one-year-old woman the bedsore, and an investigator for the Missouri
suffering from diabetes. After falling in 2005, the vic- Department of Health and Senior Services (DHSS) tes-
tim determined she was unable to walk anymore and tified she could see the victim’s tailbone through the
became bedbound. Gargus started staying with the basketball-sized wound. The infection tested positive
victim and Gargus’s father in 2008 to help out, and by for staphylococcus (staph) and had turned septic—
December 2009 she had moved in to care for them. In that is, had spread to her bloodstream. The surgical
January 2010, Gargus quit her job at the Clark County floor nurse testified the bedsore smelled like rotting
Nursing Home, where she had worked since 1973, to flesh. As well, the emergency room nurse testified the
care for her parents full-time. victim had open sores over most of her body and large
Gargus testified she cooked for the victim, gave bedsores on her heels.
her daily sponge baths, and changed her clothes daily. Dr. Crenshaw further testified that the victim’s
The victim had been using a bedpan, but in January second main injury was the trauma to her left foot.
2010, she became incontinent. Gargus tried to give the Her skin and tissue were removed down to tendon
victim her medicine, but the victim resisted medica- and bone, consistent with having been eaten by a
tion, frequently hiding it or throwing it away. rodent, as witnessed by the emergency personnel. . . .
Gargus first noticed a bedsore the size of a ten- The following day, an orthopedic surgeon amputated
nis ball on the victim’s upper buttocks on January the victim’s leg and foot below the knee. He noted the
20, 2010. To care for the bedsore, Gargus continued leg was no longer getting any blood supply and was
using egg crate and fleece cushioning for the victim’s cold and blue. Moreover, he could feel gas under the
bed, stopped using Depends diapers on the victim to skin, consistent with gangrene. Last, Dr. Crenshaw
allow the sore to get air, and attempted to turn the testified the victim was malnourished and “profoundly
victim every hour—however, the victim was reluctant dehydrated.”
to change positions, and Gargus described it as a “con- The victim died on March 11, 2010. Her autopsy
stant battle.” The victim’s husband died on January revealed that the cause of death was multiple-organ
31, 2010. At the funeral, family members indicated failure due to septicemia, stemming from the multiple
they wanted to visit the victim, but Gargus discour- bedsores and gangrene of the left foot. The medical
aged visits. After her husband’s death, the victim examiner testified that the victim’s death was caused
stopped eating and did not want to drink. by the bedsore on her back, and that early care of the
Cindy Hickman (Cindy), the victim’s grand- bedsore could have stopped the disease from progress-
daughter, visited the victim on February 2, 2010, ing. He noted bedsores occur when patients lie on
and described the mobile home as dirty and smelly. their backs for long periods of time without moving.
The victim’s bed was located in the living room with He further testified the failure to provide a clean envi-
animal cages stacked around it from floor to ceiling. ronment, movement treatment for the bedsore, and
Cindy testified there were “hundreds” of mice every- medical care also led to the victim’s death.
where. The victim was completely covered in a blanket The record shows that Gargus had worked in a
and her eyes were matted shut and she did not recog- nursing home since 1973 and had been a CNA since
nize Cindy, calling her by her sister Sylvia Winger’s 1989. Her supervisor testified that all CNAs received
name. continuing training in infection control, pressure
On February 22, 2010, Gargus called an ambu- areas, and skin care. More importantly, Gargus’s own
lance after noticing a wound on the victim’s foot. She testimony revealed that she knew of the importance of
had bathed the victim that morning and put lotion on preventing and treating bedsores. . . . Despite Gargus’s
her feet, but did not see an injury. The victim generally admitted knowledge about the treatment of bedsores
kept her feet uncovered, so any injury would be obvi- and her testimony that she bathed the victim every
ous. Gargus’s son alerted her to the injury later that day and saw the victim’s body daily, Gargus let the
day. . . . The emergency personnel testified that the bedsore progress to Stage IV before calling for medical
victim appeared confused and complained of a burn- assistance. When the victim was admitted to the hospi-
ing sensation in her rectum. As they moved the victim tal, the bedsore was a “huge, gaping, infected wound”
from her bed to the stretcher, a large mouse or small through which the victim’s tailbone was visible.
rat ran out of the bedclothes. Moreover, when the victim was admitted to the
Dr. Neville Crenshaw . . . who was the victim’s hospital, she was malnourished and dehydrated.
attending doctor, testified that when the victim was Gargus testified that the victim stopped eating when
admitted to the hospital she was “acutely and critically her husband died on January 31, yet Gargus did not call
(Continued)
(Continued)
for medical assistance until February 22. . . . Further, in flea-ridden, foul-smelling muddy gray water. Because
despite Gargus’s testimony that she bathed the victim she was a CNA trained in the importance of hygiene,
daily and rubbed lotion on the victim’s feet as late as the jury could infer Gargus knew the condition of the
February 22, she somehow failed to notice that the home was certain to cause serious physical injury or
victim’s left leg was not getting any blood supply, was harm to the victim, a diabetic with multiple bedsores
cold and blue, and had gas under the skin consistent in various stages of development. Indeed, the victim
with gangrene. The jury was entitled to infer that as later died of a massive infection.
a trained CNA, Gargus knew that failing to seek treat- The evidence shows that Gargus had a duty to act
ment for a diabetic whose leg was in such a necrotic to prevent injury to the victim and that Gargus knew
condition was practically certain to cause serious physi- about but failed to provide the proper treatment of
cal injury or harm to the victim. Last, as a CNA, Gargus bedsores, failed to ensure the victim ate and drank,
was trained in the importance of hygiene, but isolated and failed—despite her twenty-plus years as a CNA—to
the victim in a mobile home infected with mice that notice the condition of the victim’s leg. . . . Therefore,
had feces on the floor, molding food in the kitchen, we find there was sufficient evidence from which a rea-
and a nonworking bathroom. Moreover, Gargus stated sonable trier of fact could conclude Gargus knowingly
to investigators that she washed the victim’s clothing caused serious physical injury to the victim.
CHAPTER SUMMARY
A crime requires the concurrence of a criminal intent Code attempted to simplify the intent standard by
(mens rea) and criminal act (actus reus). An act, for pur- establishing a hierarchy of criminal intent standards.
poses of the criminal law, must be a voluntary act. An The most serious intent standard is purposely, fol-
individual also may be held liable for a failure to act in lowed by knowingly, recklessly, and the least serious
those instances in which law imposes a duty to act. A form of intent, negligently. A fifth type of intent is
duty arises when there is a status relationship, statute, strict liability.
or contract, or when an individual assumes a duty. As noted, there must be a concurrence between
The possession of contraband constitutes an act. a criminal act and a criminal intent. The criminal act
A significant contribution of the common law must be the cause or proximate cause of a prohibited
is limiting criminal punishment to individuals who harm. This analysis is complicated by intervening
possess a “guilty mind.” The common law established causes. Individuals are not held liable for coincidental
three types of criminal intent: specific intent, general intervening causes, although they are held liable for
intent, and constructive criminal intent. These intent responsive intervening causes.
standards proved confusing, and the Model Penal
1. What are the elements of a crime? 7. Distinguish between specific intent and general
intent and constructive intent.
2. Why are criminal thoughts not penalized by the
criminal law? 8. Define the criminal intents of purposely, know-
ingly, recklessly, and negligently.
3. Give some examples of behavior that is consid-
ered to be an involuntary act. Why are involun- 9. What are the characteristics of a strict liability
tary acts not criminally punished? offense?
4. What is a status offense? Why are status offenses 10. Discuss the significance of concurrence.
not criminally punished?
11. Why is the criminal law concerned with causality?
5. Define the American bystander rule. When is an
12. Define cause in fact, proximate cause, interven-
individual criminally liable for an omission?
ing cause, coincidental intervening cause, and
6. List the various types of possession. responsive intervening cause.
LEGAL TERMINOLOGY
actual possession duty to intervene proximate cause

actus reus European bystander rule public welfare offenses
American bystander rule fleeting possession purposely
attendant circumstances general intent recklessly
causation Good Samaritan laws responsive intervening
intervening cause act
cause in fact
involuntary act result crimes
coincidental intervening
act joint possession specific intent
concurrence knowingly status
constructive intent mens rea strict liability offenses
constructive possession motive transferred intent
contraband negligently trial transcript
crimes of cause and result omission willful blindness

4 PARTIES TO CRIME
Did Gometz aid and abet the stabbing this off his chest, he returned to his cell (United States v.
Fountain, 768 F.2d 790 [7th Cir. 1985]).
of the prison guard?
In this chapter, learn about criminal liability under the
Three guards would escort Fountain and Silverstein (sepa- law of parties.
rately), handcuffed, every time they left their cells to go to
or from the recreation room, the law library, or the shower
(prisoners in Marion’s control unit are confined, one to a
cell, for all but an hour or an hour and a half a day, and Learning Objectives
are fed in their cells). But the guards would not be armed;
nowadays guards do not carry weapons in the presence of 1. Know the four categories of parties to a crime
prisoners, who might seize the weapons. . . . [That] morn- under the common law and the two categories
ing, Silverstein, while being escorted from the shower to of parties to a crime used in contemporary
his cell, stopped next to Randy Gometz’s cell, and while
statutes.
two of the escorting officers were for some reason at a
distance from him, reached his handcuffed hands into the 2. Describe the actus reus and mens rea of accom-
cell. The third officer, who was closer to him, heard the plice liability.
click of the handcuffs being released and saw Gometz
raise his shirt to reveal a home-made knife (“shank”)— 3. Understand the natural and probable conse-
which had been fashioned from the iron leg of a bed— quences doctrine.
protruding from his waistband. Silverstein drew the knife
and attacked one of the guards, Clutts, stabbing him 29 4. Know the elements of accessory after the fact.
times and killing him. While pacing the corridor after the 5. Understand the reasons that the law imposes
killing, Silverstein explained that “this is no cop thing.
vicarious liability.
This is a personal thing between me and Clutts. The man
disrespected me and I had to get him for it.” Having gotten
INTRODUCTION
Thus far, we have established a number of building or for who they are. Third, the existence of a criminal
blocks of criminal conduct. First, there are constitu- intent or mens rea means that punishment is limited
tional limits on the government’s ability to declare acts to morally blameworthy individuals. Last, there must
criminal. Second, actus reus requires that an individ- be a concurrence between a criminal act and a criminal
ual commit a voluntary act or omission. People are intent. The criminal act must be established as both
punished for what they do, not for what they think the factual cause and the legal or proximate cause of a
77
prohibited harm or injury. We now add another building block to this foundation by observing
that more than one individual may be liable for a crime. In this chapter, we will discuss two situa-
tions in which multiple parties are held liable for a crime.
•• Parties to a Crime or Complicity. Individuals who assist the perpetrator of a crime before,
during, or following the crime are held criminally responsible. In other words, individuals
who assist in the commission of a crime are held liable for the criminal conduct of the per-
petrator of the offense.
•• Vicarious Liability. Individuals may be held liable based on their relationship with the perpe-
trator of a crime. The most common instance involves extending guilt to an employer for
the acts of an employee or imposing liability on a corporation for the acts of a manager or
employee.
In considering cases concerning complicity, you should ask yourself whether the appellant
intended to assist and assisted a crime. As a matter of social policy, consider why we punish peo-
ple who assist another to commit a crime. Should the parties to a crime be subject to the same
punishment as the perpetrator? As for vicarious liability, consider whether criminal responsibility
should be extended to individuals who were neither present, involved, nor perhaps even aware of
the crime.
PARTIES TO A CRIME
Common law judges appreciated that criminal conduct often involves a range of activities: plan-
ning the crime, carrying out the offense, evading arrest, and disposing of the fruits of the crime.
The common law divided the participants in a crime into principals and accessories. Principals were
actually present and carried out the crime, while accessories assisted the principals. Holding indi-
viduals accountable for intentionally assisting the criminal acts of another is termed accomplice or
accessory liability.
The four categories of parties to a crime under the common law are as follows:
•• Principals in the first degree are the perpetrators of a crime—for example, the person
or persons actually robbing a bank.
•• Principals in the second degree are any individuals assisting the robbers. This includes
lookouts, getaway drivers, and those disabling burglar alarms. Principals in the second
degree are required to be either physically present at the bank or constructively present,
meaning that they directly assist the robbery at a distance by engaging in such activities as
serving as a lookout.
•• Accessories before the fact are those individuals who help prepare for the crime. In the
case of a bank robbery, accessories before the fact may purchase firearms or masks, plan the
crime, or encourage the robbers. Accessories, in contrast to principals, are neither physically
nor constructively present.
•• Accessories after the fact are those individuals who assist the perpetrators, knowing that
a crime has been committed. This includes those who help the bank robbers escape or hide
the stolen money.
Both principals and accessories were punishable as felons under the common law. All felonies
were subject to the death penalty. Common law judges desired to limit the offenses for which
capital punishment might be imposed, and they developed various rules to frustrate the appli-
cation of the death penalty. Judges, for instance, held that principals and accessories could be
prosecuted only following the conviction of the principal in the first degree. This posed a barrier
to prosecution in those instances in which the principal in the first degree was acquitted, fled, or
died, or in which the principal’s conviction was reversed. There were additional requirements that
complicated prosecutions, such as the fact that an accessory who assisted a crime while living in
another state could be prosecuted only in the state in which the acts of accessoryship occurred.
These jurisdictions typically had little interest in prosecuting an accessory for crimes committed
outside the state.1
CHAPTER 4 Parties to Crime 79
Today we are no longer required to overcome these complications. Virtually every jurisdiction
has abandoned the common law categories. States typically provide for two parties to a crime:
•• Accomplices are individuals involved before and during a crime.

•• Accessories are individuals involved in assisting an offender following a crime.
Returning to our bank robbery example, the perpetrator of the bank robbery and the individ-
uals planning and organizing the robbery as well as the lookout, the driver of the getaway car, and
the individuals disabling the bank guard will all be charged with bank robbery. In the event that
the accomplices are convicted, they may receive the same sentence as the perpetrator of the crime.
Individuals who assist the perpetrators following a crime will be charged as accessories after
the fact. Accessoryship is no longer viewed as being connected to the central crime. It is considered
a separate, minor offense involving the frustration of the criminal justice process, and it is punish-
able as a misdemeanor. Despite these changes to the law of parties, you will find that common law
categories are frequently referred to in judicial decisions and in various state statutes.
Holding an individual liable for the conduct of another seems contrary to the American value
of personal responsibility. Why should we punish an individual who drives a getaway car in a bank
robbery to the same extent as the actual perpetrator of the crime? The law presumes that the indi-
viduals who assisted the robber implicitly consented to be bound by the conduct of the principal
in the first degree and, in the words of Joshua Dressler, “forfeited their personal identity.” Professor
Dressler refers to this as derivative liability, in which the accessory’s guilt flows from the acts
of the primary perpetrator of the crime.2
ACTUS REUS OF ACCOMPLICE LIABILITY

Statutes and judicial decisions describe the actus reus of accomplice liability using a range of seem-
ingly confusing terms such as aid, abet, encourage, and command. Whatever the terminology, keep
in mind that the actus reus of accomplice liability is satisfied by even a relatively insignificant
degree of material or psychological assistance. In a well-known English case, a journalist bought a
ticket to attend and review a concert by American jazz musician Coleman Hawkins. The journal-
ist was convicted of encouraging and supporting Hawkins, who had not received permission to
perform from British immigration authorities.3 Some other examples of cases in which individuals
satisfied the actus reus of accomplice liability are listed below.
•• Two men attacked and broke Clifton Robertson’s leg. The men initially approached
Robertson’s brother-in-law, Carl Brown, who pointed to Robertson. Following the attack,
one of the assailants remarked to Brown, “You can pay me now.” Brown was found guilty
of aggravated assault for inciting, encouraging, or assisting the perpetrators of the assault.4
•• Guadalupe Steven Mendez was an incarcerated felon who, over the phone, directed Patricia
Morgan to molest and to take nude photos of her fourteen-year-old granddaughter. Mendez
was found to have aided and abetted aggravated rape.5
•• Prentiss Phillips was a high-ranking member of the Gangster Disciples street gang. He was
convicted of the murder and aggravated kidnapping of Vernon Green, whom he suspected of
standing outside of a meeting of the street gang in order to identify members of the Gangster
Disciples for the rival Vice Lords. Phillips allegedly ordered gang members to seize Green and
watched as Green was dragged upstairs, where he was beaten. Phillips later ordered three
gang members to take Green outside and kill him. Phillips was convicted of aiding and abet-
ting the murder and aggravated kidnapping of Green.6
•• Anderson handed Palfrey a handgun before fighting Carter. At some point during the fight,
Anderson retrieved the firearm and shot and killed Carter. The Louisiana Supreme Court
held that “[a]cting in concert each man . . . became responsible . . . not only for his own acts
but for the acts of the other.”7
In the cases discussed previously, the defendants’ acts clearly assisted, encouraged, or incited
criminal conduct. The mere presence rule provides that being present and watching the com-
mission of a crime is not sufficient to satisfy the actus reus requirement of accomplice liability. Why
is that? A mere presence is ambiguous. On the one hand, it is sometimes the case that an individu-
al’s presence encourages and facilitates a defendant’s criminal conduct. On the other hand, silence
may indicate disapproval.
An exception to the mere presence doctrine arises where defendants possess a duty to inter-
Read State v.
vene. In State v. Walden, a mother was convicted of aiding and abetting an assault with a deadly
Ulvinen on the
study site: study
weapon when she failed to intervene to prevent an acquaintance from brutally beating her young
.sagepub.com/ son. The North Carolina Supreme Court reasoned that a parent’s failure to protect his or her child
lippmaness2e. communicates an approval of the criminal conduct.8
You Decide 4.1 A woman entered a bar in New but the sixteen men in the bar yelled, laughed, and
Bedford, Massachusetts, in March cheered. No one came to her assistance. Were all fif-
1983, in order to purchase ciga- teen male customers and the male bartender accom-
rettes. As she started to leave, plices to the sexual attack? Various procedural issues
she was knocked to the ground by are discussed in Commonwealth v. Cordeiro, 519 N.E.2d
two men who tore off her clothing. For the next seven- 1328 (Mass. 1988), and Commonwealth v. Vieira, 519
ty-five minutes, she was forced to commit various sex- N.E.2d 1320 (Mass. 1988).
ual acts, which she resisted. The victim cried for help,
MENS REA OF ACCOMPLICE LIABILITY

A conviction for accomplice liability requires that a defendant both assist and intend to assist the
commission of a crime.
In most cases, an accomplice is required to intend or possess the purpose that an individual
commit a specific crime. This is described as dual intents:
•• the intent to assist the primary party, and

•• the intent that the primary party commit the offense charged.
In the words of Judge Learned Hand in United States v. Peoni, “mere knowledge” is not sufficient
to hold a defendant liable for aiding and abetting. A defendant must possess a “purposive attitude”
and “associate himself with the venture . . . as in something that he wishes to bring about, that he
seek by his action to make it succeed.”9
In other words, an individual will not be held liable as an accomplice for knowingly rather
than purposely
•• selling a gun to an individual who plans to rob a bank,

•• renting a room to someone who plans to use the room for prostitution, or
•• repairing the car of a stranded motorist who intends to use the auto to rob a bank.
The question of whether an individual possessed the purpose to assist an individual in com-
mitting a crime is not always easily determined. In State v. Barker, Barbara Barker appealed her
conviction of aiding and abetting her husband’s possession of thousands of images of child por-
nography on their home computer. There was evidence that in one instance prior to James Barker’s
arrest Barbara had seen child pornography on the computer and nonetheless on several occasions
“restored” the computer when the machine had “frozen up.” A Missouri appellate court overturned
Barbara’s conviction on the grounds that the evidence that Barbara had seen child pornography
on the machine did not support a reasonable inference that Barbara restored James’s computer
with the purpose or intent of aiding or encouraging James’s possession of child pornography. The
court noted that affirming Barbara’s conviction would mean that “[t]he continued payment of a
bill for the provision of internet access with knowledge that another in the home has previously
used the internet to access child pornography would support accomplice liability. Giving money
to a known drug addict where the money is thereafter used to buy drugs could support accomplice
liability.”10
Some judges have ruled that the mens rea requirement for accomplice liability in the case of
serious crimes is satisfied by knowledge of a principal’s criminal plans and that an accomplice
is not required to share the principal’s criminal purpose. An example may be knowingly selling
explosives to an individual who plans to commit an act of terrorism.11
Regardless of whether a “purposive” or “knowledge” standard is employed, an accomplice is
subject to the natural and probable consequences doctrine. This provides that a person
encouraging or facilitating the commission of a crime will be held liable as an accomplice for the
crime he or she aided and abetted as well as for crimes that are the natural and probable outcome
of the criminal conduct.
You Decide 4.2 Mark Manes, twenty-two, met lives. Harris and Klebold left a tape recording thanking
Eric Harris, a seventeen-year-old Manes for his help and urged that he not be arrested,
student at Columbine High School because they would have eventually found someone
in Littleton, Colorado, at a gun else willing to sell them guns and ammunition.
show. Manes purchased a semiau- As a prosecutor, would you charge Manes as an
tomatic handgun for Harris and accompanied Harris to a accomplice to the murders? To the suicides? What if
target range. After hitting a target, Harris excitedly pro- Harris and Klebold arrived at the school armed with
claimed that this could have been someone’s brain. weapons and ammunition provided by Manes but used
Several months later, Manes sold Harris one hundred other weapons to kill? What if they left the weapons
rounds of ammunition for $25. The next day, Harris and and ammunition provided by Manes at home? See
Dylan Klebold entered Columbine High School and killed Joshua Dressler, Cases and Materials on Criminal Law,
twelve students and a teacher and then took their own 3rd ed. (St. Paul, MN: West, 2003), p. 886.
Natural and Probable Consequences Doctrine

The leading case on the natural and probable consequences doctrine is the Maine case of State v.
Linscott.12 Joel Fuller enlisted William Linscott in a robbery scheme. The plan was for Linscott and
Fuller to enter through the back door to prevent Norman Grenier from grabbing a shotgun that
he kept in the bedroom. Linscott carried a hunting knife and a switchblade, and Fuller was armed
with his shotgun. As they approached the house, they saw that the snow blocked the back door
and revised their plan. Linscott was to break the living room picture window, whereupon Fuller
would freeze Grenier with the shotgun while Linscott seized the cash.
Linscott broke the window with his body, and Fuller immediately fired a shot through the
broken window, killing Grenier. Fuller entered the house through the broken window and took
$1,300 from Grenier’s pocket. Fuller gave Linscott $500.
Linscott later was arrested. He claimed that it was not unusual for Fuller to carry a shotgun,
although he was unaware that Fuller had a reputation for violence. He also claimed that although
he may have been negligent, he had no intention of killing Grenier during the course of the rob-
bery. Linscott was convicted of intentionally or knowingly killing Grenier. The court found that
he possessed the intent to commit the crime of robbery and that the murder was a reasonably fore-
seeable consequence of Linscott’s participation in the robbery. The court recognized that Linscott
did not intend to kill Grenier and that he probably would not have participated in the robbery
had he believed that Grenier would be killed during the course of the robbery. A small number of
courts have rejected the natural and foreseeable consequences doctrine as unfair to an accessory
who lacked the intent to commit the more serious offense.13
You Decide 4.3 Leon McCoy conspired with took C.B.’s personal cash. He demanded a bag for
Keith Lamar Bellamy to rob a the cash. McCoy, went to the front near the service
McDonald’s restaurant where McCoy counter and got a bag. Although there were several
worked. Andre Randall, McCoy’s silent alarms in this area, McCoy did not activate any
coworker, was aware of the plan. of the alarms.
C.B. was working the evening shift as the Once he bagged the money, Bellamy told C.B. to
assistant manager of a McDonald’s in Wilmington, undress. As she was unbuttoning her shirt, he said
Delaware. She was assisted by defendant Leon McCoy she was taking too long and he told her to just drop
(McCoy) and Andre Randall (Randall). C.B. locked the her pants and underwear. He then demanded that she
doors at 10:00 that night. Randall took out the trash, spread her labia apart. He stooped down to inspect
and, contrary to restaurant policy, failed to notify C.B. her genitals, and used the barrel of his gun to pull her
who ordinarily opened and locked the door. Randall labia further apart. He noticed that she had a tampon
simply opened the door and, rather than closing the inserted, and told her that she was “lucky.” Following
door, turned the deadbolt so as to keep the door ajar. the robbery, Bellamy fled and McCoy went to the front
Bellamy, who was armed, entered at around 11:30 as of the store and hit a silent alarm. There were security
McCoy was mopping the hallway and C.B. was prepar- cameras in the store recording the robbery. Is McCoy
ing the night deposit. Bellamy put the gun to the side guilty of sexual assault? See State v. Bellamy, 617
of C.B.’s head and seized the deposit money; he also S.E.2d 81 (N.C. App. 2005).
ACCESSORY AFTER THE FACT

The Common Law
Conviction as an accessory after the fact at common law required that a defendant conceal or assist
an individual whom he or she knew had committed a felony in order to hinder the perpetrator’s
arrest, prosecution, or conviction. For example, an individual would be held liable for assisting a
friend, whom he or she knew had killed a member of an opposing gang, to flee to a foreign country.
Accessories after the fact at common law were treated as accomplices and were subject to the
same punishment as the principal who had committed the offense. A wife, however, could not be
held liable as an accessory after the fact because it was expected that she had assisted her husband.
The Elements of Accessory After the Fact

The elements of accessory after the fact are as follows:
• Commission of a Felony. There must be a completed felony. The crime need not have been
detected or formal charges filed.
• Knowledge. The defendant must possess knowledge that the individual whom he or she is
assisting has committed a felony. A reasonable but mistaken belief does not create liability. In
Browne v. People, Marcella Browne was charged and convicted as an accessory after the fact under
the Virgin Islands Code for making a false statement to the police. Marcella allegedly lied to pro-
tect her husband Jeffrey Browne and her brother, Luis Melendez, who were suspected of a killing
in a public housing project. Marcella falsely told the police that Jeffrey and Luis were at her house
at the time of the killing and that she was driving around in the couple’s auto at the time of the
killing. The Supreme Court of the Virgin Islands overturned Marcella’s conviction and explained
that although she was informed of the killing, she did not know that Browne and Melendez had
been involved in the shooting.14
• Affirmative Act. The accessory must take affirmative steps to hinder the felon’s arrest; a refusal
or failure to report the crime or to provide information to the authorities is not sufficient. Examples
of conduct amounting to accessoryship after the fact are hiding or helping a felon escape, destroy-
ing evidence, or providing false information to the police in order to mislead law enforcement
officials. In State v. Thomas, an Illinois appellate court overturned the defendant’s conviction and
held that the defendant’s failure to disclose the identity of a killer to the police did not constitute
an “affirmative misrepresentation” and a “misleading” of the police.15
• Criminal Intent. The defendant must provide assistance with the intent or purpose of hinder-
ing the detection, apprehension, prosecution, conviction, or punishment of the individual receiv-
ing assistance. In State v. Jordan, Kenneth Jordan shot Christopher Pendley after seeing Pendley
talking to Teresa Jordan, Kenneth’s wife. Teresa was convicted of being an accessory after the fact
based on her falsely reporting to friends, nurses, and the police and testifying at trial that Pendley
had been shot while attempting to rape her. Kenneth pled guilty to the voluntary manslaughter of
Pendley prior to Teresa’s conviction.16
The modern view is that because accessories after the fact are involved following the comple-
tion of a crime, they should not be treated as harshly as the perpetrator of the crime or accomplices.
Accessories after the fact are now held liable for a separate, less serious felony or for a misdemeanor.
Some states have abandoned the crime of accessory after the fact and have created the new offense
of “hindering prosecution,” which punishes individuals frustrating the arrest, prosecution, or con-
viction of individuals who have committed felonies as well as misdemeanors. An example is Model
Penal Code Section 242.3, which is reprinted in the text below.
Most states have abandoned the common law requirements that impeded the conviction of
individuals for accessoryship after the fact. A spouse remains immune from prosecution as an
accessory after the fact in fourteen states. In 1999, Florida amended the law to exclude child abuse
or related crimes from the law protecting family members from liability.17 The common law rule
that an individual may be prosecuted only for being an accessory after the fact following the
conviction of the principal has also been modified. Most states require only proof of a completed
felony.
On April 15, 2013, two homemade bombs were ignited at the finish line of the Boston
Marathon by Dzhokhar Tsarnaev and his older brother Tamerlan Tsarnaev, who later was killed
in a shoot-out with the police. The bomb killed three people and wounded more than 260 oth-
ers, a number of whom were severely injured (discussed in Chapter 14). Three college friends of
Dzhokhar were found guilty in 2014 of obstruction of justice when following the bombing they
removed a backpack containing incriminating evidence from Dzhokhar’s dorm room and disposed
of the backpack in a Dumpster.
Model Penal Code

Section 242.3. Hindering Apprehension or Prosecution
A person commits an offense if, with purpose to hinder the apprehension, prosecution, conviction
or punishment of another for crime, he:
(1) harbors or conceals the other; or

(2) provides or aids in providing a weapon, transportation, disguise or other means of avoiding
apprehension or effecting escape; or
(3) conceals or destroys evidence of the crime, or tampers with a witness, informant, document
or other source of information, regardless of its admissibility in evidence; or
(4) warns the others of impending discovery or apprehension . . . or
(5) volunteers false information to a law enforcement officer.
Analysis
The Model Penal Code views accessory after the fact as obstruction of justice and does not require
that the person providing assistance be aware that the alleged offender actually committed a
crime. The essence of the crime is interference with the functioning of the legal process. An indi-
vidual charged with accessory after the fact is thus not treated as a principal. Liability extends to
assisting an individual avoid apprehension for a misdemeanor as well as a felony. The Model Penal
Code specifies the type of assistance that is prohibited to prevent courts from too narrowly or too
broadly interpreting the behavior that is prohibited.
Accessory after the fact is punished as a felony carrying five years’ imprisonment if the person
aided is charged or is liable to be charged with a felony of the first or second degree. Assisting a fel-
ony of the third degree (one to two years in prison) or a misdemeanor is punished as a misdemeanor.
The fact that the person who provides assistance is related to the individual confronting a criminal
charge is to be considered as a mitigating factor at sentencing rather than as a complete defense.
The Legal Equation

Accessory after the fact = Conceals or assists an individual
+ whom he or she knows to have committed a felony
+ in order to hinder the perpetrator’s arrest,

prosecution, or conviction.
You Decide 4.4 In a Mississippi case, Xavier arrested and convicted of statutory rape. Charlotte was
Sherron began having intercourse arrested as an accessory after the fact to the statutory
with his thirteen-year-old step- rape based on her assisting Jane in obtaining an abor-
daughter, Jane, in December 2001 tion. There was no charge brought against Charlotte for
or Januar y 20 02. Charlot te failing to fulfill her obligation as a Mississippi school
Sherron, Xavier’s wife and Jane’s mother, learned that employee to inform the police of Jane’s abuse.
Xavier had been having intercourse with Jane on a regu- The court analyzed Jane’s abortion under the
lar basis, and Xavier assured her that he would not con- requirements of Mississippi law and noted that
tinue to molest Jane. Charlotte directed Jane to lock her Alabama law presumably contained the same provi-
door. Charlotte needed Xavier’s monthly disability sions. A child who desires to obtain an abortion in
checks to make ends meet and did not ask him to leave Mississippi either must get parental consent or must
her house. Charlotte also was fearful that in the event petition the court for permission to obtain an abor-
the rape was revealed, her three children would be tion. The appellate court stated that the question is
taken from her by state authorities. whether Charlotte’s consent to Jane’s abortion was
In February 2002, Jane told Charlotte that she based on a desire to support her daughter or based on
was pregnant and stated that an abortion was pref- an intent to conceal her husband’s crimes. There was
erable to bearing Xavier’s child. Charlotte agreed with testimony at trial that Charlotte was afraid of Xavier,
other family members that she would not contact the who in the past had choked Charlotte and had thrown
police, and Charlotte arranged for an abortion for Jane objects at her.
in Tuscaloosa, Alabama. Both Charlotte and Xavier Would you convict Charlotte of being an accessory
drove Jane to Tuscaloosa. In May 2002, Jane’s uncle after the fact to Xavier’s statutory rape? See Sherron v.
approached the police, and Xavier subsequently was State, 959 So. 2d 30 (Miss. App. 2006).

In December 1996, Robert Lee Thompson, age twen- of a two-month crime spree. Thompson approached
ty-one, and Sammy Butler, age nineteen, robbed a clerk Mobarakali Meredia; when Meredia hesitated,
convenience store in Houston, Texas. This was part Thompson shot him four times. Thompson then put
the gun to Meredia’s neck, pulled the trigger, and found commuted the death sentence of Kenneth Foster, who
that the chamber was empty. Thompson in frustration had been sentenced to death under the “law of par-
pistol-whipped Meredia and hit him in the head with ties.” Governor Perry rejected the board’s recommen-
the cash tray from the register. Thompson next fired dation, and announced that “after reviewing all of the
two shots that missed the other clerk, Mansoor Rahim, facts in the case of Robert Lee Thompson, who had
who was in the rear of the store. Thompson and Butler a murderous history and participated in the killing of
fled and drove away with Thompson behind the wheel. Mansoor Bhai Rahim Mohammed, I have decided to
Rahim ran from the store into the parking lot and was uphold the jury’s capital murder conviction and capi-
shot and killed by Butler. Butler and Thompson were tal punishment for this heinous crime.” Thompson
prosecuted and convicted in March 1998. Butler was was executed almost immediately following Governor
sentenced to life imprisonment, and Thompson was Perry’s decision. Just before his execution, Thompson
sentenced to death. claimed to have converted to Islam and sought forgive-
Texas is the only state that authorizes the execu- ness from the victims’ families and from Allah.
tion of an individual who “solicits, encourages, directs, The prevailing law under the Eighth Amendment
aids or attempts to aid” the “triggerman” in a hom- on the constitutionality of executing individuals who
icide. Five individuals had been executed under the do not actually kill is not entirely clear. In Enmund v.
Texas “law of parties” in the past. At the punishment Florida, the U.S. Supreme Court held that it was uncon-
stage, prosecutors alleged that Thompson had been stitutional to execute the driver of a getaway car who
involved in at least eight other robberies that resulted lacked a criminal intent and who did not participate in
in fatalities, two of which took place in the twenty-four a robbery and murder (458 U.S. 782 [1982]). On the
hours before the robbery–murder of the convenience other hand, in Tison v. Arizona, the Court noted that
store clerks. “substantial participation in a violent felony under cir-
The Texas Board of Pardons and Paroles voted 5-2 cumstances likely to result in the loss of innocent life
to recommend to Governor Rick Perry that he commute may justify the death penalty even absent an intent to
Thompson’s sentence. Perry, in fact, had only recently kill” (481 U.S. 137 [1987]).
VICARIOUS LIABILITY
We have seen that strict liability results in holding a defendant criminally responsible for the com-
mission of a criminal act without a requirement of a criminal intent. An act, in other words, is all
that is required. Vicarious liability imposes liability on an individual for a criminal act com-
mitted by another. The other person acts, and you are responsible. Accomplice liability, in contrast,
holds individuals responsible who affirmatively aid and abet a criminal act with a purposeful
intent.
Vicarious liability is employed to hold employers and business executives and corporations
(which are considered “legal persons”) liable for the criminal acts of employees. Vicarious liability
has also been used to hold the owner of an automobile liable for parking violations committed by
an individual driving the owner’s car. Another example of vicarious liability is imposing liability
on parents for crimes committed by their children.
Vicarious liability is contrary to the core principle that individuals should be held responsible
and liable for their own conduct. The primary reason for this departure from individual responsi-
bility in the case of corporate liability is to encourage employers to control and to monitor employ-
ees so as to ensure that the public is protected from potential dangers, such as poisoned food.18
We have distinguished strict and vicarious liability. Keep in mind that statutes that are intended
to protect the public health, safety, and welfare typically combine both doctrines. In the California
case of People v. Travers, Greg Mitchell, a service station employee, misrepresented the quality of
motor oil he sold to the public. The defendant, Charles Travers, was the owner of the station and
was prosecuted along with Mitchell under a statute that punished the sale of a misbranded prod-
uct. Travers objected that he was completely unaware of Mitchell’s actions. The court reasoned
that the importance of smoothly running motor vehicles and the right of the public to receive
what they paid for justified the imposition of vicarious liability on Travers without the necessity of
demonstrating that he possessed a criminal intent. The court explained that it was reasonable to
expect a service station owner to supervise the sale of motor oil, and requiring the prosecution to
establish criminal intent would permit owners to escape punishment by pleading that they were
unaware of the quality or contents of the motor oil sold in their service stations.19
Is it fair to impose strict liability on Travers for the acts of Mitchell? Would a significant num-
ber of guilty people be acquitted in the event that the court required the prosecution to establish
a criminal intent? Professor Wayne LaFave poses a choice between punishing one hundred people
for selling tainted food under a strict liability statute and using an intent standard that would
result in the conviction of five of the one hundred. The first alternative would result in some inno-
cent people being convicted; the second alternative would result in some guilty people avoiding a
criminal conviction. What is the better approach?20
The Legal Equation

Vicarious liability = Voluntary act or omission or possession by another
+ status of employer, parent, or owner of automobile.
You Decide 4.5 A seventeen-year-old rented that sexually oriented rentals would not be made to juve-
sexually oriented videotapes on niles. Tomaino was absent from the store at the time of
two occasions from VIP Video in the rentals. He was convicted under a statute that pro-
Millville, Ohio. The first time, the vides that “no person, with knowledge of its character or
seventeen - year- old used his content, shall recklessly . . . sell . . . material . . . that
father’s driver’s license for identification. The second is obscene or harmful to juveniles.”
time, he paid in cash, and the clerk did not ask him for Should Tomaino’s conviction be overturned? Could
an identification or proof of age. The owner of the store, he constitutionally be sentenced to prison? See State
Peter Tomaino, did not post a sign in the store indicating v. Tomaino, 733 N.E.2d 1191 (Ohio App. 1999).

Susan and Anthony Provenzino of St. Clair Shores, Roughly seventeen states and cities today have
Michigan, were aware that their son Alex was experi- similar parental responsibility laws. States have a
encing difficulties. He was arrested in May 1995, and long history of passing laws against parents who
the Provenzinos obtained Alex’s release from juvenile abuse, neglect, or abandon their children or fail to
custody in the fall of 1995, fearing that he would be ensure that their children attend school. In 1903,
mistreated by violent juveniles housed in the facility. Colorado was the first state to punish “contributing to
Over the course of the next year, Alex was involved in the delinquency of a minor.” Similar provisions were
a burglary, excessive drinking, and using and selling subsequently adopted by roughly forty-two states and
marijuana. Alex verbally abused his parents at home the District of Columbia. These statutes are not limited
and, on one occasion, attacked his father with a golf to parents; and they require some affirmative act on
club. In May 1996, the Provenzinos were convicted of the part of an adult that aids, encourages, or causes
violating a two-year-old local ordinance that placed an the child’s delinquent behavior.
affirmative responsibility on parents to “exercise rea- The first wave of parental responsibility statutes
sonable control over their children.” The jury required was passed in the late 1980s and early 1990s, when
only fifteen minutes to find them guilty; each was fined various states and municipalities adopted laws holding
$100 and ordered to pay $1,000 in court fees. parents strictly and vicariously liable for the c riminal
conduct of their children. It was presumed that parents any person under the age of 18 years shall have the
possess a duty to supervise their offspring and that duty to exercise reasonable care, supervision, protec-
this type of statute would encourage parents to mon- tion, and control over their minor child.” A parent or
itor and to control their kids. These strict and vicar- guardian whose “act or omission causes or tends to
ious liability statutes were ruled unconstitutional in cause or encourage a child to violate a curfew, be habit-
Connecticut, Louisiana, Oregon, and Wyoming. ually truant or commit a crime” is held liable under the
Parental responsibility statutes generally hold statute. In other words, parents are held liable who
parents responsible for the failure to take reasonable know or should know “that their child is at risk of delin-
steps to prevent their children from engaging in seri- quency and . . . they are able to control the child.” A
ous or persistent criminal behavior. A New York law, for violation of the statute is punished as a misdemeanor,
instance, punishes a parent who “fails or refuses to although the charges may be dismissed prior to trial
exercise reasonable diligence in the control of . . . a against a parent or guardian who completes an edu-
child to prevent him from becoming . . . a ‘juvenile cation, treatment, or rehabilitation program. The leg-
delinquent’ or a ‘person in need of supervision.’ . . .” islature passed the law as part of an effort to combat
These statutes, as illustrated by the New York law, gen- “violent street gangs whose members threaten, ter-
erally lack clear and definite standards. rorize, and commit a multitude of crimes against the
There are a variety of laws that hold adults liable for peaceful citizens of . . . neighborhoods.”
teenage drinking. Social host liability laws hold adults The California Supreme Court stressed that the
liable for providing liquor in their home to minors in the provision for parental diversion from criminal prosecu-
event that an accident or injury occurs. Variants are tion in “less serious cases” means that parents will
so-called teen party ordinances, which declare that it is face criminal penalties for a “failure to supervise only
criminal for an adult to host a party for minors at which in those cases in which the parent’s culpability is great
alcohol is served. Some states impose misdemeanor and the causal connection correspondingly clear.” On
liability on parents whose children fail to attend school one hand, it seems unfair to hold parents vicariously
on a regular basis. See In re Gloria H., 979 A.2d 710 liable for the criminal acts of their children. On the
(Md. 2009). other hand, parents would certainly seem to have cer-
In 1993, in Williams v. Garcetti, 853 P.2d 507 (Cal. tain obligations and responsibilities to society based
1993), the California Supreme Court upheld the con- on their decision to have children. Holding parents lia-
stitutionality of a California parental responsibility stat- ble may lead them to closely supervise their children
ute. The law stated that a “parent or legal guardian to and may serve to protect society. What is your view?
CASE ANALYSIS
In State v. Robinson, the Michigan Supreme Court decided whether to hold Robinson liable for
murder based on the natural and probable consequences doctrine.
Should Robinson Be Held Liable for Murder?
State v. Robinson, 715 N.W.2d 44 (Mich. 2006)
According to the evidence adduced at trial, defendant kick the victim. Defendant told Pannell that “that was
and Pannell went to the house of the victim, Bernard enough,” and walked back to the car. When defendant
Thomas, with the stated intent to “f--- him up.” Under reached his car, he heard a single gunshot.
Pannell’s direction, defendant drove himself and Following a bench trial, the trial court found
Pannell to the victim’s house. Pannell knocked on defendant guilty of second-degree murder. Specifically,
the victim’s door. When the victim opened the door, the court found that defendant drove Pannell to the
defendant struck him. As the victim fell to the ground, victim’s house with the intent to physically attack the
defendant struck the victim again. Pannell began to victim. The court also found that once at the victim’s
(Continued)
(Continued)
home, defendant initiated the attack on the victim, back of his hand. After the victim fell to the ground,
and that defendant’s attack enabled Pannell to “get Pannell punched him twice and began kicking him. In
the upper-hand” on the victim. The court sentenced our judgment, a natural and probable consequence of
defendant to a term of 71 months to 15 years. a plan to assault someone is that one of the actors may
The evidence establishes that the victim threat- well escalate the assault into a murder. . . . Pannell’s
ened Pannell’s children in Pannell’s presence, enrag- anger toward the victim escalated during the assault
ing Pannell. When defendant woke up at 10:00 that into a murderous rage.
evening, Pannell was still “ranting and raving” in the A “natural and probable consequence” of leav-
house. Despite knowing that Pannell was in an agitated ing the enraged Pannell alone with the victim is that
state, defendant agreed to drive to the victim’s house Pannell would ultimately murder the victim. That
with the understanding that he and Pannell would defendant . . . left the scene of the crime moments
“f--- him up.” When the pair arrived at the victim’s before Thomas’s murder does not under these cir-
home, defendant initiated the assault by hitting the cumstances exonerate him from responsibility for the
victim once in the face and once in the neck with the crime.
CHAPTER SUMMARY
We have seen that under the common law there were which he or she is charged. Some judges have argued
four parties to a crime. The procedural requirements for a knowledge standard, but other courts have recog-
surrounding the prosecution of parties developed by nized liability based on recklessness. The criminality
judges were intended to impede the application of the of an accessory after the fact is distinguished from that
death penalty. Today there are two parties to a crime: of accomplices by the fact that the legal guilt of an
accessory after the fact is not derived from the primary
1. Accomplices. Individuals participating before crime. Instead, accessory after the fact is now consid-
and during a crime ered a separate and minor offense involving an intent
and an act undertaken with the purpose of hindering
2. Accessories. Individuals involved following a
the detection, apprehension, prosecution, conviction,
crime
or punishment of the individual receiving assistance.
Strict liability holds an individual liable based on
The actus reus of accomplice liability is described as the commission of a criminal act while dispensing
“aiding,” “abetting,” “encouraging,” and “command- with the requirement of a criminal intent. Vicarious
ing” the commission of a crime. This is satisfied by liability imposes liability on an individual for the crim-
even a small degree of material or psychological assis- inal act of another. Parents, under some state statutes,
tance. Mere presence is not sufficient. The mens rea of are held vicariously liable for the criminal conduct of
accomplice liability is typically described as the intent their children based on their status relationship.
to assist the primary party to commit the offense with
1. What were the four categories of common law par- 3. What actus reus is required for an accomplice?
ties? How does this differ from the modern catego- Provide some illustrations of acts satisfying the actus
rization of parties? reus requirement. What is the mere presence rule? Is
there an exception to the mere presence rule?
2. Illustrate the definition of common law accom-
plices and accessories using the example of a bank 4. Discuss the mens rea of accomplice liability.
robbery. Should accomplices be held liable for the Distinguish this from the minority position that
same crime as the primary perpetrator of the crime? “knowledge” is sufficient. How would these two
approaches result in a different outcome in a case? 7. What constitutional considerations are involved in
Which approach do you favor? holding the owner of an automobile vicariously lia-
ble for the traffic tickets issued to the car?
5. What are the requirements for an individual to be
considered an accessory after the fact? Is this con- 8. Is it constitutional to hold parents strictly and
sidered as serious a criminal violation as being an vicariously liable for the criminal acts of their
accomplice? children? In your view, are there any situations in
which parents should or should not be held vicari-
6. Distinguish accomplice liability, strict liability, and
ously liable?
vicarious liability.
9. Write a brief essay summarizing the law of parties.
LEGAL TERMINOLOGY
accessories mere presence rule principals in the first degree

accessories after the fact natural and probable principals in the second degree
consequences doctrine
accessories before the fact social host liability laws
parental responsibility laws
accomplices vicarious liability
parties to a crime
derivative liability

AT TEMPT, SOLICITATION,
5 AND CONSPIR AC Y
Was the defendant guilty of an rifle, ammunition and lighting devices, the strongest of
which was attached to a miner’s cap, worn by defendant.
attempt to illegally kill a deer? . . . Upon examination of the decoy, the wardens deter-
mined that one eye [of the deer] had been shattered by a
At approximately nine o’clock on the night of November gun shot. (State v. Curtis, No. 89-621 [Vt. 1991])
18, 1988, two state game wardens placed a deer decoy
in a field. . . . The wardens constructed the decoy using In this chapter, learn about criminal attempts and
[S]tyrofoam and wood, a deer hide covering, and a mounted impossibility.
deer head. They designed the body of the decoy to closely
resemble the physique and proportions of a deer, covering
its glass eyes with reflective tape to simulate the appear- Learning Objectives
ance of a live deer’s eyes. The decoy was placed eighty-
three feet from the road.
1. Understand the mens rea and actus reus of crim-
Positioning themselves so that they could observe the
area undetected, the wardens saw defendant’s pickup inal attempts.
truck proceeding slowly along the town road. . . . The war- 2. Know the mens rea and actus reus of solicitation.
dens saw the silhouette of a rifle emerge from the driver’s
window and heard a gun shot almost immediately thereaf- 3. Understand the mens rea and actus reus of
ter. The wardens converged on the truck, identifying defen- conspiracy.
dant as the operator of the truck and seizing a .22 caliber
INTRODUCTION
We live in fear of a terrorist bombing or hijacking and certainly do not want to wait for an attack to occur
before arresting terrorists. On the other hand, at what point can we be confident that individuals are intent on
terrorism?
Inchoate or “beginning” crimes provide that individuals can be convicted and punished for an intent to
commit a crime when this intent is accompanied by a significant step toward the commission of the offense.
At this point, society is confident that the individual presents a threat and is justified in acting to protect itself.
There are three inchoate crimes:
1. Attempt punishes an unsuccessful effort to commit a crime.

2. Conspiracy punishes an agreement to commit a crime and an overt act in furtherance of this agreement.
3. Solicitation punishes an effort to persuade another individual to commit a crime.
91
The conviction of an individual for an inchoate crime requires
•• a specific intent or purpose to accomplish a criminal offense, and

•• an act to carry out the purpose.
Individuals who commit inchoate offenses may be punished less severely than or as severely
as they would have been punished if they had completed the crime that was the object of the
attempt, conspiracy, or solicitation.
ATTEMPT
Professor George Fletcher notes that attempts are failures.1 A sniper misses an intended victim, two
robbers are apprehended as they enter a store, and a pickpocket finds that the victim’s pocket is
empty. In this section, we will ask at what point an attempt is subject to criminal punishment.
Must we wait until a bullet misses its mark and whistles past the head of an intended victim to
arrest the shooter? What defenses are available? May a pickpocket plead that the intended victim’s
pocket was empty?
There are two types of attempts: complete attempt (but “imperfect”) and incomplete
attempt. A complete, but imperfect, attempt occurs when an individual takes every act required
to commit a crime and yet fails to succeed. An example is an individual firing a weapon and
missing the intended victim. In the case of an incomplete attempt, an individual abandons or is
prevented from completing a shooting due to the arrival of the police or as a result of some other
event outside his or her control. A third category that we should mention is the impossible attempt.
This arises where the perpetrator makes a mistake, such as aiming and firing the gun only to realize
that it is not loaded. You should keep these categories in mind as you read the cases on attempt.2
Judges and lawyers, as we mentioned, disagree over how far an individual must progress toward
the completion of a crime to be held legally liable for an attempt. It is only when an assailant pulls
the trigger that we can be confident that he or she possesses an intent to kill or to seriously wound
a potential victim. Yet, the longer we wait to arrest an individual, the greater the risk that he or she
may carry out the crime and wound or kill a victim. At what point do you believe the police are
entitled to arrest a potential assailant?
In People v. Miller, Charles Miller, while slightly inebriated, threatened to kill Albert Jeans.
Miller appeared that afternoon on a farm owned by Sheriff Ginochio where Jeans worked. Miller
was carrying a .22-caliber rifle and walked toward Ginochio, who was 250 or 300 yards in the
distance. Jeans stood roughly 30 yards behind Ginochio. The defendant walked about 100 yards,
stopped, appeared to load his rifle, and then continued to walk toward Ginochio, who seized the
weapon from Miller without resistance. Jeans, as soon as he saw Miller, fled on a right angle to
Miller’s line of approach, but it is not clear whether this occurred before or after Miller crouched
and appeared to place a bullet in the rifle. The firearm was loaded with a high-speed cartridge. At
no time did Miller raise and aim his rifle. Was this sufficient for an attempt?
What was Miller’s intent, to frighten Jeans or to kill him? Should we consider Jeans’s reac-
tion in determining Miller’s guilt? Consider the presence of Ginochio in formulating your view.
Would you hold Miller liable for an attempt to kill Jeans? Should an attempt be punished to the
same extent as the actual offense? Do you believe that the resources of the legal system should be
devoted to prosecuting Miller under the circumstances?3
History of Attempt
Scholars and philosophers dating back to the ancient Greeks have wrestled with the appropriate
punishment for an attempted crime. After all, an attempt arguably does not result in any harm.
In 360 B.C., the famous Greek philosopher Plato argued that an individual who possesses “the
purpose and intention to slay another . . . should be regarded as a murderer and tried for murder.”
Plato, however, also recognized that an attempt does not result in the death of the victim and that
banishment rather than the death penalty would be an appropriate penalty.4
The early common law did not punish attempts. Henry of Bracton explained this by ask-
ing, “What harm did the attempt cause, since the injury took no effect?”5 England, rather than
CHAPTER 5 Attempt, Solicitation, and Conspiracy 93
r elying on the prosecution of attempts to prevent and punish the first steps toward crime, adopted
laws against unlawful assemblies, walking at night, and unemployed persons wandering in the
countryside, as well as other prohibitions on activities that may result in crime, such as keeping
guns or crossbows in the house, lying in wait, or drawing a sword to harm a judge. Gaps in the law
were filled by the Court of Star Chamber, which was authorized by the king to maintain order by
modifying common law rules where necessary. These were volatile and violent times, and the Star
Chamber began to introduce the concept of attempts into the law by punishing threats and verbal
confrontations that were likely to escalate into armed confrontations, challenges, and attempts to
enter into duels. In 1614, Sir Francis Bacon prosecuted a case before the Star Chamber for dueling
in which he argued that acts of preparation for a sword fight should be punished in order to dis-
courage armed confrontations.
The law of attempt was finally recognized by the common law in the important decision of Rex v.
Scofield in 1784. The defendant was charged with placing a lighted candle and combustible material
in a house with the intent of burning down the structure. Lord Mansfield, in convicting the defen-
dant, stressed the importance of intent, writing that “the intent may make an act, innocent in itself,
criminal. . . . Nor is the completion of an act, criminal in itself, necessary to constitute criminality.”6
In 1801, the law of attempt was fully accepted in the case of Rex v. Higgins, which involved the indict-
ment of an individual for urging a servant to steal his master’s goods. The court proclaimed that “all
offenses of a public nature, that is, all such acts or attempts as tend to the prejudice of the community,
are indictable.”7 This common law rule was subsequently accepted by courts in the United States,
which ruled that it was a misdemeanor to attempt to commit any felony or misdemeanor. An attempt
“merges into the completed crime,” and a defendant may not be convicted of both an attempt and the
target crime and typically is punished less severely for the attempt than for the substantive offense.8
Public Policy and Attempt

Why punish an act that does not result in the successful commission of a crime? There are at least
three good reasons:
•• Retribution. An individual who shoots and misses or makes efforts to commit a murder is
as morally blameworthy as a successful assailant. Success or failure may depend on unpre-
dictable factors, such as whether the victim moved to the left or to the right or whether the
police happened to drive by the crime scene.
•• Utility. The lesser punishment for attempt provides an incentive for individuals to halt before
completing a criminal act in order to avoid being subjected to a harsher punishment.
•• Incapacitation. The individual has demonstrated that he or she poses a threat to society.
The Elements of Criminal Attempt

Criminal attempt comprises three elements:
1. an intent or purpose to commit a crime,

2. act or acts toward the commission of the crime, and
3. a failure to complete the crime.
A general attempt statute punishes an attempt to commit any criminal offense. Other statutes
may be directed at specific offenses, such as an attempt to commit murder, robbery, or rape.
The Legal Equation
Attempt = Step toward the completion of a crime
+ specific intent or purpose to commit the crime attempted
+ failure to complete the crime.

Mens Rea of Attempt

A criminal attempt involves a dual intent.
•• An individual must intentionally perform acts that are proximate to the completion of a
crime.
•• An individual must possess the specific intent or purpose to achieve a criminal objective.
In the case of an individual accused of attempted murder, the prosecution must demonstrate
that (1) the defendant intentionally aimed and engaged in an act toward the shooting of the arrow,
and (2) this was undertaken with the intent to kill a hunter walking on the trail. A defendant who
did not notice the hunter and lacked the intent to kill would not be held liable for attempted pre-
meditated murder.9 As noted by an Illinois appellate court, “a finding of specific intent to kill is a
necessary element of intent to kill.”10
The commentary to the Model Penal Code (MPC) offers the example of an individual who det-
onates a bomb with the purpose of demolishing a building knowing that people are inside. In the
event that the bomb proves defective, the commentary notes that the defendant likely would not
be held responsible for attempted murder, because his or her purpose was to destroy the building
rather than to kill the individuals inside the structure. MPC Section 5.01(1)(b), in this instance,
adopts a broad approach to intent and argues that when a defendant knows that death is likely to
result from the destruction of the building, it is appropriate to hold him or her liable for attempted
murder.11
Actus Reus of Attempt

There are two steps in considering the actus reus of attempt. First, determine the legal test to be
applied. Second, apply the legal test to the facts. There are a number of often-confusing legal tests
that courts have adopted to determine attempt.
The MPC substantial step test simplifies matters by providing an understandable and easily
applied test for attempt. The MPC states that to constitute an attempt, an act must be a clear step
toward the commission of a crime. This step is not required to come close to the completion of the
crime itself. The MPC does state that the act must be “strongly corroborative of the actor’s criminal
purpose.” The focus is on the acts already taken by the defendant toward the commission of the
crime. The code offers a number of factual examples:
•• Lying in wait, searching for, or following the contemplated victim of a crime

•• Enticing the victim of the crime to go to the place contemplated for its commission
•• Surveillance of the site of the contemplated crime
•• Unlawful entry of a building or vehicle that is the site of the contemplated crime
•• Possession of materials specifically designed for the commission of a crime
•• Soliciting an individual to engage in conduct constituting a crime
The MPC substantial step analysis concentrates on asking whether an individual has taken affir-
mative acts toward the completion of a crime that, in combination with other evidence, indicates
a defendant possesses a criminal intent. These steps are not required to be physically proximate or
close to the offense, and there is no firm distinction between preparation and perpetration of a
crime. The concern is with detaining dangerous persons rather than with delaying an arrest until
an individual comes close to committing a dangerous act.
Some courts continue to require an act that comes dangerously close to success and continue
to require a physical proximity to the completion of the crime. In the well-known case of People v.
Rizzo, the three defendants were driving along the route regularly traveled by an individual who
was responsible for depositing business receipts at the bank. A New York court held that the “line
has been drawn between those acts which are remote and those which are proximate and near
to the consummation. . . . The act or acts must come . . . very near to the accomplishment of the
intended crime.” The defendants possessed the intent to rob the employee, although they did not
commit an act that was sufficiently proximate to a robbery. The question remains, how close to
the completion of the robbery would be required to find the defendants guilty of an attempt?12
The Physical Proximity and Substantial Step Tests

You are likely understandably confused by the broad and uncertain nature of the law of attempt.
Keep in mind that the fundamental question is whether the law of attempt should be concerned
with a defendant’s intent or with the proximity of his or her acts to the completion of a crime.
An illustration of the difference between the substantial step test and the physical proximity
test is Commonwealth v. Gilliam. Gilliam was a prisoner at the Dallas State Correctional Institution,
and correctional officers discovered that the bars on the window in his cell had been cut and were
being held in place by sticks and paper. A search of the cell revealed vise grips concealed inside
Gilliam’s mattress, and two knotted extension cords attached to a hook were found in a box of
clothing. The vise grips were sufficiently strong to cut through the barbed wire along the top of the
fence surrounding the prison compound, and the extension cords presumably were to be used to
scale the surrounding penitentiary wall. A Pennsylvania superior court ruled that Gilliam’s sawing
through the bars and gathering of tools indicated a clear intent to escape from prison and consti-
tuted a substantial step under the MPC. The court, however, noted that these same acts would not
constitute an attempt under a test that required that an act come close to the completion of the
crime, because a number of additional steps were required to escape from the prison.13
A number of states avoid the complexities of attempt by providing that preparation for spe-
cific offenses constitutes a crime. For instance, California Penal Code Section 466 provides the
following:
Every person having upon him or her in his or her possession a picklock, crowbar,
keybit, . . . or other instrument or tool with intent feloniously to break or enter into any
building . . . is guilty of misdemeanor.14
You Decide 5.1 Kerry Van Bell was convicted undercover officer exited Van Bell’s car, she signaled to
of attempted rape of a child. The nearby police officers who arrested Van Bell as his vehi-
defendant was contacted by a cle began to pull out of his parking spot and turn toward
police undercover agent who the exit of the parking lot, in the direction of Elm Park.
stated that she had a foster child The court stated that in determining whether a defen-
who was available for sexual relations for money. Bell dant is guilty of an attempt in Massachusetts “we look
met with the undercover officer and expressed unhappi- to the actions left to be taken, or the ‘distance or gap
ness that the child was not with the undercover agent. between the defendant’s actions and the (unachieved)
They negotiated a price for intercourse with the four- goal of the consummated crime—the distance must be
year-old foster child. Bell nodded his head at the price of relatively short, the gap narrow, if the defendant is to be
$200 and agreed to follow the undercover officer to Elm held guilty of a criminal attempt.’” Was Van Bell guilty of
Street by Elm Park roughly one mile away where the attempted rape of a child? See Commonwealth v. Kerry
agent represented that the child was located. As the Van Bell, 917, N.E.2d 740 (Sup. Jud. Ct. Mass. 2009).
IMPOSSIBILITY
Consider whether the following defendants should be held liable for an attempted offense.
•• A pickpocket reaches into your pocket, only to find that there is no wallet.
•• An individual hands $100 to a seller in an effort to purchase narcotics and is arrested by the
police before the seller is able to hand over what is later revealed to be baking powder.
•• A doctor begins to perform an illegal abortion on a woman who is, in fact, a government
Read Bolton v.
undercover agent who is not pregnant.
State and Young
•• In an attempt to kill a romantic rival, an individual enters the rival’s bedroom and shoots v. State on the
into the bed, not realizing that it is empty. study site: study
•• A male forces himself on a sleeping female with the belief that she did not consent and then .sagepub.com/
discovers that the victim died of a heart attack an hour prior. lippmaness2e.
In each instance, the defendant possessed an intent to commit a crime that was factually impossible
to complete. The perpetrators would have successfully completed the offenses had the facts been as
the individuals “believed them to be” (i.e., there was a wallet in the pocket, the seller possessed drugs,
the woman was pregnant, the romantic rival was in his or her bed, and the potential victim was alive).
A factual impossibility is not a defense to an attempt to commit a crime. This is based on
the fact that an offender who possesses a criminal intent and who takes steps to commit an offense
should not be free from legal guilt. The factual circumstance that prevents an individual from actu-
ally completing the offense is referred to in some state statutes as an extraneous factor, or an
event outside of an individual’s control.
Factual impossibility should be distinguished from legal impossibility, which is recognized
as a defense. Legal impossibility arises when an individual mistakenly believes that he or she is
acting illegally. An example is taking a tax deduction that an individual believes is illegal but that,
in fact, is perfectly permissible. A group of eighteen-year-old college freshmen will not be guilty of
an attempt in the event that they go to a bar and order beers while mistakenly believing that the
drinking age is twenty-one. As Professor Jerome Hall notes, it is not a crime to throw a Kansas steak
into the garbage, and an individual who makes an effort to toss the steak into the garbage is not
guilty of an attempted offense. The individual attempting to discard the steak possesses a criminal
intent to violate a nonexistent law. Our old friend the principle of legality prohibits punishing an
individual for a crime that is the product of his or her imagination.15
The rule is that a mistake concerning the facts is not a defense; a mistake concerning the law is
a defense. Ask yourself whether the individual charged with an attempt was mistaken concerning
the facts or mistaken concerning the law.
We also should refer to the defense of inherent impossibility. This occurs in those rare situ-
ations in which a defendant could not possibly achieve the desired result. The example that is cited
is an individual who sticks pins in a voodoo doll and is acquitted of attempted murder. The reason
is that the individual’s act of sticking pins in the voodoo doll is so unlikely to result in death that
it would be unfair to hold him or her criminally liable.16 Is there a social benefit in punishing an
individual who possesses a criminal intent to kill and who commits an inherently impossible act?
The MPC does not recognize the defense of factual impossibility under any circumstances. The
code provides a “safety valve” in Section 5.05(2) by providing that an act should be treated as a
minor offense in those instances in which neither the offender nor his or her conduct presents a
serious threat to the public. A Colorado statute provides that neither factual nor legal impossibility
is a defense “if the offense would have [been] committed had the attendant circumstances been as
the actor believed them to be.”17
In State v. Damms, the defendant put a gun to the head of his wife, from whom he was sep-
arated, and pulled the trigger. He exclaimed, “It won’t fire. It won’t fire.” Police officers immedi-
ately arrested Damms and found that the weapon was unloaded. Damms told the officers that he
thought that the gun was loaded. The Wisconsin Supreme Court affirmed Damms’s conviction for
attempted murder.18
In State v. Glass, the Ada County, Idaho, Sheriff’s Office conducted an “online crimes” inves-
tigation directed against Internet chat rooms. The Sheriff’s office created a profile for a fictional
fourteen-year-old female with the screen name BBG14. BBG14 received an instant message from
Glass, who was using the screen name “s3x-slave_for_u.” Glass described in “graphic detail” the
sex acts that he would like to perform with BBG14, arranged to meet her, and was arrested when
he appeared, with a box of condoms, at the place that they arranged to meet. An Idaho appellate
court “held that impossibility is not a recognized defense to attempt crimes in the State of Idaho. In
determining that Idaho’s attempt statute . . . does not allow for an impossibility defense, we stated
that the statute provides no exception for those who intend to commit a crime but fail because they
were unaware of some fact that would have prevented them from completing the intended crime.”19
People v. Dlugash, decided by the New York Court of Appeals in 1977, is a well-known example
of factual impossibility. A fight developed, and Bush shot Geller three times, killing Geller. Dlugash
then approached the body and shot Geller five times in the head. The New York court determined
that Dlugash believed at the time he fired his pistol that Geller was alive. As a prosecutor, would
you charge Dlugash with attempted murder? Should we judge the dangerousness of Dlugash’s acts
by his intent or by the actual facts? What if Dlugash arrived following Bush’s shooting of Geller
and believed that Geller was lying wounded in bed and proceeded to shoot into the bed, only to
discover that he shot a large toy bear?20 Would you charge Dlugash with attempted murder?
You Decide 5.2 Francisco Martin Duran was a who strongly resembled then-president Bill Clinton. Two
twenty-six-year-old upholsterer eighth-grade students remarked that Basso looked like
from Colorado. On September 13, Bill Clinton. Duran almost immediately began firing
1994, Duran bought an assault twenty rounds at Basso, who managed to take cover.
rifle and roughly one hundred Duran was tackled by a pedestrian when attempting
rounds of ammunition. Two days later, he purchased a to reload a second clip. The Secret Service searched
thirty-round clip and equipped the rifle with a folding Duran’s automobile and found incriminating evidence,
stock. Thirteen days later, Duran bought a shotgun and, including a map with the phrase “kill the Pres!” and an
the following day, additional ammunition. On September “X” drawn across a photo of President Clinton. A sub-
30, 1993, Duran left work and, without contacting his sequent search of Duran’s home led to the seizure of
family or employer, began a journey to Washington, D.C. other incriminating evidence, including a business card
He purchased another thirty-round clip and a large coat on the back of which Duran called for the killing of all
in Virginia. On October 10, Duran arrived in Washington, government officers and department heads.
D.C., and he stayed in various hotels over the next nine- Was Duran guilty of an attempt to kill the presi-
teen days. dent of the United States, despite the fact that this was
On October 29, 1994, Duran positioned himself impossible given that President Clinton was not on the
outside the White House fence and observed a group lawn of the White House? See United States v. Duran,
of men in dark suits, one of whom was Dennis Basso, 96 F.3d 1495 (D.C. Cir. 1996).
ABANDONMENT
An individual who abandons an attempt to commit a crime based on the intervention of outside
or extraneous factors remains criminally liable. On the other hand, what about an individual who
voluntarily abandons his or her criminal scheme after completing an attempt?
In People v. Staples, Staples intentionally rented an office above a bank.21 He learned that no
one was in the building on Saturday and received permission from the owner to move items into
his office over the weekend. Staples took advantage of the fact that no one was in the building and
drilled several holes partway through the floor, which he then covered with a rug. He placed the
drilling tools in the closet and left the key in the office. Later, the landlord discovered the holes
and notified the police. Staples was arrested and confessed, explaining that he abandoned his crim-
inal plan after realizing that he could not enjoy life while living off stolen money.
Is Staples guilty of an attempt? Assuming that Staples committed an attempted burglary (break-
ing and entering with an intent to steal), does the defendant’s change of heart or abandonment
constitute a defense? Would it make a difference if the defendant changed his mind only after
hearing voices in the bank?
The MPC, in Section 5.01(4), recognizes the affirmative defense of abandonment in those
instances in which an individual committed an attempt and “abandoned his effort . . . under
circumstances manifesting a complete and voluntary manifestation of criminal purpose.” The
important point is that an individual can commit an attempt and then relieve himself or herself
from liability by voluntarily abandoning the criminal enterprise. A renunciation is not voluntary
when motivated by a desire to avoid apprehension, provoked by the realization that the crime is
too difficult to accomplish, or where the offender decides to postpone the crime or to focus on
another victim. For example, abandonment has not been recognized as a defense where the lock
on a bank vault or the door on a cash register proved difficult to open, the police arrived during the
commission of a crime, or a victim broke free and fled. Once having completed the commission of
a crime, the fact that an offender is full of regret and rushes the victim to the hospital also does not
free the assailant from criminal liability. Abandonment, in short, is a defense to attempt when an
individual freely and voluntarily undergoes a change of heart and abandons the criminal activity.22
In some cases, courts have continued to hold that once an attempt is complete, an individ-
ual cannot avoid criminal liability. Why should an attempt be treated differently than any other
crime? The vast majority of decisions recognize that there are good reasons for recognizing the
defense of abandonment, even in cases where the individual’s acts are “dangerously close” to the
completion of a crime.23
•• Lack of Purpose. An individual who abandons a criminal enterprise lacks a firm commitment
to complete the crime and should be permitted to avoid punishment.
•• Incentive to Renounce Crime. The defense of abandonment provides an incentive for individ-
uals to renounce their criminal conduct before completing the crime.
You Decide 5.3 Dorothy Henley was alone in She testified that “I started crying and talking about
her trailer when a stranger, my daughter, that I was all she had because her daddy
Sammy Joe Ross, knocked on the was dead, and he said if I had a little girl he wouldn’t
door to ask for directions. Henley do anything, for me just to go outside and turn my
suggested that Ross consult a back.” Ross told Henley to walk outside behind the
neighbor. When she turned her back, Ross pointed a trailer. Ross then told her to keep her back to the road
handgun at her, ordered her into the house, told her to until he left. Ross later was arrested, and he claimed
undress, and pushed her onto the couch. Ross, at one that he should be acquitted because he had aban-
point, threatened to kill her; and Henley described her- doned the attempted rape. Did Ross abandon the
self as frightened and crying. Henley told Ross that attempted rape of Henley? See Ross v. State, 601
her daughter would be home from school at any time. So.2d 872 (Miss. 1992).
SOLICITATION
Solicitation is defined as commanding, hiring, or encouraging another person to commit a
Read Le Barron crime. The crime was largely unknown until the prosecution of the 1801 English case of Rex v.
v. State on the Higgins, in which Higgins was convicted of unsuccessfully soliciting a servant to steal his master’s
study site: study goods. A number of states do not have solicitation statutes and continue to apply the common law
.sagepub.com/ of solicitation. States with modern statutory schemes have adopted various approaches. Some pun-
lippmaness2e.
ish solicitation of all crimes, and others limit solicitation to felonies, particular felonies, or certain
classes of felonies. Solicitation generally results in a punishment slightly less severe or equivalent
to the punishment that is usual for the crime solicited.24
We all read about the greedy spouse who approaches a contract killer to murder his or her
partner in order to collect insurance money. The act of proposing the killing of a spouse with the
intent that the murder be carried out constitutes solicitation. Solicitation is a form of accomplice
liability; and in the event that the spouse is murdered, both the greedy spouse and contract killer
are guilty of homicide. In the event the assassination proves unsuccessful, both the greedy spouse
and inaccurate assassin are guilty of attempted murder. An agreement between the two that leads
to an overt act that is not carried out results in liability for a conspiracy. The contract killer, of
course, may refuse to become involved with the greedy spouse. Nevertheless, the spouse is guilty
of solicitation; the crime of solicitation is complete when a spouse attempts to hire the killer. Keep
in mind that in contrast to solicitation, an attempt requires a substantial act toward the commis-
sion of a crime, and solicitation involves a communication directed to another individual. “The
solicitation of another, assuming neither the solicitor nor solicitee . . . acts towards the crime’s
commission, cannot be held for an attempt.”25
Public Policy
Solicitation remains a controversial crime; this accounts for the fact that some states have not yet
enacted solicitation statutes. The thinking is that there is no necessity for the crime of solicitation.
Solicitation, it is argued, is not a threat to society until steps are taken to carry out the scheme.
At this point, the agreement can be punished as a conspiracy. A solicitor depends on the efforts
of others, and simply approaching another person to commit a crime does not present a social
danger. There is also the risk that individuals will be convicted based on a false accusation or as a
result of a casual remark. Lastly, punishing individuals for solicitation interferes with freedom of
speech. As observed by a nineteenth-century court, holding every individual who “nods or winks”
to a married person on the sidewalk “indictable for soliciting to adultery . . . would be a dangerous
and difficult rule of criminal law to administer.”26
On the other hand, there are convincing reasons for punishing solicitation:
•• Cooperation Among Criminals. Individuals typically encourage and support one another,
which creates a strong likelihood that the crime will be committed.
•• Social Danger. An individual who is sufficiently motivated to enlist the efforts of a skilled
professional criminal clearly poses a continuing social danger.
•• Intervention. Solicitation permits the police to intervene before a crime is fully implemented.
The police should not be placed in the position of having to wait for an offense to occur
before arresting individuals intent on committing a crime.
States typically protect individuals against wrongful convictions by requiring corroboration

or additional evidence to support a charge of solicitation. This might involve an e-mail, a voice
recording, or witnesses who overheard the conversation. As for the First Amendment, society pos-
sesses a substantial interest in prohibiting acts such as the solicitation of adolescents by adults for
sexual activity on computer chat rooms that more than justifies any possible interference with
individual self-expression.27
The Crime of Solicitation

Solicitation involves a written or spoken statement in which an individual intentionally advises,
requests, counsels, commands, hires, encourages, or incites another person to commit a crime
with the purpose that the other person commit the crime. You are not liable for a comment that is
intended as a joke or uttered out of momentary frustration.
The mens rea of solicitation requires a specific intent or purpose that another individual com-
mit a crime. You would not be liable in the event that you humorously advise a friend to “blow
up” the expensive car of a neighbor who regularly parks in your friend’s parking space. On the
other hand, you might harbor a long-standing grudge against the neighbor and genuinely intend
to persuade your friend to destroy the automobile.
The actus reus of solicitation requires an effort to get another person to commit a crime. A vari-
ety of terms are used to describe the required act, including command, encourage, and request. The
crime of solicitation occurs the moment an individual urges, asks, or encourages another to com-
mit a crime with the requisite intent. The individual is guilty of solicitation even in those instances
in which the other person rejects the offer or accepts the offer and does not commit the crime.
There are four important points on actus reus:
1. The crime is complete the moment the statement requesting another to commit a crime is
made. This is the case despite the fact that an additional step, such as a phone call or the
payment of money, is required to trigger the crime.
2. A statement justifying or hoping that the neighbor’s automobile is damaged is not suffi-
cient. There must be an effort to get another person to commit the crime. A solicitation
may be direct or indirect. For instance, in cases involving the enticement of children into
sexual activity, courts will consider a defendant’s use of suggestive and seductive remarks
and materials.
3. The MPC provides that an individual is guilty of solicitation even in instances in which
a letter asking others to commit a crime is intercepted by prison authorities and does not
reach gang members outside of prison. States that do not follow the MPC require that the
solicitation actually is received by the intended recipient.
4. The MPC provides it is a defense to a charge of criminal solicitation that an individual
freely and voluntarily renounced his or her criminal purpose and prevented the commission
of the crime.
In State v. Cotton, Cotton was arrested and charged with criminal sexual penetration of a
minor and criminal sexual contact with a minor. The defendant, while in jail awaiting trial,
wrote his wife in Indiana and requested that she persuade his stepdaughter whom he was
accused of molesting not to testify against him. He also asked his wife to convince his step-
daughter to leave New Mexico and to return to Indiana so that she would be unavailable to tes-
tify against Cotton in the New Mexico trial. Cotton sealed the letter in an envelope and asked
his cellmate Dobbs to obtain a stamp. Dobbs, unknown to Cotton, removed the letter from the
envelope and replaced it with a blank sheet of paper, returned the sealed stamped envelope to
Cotton, and gave the original letter to law enforcement authorities. Several days later, Cotton
wrote another letter to his wife, which ultimately was handed over to law enforcement authori-
ties. The New Mexico Supreme Court overturned Cotton’s conviction of two counts of criminal
solicitation for the bribery and intimidation of a witness on the grounds that New Mexico did
not follow the MPC and required that solicitation should be communicated to the intended
party. Do you favor the approach of New Mexico or the approach of the MPC toward criminal
solicitation?28
Model Penal Code

Section 5.02. Criminal Solicitation
(1) . . . A person is guilty of solicitation to commit a crime if with the purpose of promoting
or facilitating its commission he commands, encourages or requests another person to
engage in specific conduct that would constitute such crime or an attempt to commit such
crime or would establish his complicity in its commission or attempted commission.
(2) . . . It is immaterial . . . that the actor fails to communicate with the person he solicits to
commit a crime if his conduct was designed to effect such communication.
(3) . . . It is an affirmative defense that the actor, after soliciting another person to commit a
crime, persuaded him not to do so or otherwise prevented the commission of the crime,
under circumstances manifesting a complete and voluntary renunciation of his criminal
purpose.
Analysis
1. Solicitation for a felony or misdemeanor is a crime. This also includes solicitation for an
attempt and aiding and abetting.
2. An individual is guilty of solicitation even in those instances that the solicitation is not
communicated.
3. The defense of renunciation is recognized in those instances that the other person is per-
suaded not to commit or prevented from committing the offense.
The Legal Equation

Solicitation = Intent or purpose for another person to commit a crime (felony)
+ ords, written statements, or actions inviting, requesting, or urging

w
another to commit a crime.
You Decide 5.4 Cassandra Y. informed Lou before she have the baby on Aug. ’98.” Vicki Lawrence,
Tong Saephanh, a California a correctional officer, opened and read the letter. The
inmate, that she was pregnant letter was embargoed by prison authorities and was
with his child. Saephanh was not sent to the addressee. Saephanh later explained
excited to be a father, and they that if Cassandra did not let him be a part of the
talked about the baby every week. Roughly six months baby’s life, he wanted to “get rid of the baby” and did
later, Saephanh wrote a letter to fellow gang member not want to pay child support. Is Saephanh guilty of
Cheng Saechao: “By the way loc, could you & the solicitation? The California solicitation statute reads:
homies do me a big favor & take care that white bitch, “Every person who, with the intent that the crime be
Cassie for me. ha, ha, ha!! Cuzz, it’s too late to have committed, solicits another to commit or join in the
abortion so I think a miss carrage would do just fine. I commission of murder shall be punished by imprison-
aint fista pay child sport for this bull-shit loc. You think ment.” See People v. Saephanh, 80 Cal. App. 4th 451
you can get the homies or home girls do that for me (Cal. Ct. App. 2000).

In 2014, FBI Director James Comey pronounced that intent of marrying an ISIS member. Earlier in the year,
the recruitment of potential homegrown terrorists in Mohammed Khan, a Chicago teenager, was arrested
the United States by the Islamic State (ISIS) takes before boarding a plane to the Middle East. These
place “24 hours a day” in “all fifty states.” He stated recruits not only bolster ISIS ranks overseas; they pose
that the challenge was to “stop them [these recruits] a potential threat when they return to the United States
from acting” against the United States. According to and Europe and are able to blend into these countries
CIA estimates, roughly two thousand Westerners have without raising suspicion. Most of the terrorists respon-
traveled to Iraq and Syria (most via Turkey) to join sible for attacking sites in Paris in 2015 and in Belgium
ISIS. More than one hundred of these individuals are in 2016 had been trained by ISIS in Syria.
from the United States, five hundred from the United Mufid Elfgeeh, a Yemen-born manager of a pizza
Kingdom, and more than seven hundred from France. restaurant in Rochester, New York, was charged with
An additional 150 Americans have attempted to travel recruiting members to ISIS. In announcing Elfgeeh’s
to Syria, and each day more and more Westerners are arrest, U.S. Attorney General Eric Holder proclaimed
drawn to ISIS. that “[w]e are focused on breaking up these activities
This recruitment of young people to join ISIS con- on the front end, before supporters of ISI[S] can make
stitutes a crime under U.S. law, and individuals who good on plans to travel to the region or recruit sympa-
recruit fighters for ISIS as well as the combatants thizers to this cause.”
themselves are criminally liable for providing “mate- Commentators speculate that ISIS offers a sense
rial support” to a terrorist organization (discussed of family and emotional support to the teenagers
in Chapter 14). The recruiters, however, are difficult looking for purpose, meaning, self-esteem, and heroic
to apprehend because their communications invari- adventure. ISIS recruits young people on social media
ably are encrypted and they typically are outside the with sophisticated appeals and videos. The terrorist
United States and beyond the reach of American law organization’s violent tactics provide the organization
enforcement. with an aura of strength and defiance that attracts
In October 2014, three American teenage girls young people who may feel isolated, alienated, and
from Colorado of Somali and Sudanese descent, age alone. Many of these American young people are from
sixteen, seventeen, and eighteen, stole their passports families that emigrated from the Middle East or that
and $2,000 in cash from their parents and boarded converted to Islam, and ISIS appeals to their sense of
a flight to Germany where they were arrested by the obligation to protect the Muslim faith from what ISIS
FBI. In April 2014, Shannon Conley, a nineteen-year- portrays as an onslaught by the United States and
old convert, was arrested at Denver International Europe. Most of the individuals who have volunteered
Airport attempting to board a flight to Turkey with the for ISIS lack a detailed knowledge of Islam and are
susceptible to ISIS’s distorted view of their religious “rock star” who is notorious for his online “prank”
obligations. This support for ISIS often seems particu- of superimposing the black flag of ISIS onto the flag-
larly baffling because young women are drawn to ISIS pole atop the White House and heralding the group’s
despite the group’s repressive treatment of women. “upcoming conquest of the Americas.” His Twitter
In another case, Ali Shukri Amin, a seven- account attracted thousands of followers including
teen-year-old from Manassas, Virginia, pled guilty and jihadists across the Middle East, and he posted more
was sentenced to eleven years in prison, a $100,000 than seven thousand positive tweets about ISIS includ-
fine, and federal supervision for the rest of his life, ing instructions on how to use Bitcoin to send money
including monitoring of his Internet activities, for pro- to ISIS.
viding material support to ISIS and its radical agenda. Why did these individuals, most of whom were
Amin was an honors student who at one time was financially well-off young people with the promise of
in a program for gifted students and had been accepted educational opportunity and a successful career, turn
to college. He was transformed by a recruiter from to ISIS? Should these young people be sentenced to
a small, shy, and sickly young person into a jihadist federal prison?
CONSPIRACY
The crime of conspiracy comprises an agreement between two or more persons to commit a
criminal act. There are several reasons for punishing an agreement:
•• Intervention. Protecting society involves arresting individuals before they commit a danger-
ous crime.
•• Group Activity. Crimes committed by groups have a greater potential to cause social harm.
•• Deterrence. Group pressure makes it unlikely that the conspirators will be deterred from car-
rying out the agreement.
The common law crime of conspiracy was complete with the agreement to commit a crime. The
Florida conspiracy statute, along with roughly half of the state statutes, provides that a “person who
agrees, conspires, combines, or confederates with another person or persons to commit any offense
commits the offense of criminal conspiracy.”29 Other state statutes, including California and New
York along with the federal conspiracy statute, require an overt act, however slight, toward carrying
out the conspiracy. The Illinois conspiracy statute states that “[a] person commits conspiracy when,
with intent that an offense be committed, he agrees with another to the commission of that offense.
No person may be convicted of conspiracy to commit an offense unless an act in furtherance of such
agreement is alleged and proved to have been committed by him or by a coconspirator.”30
A substantial
step. An overt act may be committed by any party to the conspiracy and is not required to be a
criminal act; and any act in furtherance of the conspiracy, no matter how insignificant, is suffi-
cient to satisfy the overt act requirement. This may involve purchasing masks to be used in a bank
robbery or visiting the bank to evaluate the risks involved in the robbery. The important point is
that the law of conspiracy permits law enforcement to arrest individuals at an early stage of crimi-
nal planning. The overt act requirement provides assurance that the conspirators are serious about
implementing their criminal agreement.
Keep in mind that in common law, the conspiracy did not merge into the criminal act. Today,
this continues to be the rule; conspiracy does not merge into the attempted or completed offense that
is the object of conspiracy. As a result, an individual may be convicted both of the substantive offense that
is the object of the conspiracy and of a conspiracy. A defendant may be held liable both for armed robbery and
for a conspiracy to commit armed robbery. The MPC adopts the position that an individual may not be
sentenced both for conspiracy and for criminal acts completed or attempted that are the object of the
conspiracy. The MPC explains that conspiracy is punished to deter individuals from joining together
to commit a crime and that once the crime occurs, there is no reason to punish the conspiracy.
State statutes differ on the punishment of a conspiracy. Some provide that a conspiracy is a
misdemeanor, others that the sentence for conspiracy is the same as the target offense, and a third
group of statutes provides a different sentence for conspiracies to commit a misdemeanor and for
conspiracies to commit a felony. In general, a conspiracy to commit a felony is a felony; a conspiracy to
commit a misdemeanor is a misdemeanor.31
The law of conspiracy is one of the most difficult areas of the criminal law to understand. As
former Supreme Court justice Robert Jackson observed, “The modern crime of conspiracy is so
vague that it almost defies definition.”32
Actus Reus
The actus reus of conspiracy consists of
•• entering into an agreement to commit a crime, and,

•• under some modern statutes, an overt act in furtherance of the agreement is required.
The core of a conspiracy charge is an agreement. Individuals do not normally enter into a
formal and open contractual agreement to commit a crime. Prosecutors typically are forced to
point to circumstances that strongly indicate that the defendants agreed to commit a crime. In
Commonwealth v. Azim, Charles Azim pulled his automobile over to the curb, and one of the pas-
sengers, Thomas Robinson, called to a nearby Temple University student. The student refused to
respond, and Robinson and Mylice James exited the auto, beat and choked him, and took his wal-
let. The three then drove away from the area. The Pennsylvania Superior Court, in affirming Azim’s
conviction for conspiracy, pointed to Azim’s association with the two assailants, his presence at the
crime scene, and Azim’s waiting in the automobile with the engine running and lights on as the
student was beaten. The case for conspiracy would have been even stronger had this been part of a
pattern of criminal activity or if there was evidence that the three divided the money.33
United States v. Brown is often cited to illustrate the danger that courts will find a conspiracy
based on even the slightest evidence suggesting that the defendants cooperated with one another.
An undercover officer approached Valentine on the street seeking to purchase marijuana. Brown
joined the conversation and advised Valentine three times that the officer “looks okay to me.”
Brown told Valentine that there was no reason to distrust the customer or to take precautions and
persuaded Valentine to personally hand the drugs over to the undercover agent. The federal Court
of Appeals concluded that the facts indicated that Brown had agreed with Valentine to direct or
advise Valentine on drug sales. Judge Oakes observed in dissent that there was not a “shred of evi-
dence” that Brown was involved with Valentine and that when “numerous other inferences could
be drawn from the few words of conversation . . . I cannot believe that there is proof of conspiracy . . .
beyond a reasonable doubt.” Judge Oakes asked, “What conspiracies might we approve tomorrow?
The majority opinion will come back to haunt us, I fear.”34
Overt Act
Under the common law, an agreement was sufficient to satisfy the elements of a conspiracy.
Roughly half of the states and the federal statute now require proof of an overt act in further-
ance of the conspiracy. The overt act requirement is satisfied by even an insignificant act that is
far removed from the commission of a crime. As observed by Justice Oliver Wendell Holmes Jr.,
“The essence of the conspiracy is being combined for an unlawful purpose—and if an overt act
is required, it does not matter how remote the act may be from accomplishing the purpose, if
done to effect it.”35 Attending a meeting of the Communist Party was considered to constitute
an overt act in furtherance of a Communist conspiracy to overthrow the U.S. government,36
and purchasing large quantities of dynamite satisfied the overt act requirement for a conspiracy
to blow up a school building.37 In other cases, the overt act has been satisfied by observing the
movements of an intended kidnapping victim or by purchasing stamps to send poison through
the mail.38
An overt act by any party to a conspiracy is attributed to every member and provides a suffi-
cient basis for prosecuting all the participants. The requirement of an overt act is intended to limit
conspiracy prosecutions to agreements that have progressed beyond the stage of discussion and
that therefore present a social danger.39
Mens Rea
The mens rea of conspiracy is the intent to achieve the object of the agreement. Some judges con-
tinue to express uncertainty over whether this requires a purpose to cause the result or whether it
is sufficient that an individual knows that a result will occur. Under the knowledge standard, all
that is required is that the seller be aware of a buyer’s “intended illegal use.” A purpose standard
requires that the seller possess an intent to further, promote, and cooperate in the buyer’s specific
illegal objective.
A knowledge standard may deter individuals from providing assistance to individuals who
they are aware or suspect are engaged in illegal activity. On the other hand, limiting liability to
individuals with a criminal purpose targets individuals who intend to further criminal conduct.40
The MPC reflects the predominant view that a specific intent to further the object of the con-
spiracy is required. In United States v. Falcone, the U.S. Supreme Court ruled that individuals who
provided large quantities of sugar, yeast, and cans to individuals who they knew were engaged in
illegally manufacturing alcohol were not liable for conspiracy. The court held that the government
was required to demonstrate that the suppliers intended to promote the illegal enterprise.41
In People v. Lauria, a California appellate court was confronted with the challenge of deter-
mining whether the operator of a telephone message service was merely providing a service to his
clients knowing that they were prostitutes or whether he conspired to further acts of prostitution.
The court rejected the prosecution’s claim that Lauria’s knowledge that three of the customers
were prostitutes satisfied the mental element required to hold Lauria liable for conspiring to com-
mit prostitution. The court ruled that the prosecution must demonstrate that Lauria possessed an
intent to further a criminal enterprise and that there was insufficient evidence that “Lauria took
any direct action to further, encourage or direct . . . call-girl activities.”42
The California court provided some direction to prosecutors in future cases by observing that
Lauria’s intent to further prostitution might be established by evidence that he promoted and
encouraged the prostitutes’ pursuit of customers or received substantial financial benefits from
their activities. It was significant that only a small portion of Lauria’s business was derived from
the prostitutes and that he received the same fee regardless of the number of messages left for his
prostitute customers.
The Pinkerton doctrine provides that an individual is guilty of all criminal acts committed
by one of the conspirators in furtherance of the conspiracy, regardless of whether the individual
aided or abetted or was even aware of the offense. The court cautioned that the conspirators may
not be liable for acts that are not the reasonably foreseeable acts.43 This Pinkerton doctrine has been
viewed by the MPC44 and by some courts as contrary to the notion that an individual is account-
able for his or her own actions and should not be held liable for the acts of another.45
Parties
A conviction for conspiracy requires that two or more persons intentionally enter into an agree-
ment with the intent to achieve the crime that is the objective of the conspiracy. This is referred
to as the plurality requirement. As noted by former Supreme Court justice Benjamin Cardozo,
“It is impossible . . . for a man to conspire with himself.”46
This joint or bilateral conception of conspiracy means that a charge of conspiracy against
one conspirator will fail in the event that the other party to the conspiracy lacked the required
mens rea. A conspirator in a two-person conspiracy, for example, would be automatically acquitted
in the event that the other party was an undercover police officer or was legally insane and was
legally incapable of entering into an agreement. In a joint trial of two conspirators at common law,
the acquittal of one alleged conspirator resulted in the dismissal of the charges against the other
conspirator. Keep in mind that under the bilateral approach, “[t]here must be at least two guilty
conspirators or none.”47
The MPC adopts a unilateral approach that examines whether a single individual agreed
to enter into a conspiracy rather than focusing on whether two or more persons entered into an
agreement. This scheme has been incorporated into a number of modern state statutes. Under the
unilateral approach, the fact that one party is an undercover police officer or lacks the capacity to
enter into a conspiracy does not result in the acquittal of the other conspirator. The commentary
to the MPC notes that under the unilateral approach, it is “immaterial to the guilt of a conspira-
tor . . . that the person or all of the persons with whom he conspired have not been or cannot be
convicted.”48
The unilateral approach has been criticized for permitting the prosecution of individuals for a
conspiracy who, in fact, have not actually entered into a criminal agreement. The fear is expressed
by civil libertarians that the unilateral approach enables undercover agents to manufacture crime
by enticing individuals into unilateral conspiratorial agreements.49
The Structure of Conspiracies

The structure of a conspiracy is important. Defendants may be found guilty only of the conspiracy
charged at trial and may offer the defense that there were separate agreements to commit different
crimes rather than a single conspiracy. A defendant might admit that he or she was involved in
a conspiracy to kidnap and hold a corporate executive for ransom and also argue that the other
kidnappers entered into a separate conspiracy to kill the executive. Remember, in the event of a
single conspiracy, our kidnapper would be held liable for all offenses committed in furtherance of
the agreement to kidnap the executive, including the murder.50
Most complex conspiracies can be categorized as either a chain conspiracy or wheel conspiracy.
A chain conspiracy typically arises in the distribution of narcotics and other contraband.
This involves communication and cooperation by individuals linked together in a vertical chain
to achieve a criminal objective.
The classic case is United States v. Bruno, in which eighty-eight defendants were indicted for a
conspiracy to import, sell, and possess narcotics. This involved smugglers who brought narcotics
into New York and sold them to middlemen who distributed the narcotics to retailers who, in
turn, sold narcotics to operatives in Texas and Louisiana for distribution to addicts. The petitioners
appealed on the grounds that there were three conspiracies rather than one large conspiracy. The
court ruled that this was a single chain conspiracy in which the smugglers knew that the middle-
men must sell to retailers for distribution to addicts, and the retailers knew that the middlemen
must purchase drugs from smugglers. In the words of the court, the “conspirators at one end of
the chain knew that the unlawful business would not, and could not, stop with their buyers; and
those at the other end knew that it had not begun with their sellers.” Each member of the conspir-
acy knew “that the success of that part with which he was immediately concerned, was dependent
upon the success of the whole.” Remember that this means that every member of the conspiracy
was liable for every illegal transaction carried out by his co-conspirators in Texas and in Louisiana.51
A circle or wheel conspiracy involves a single person or group that serves as a hub, or com-
mon core, connecting various independent individuals or spokes. The spokes typically interact
with the hub rather than with one another. In the event that the spokes share a common purpose
to succeed, there is a single conspiracy. On the other hand, in those instances that each spoke is
unconcerned with the success of the other spokes, there are multiple conspiracies.
The most frequently cited case illustrating a wheel conspiracy is Kotteakos v. United States.
Simon Brown, the hub, assisted thirty-one independent individuals to obtain separate fraudu-
lent loans from the government. The Supreme Court held that although all the defendants were
engaged in the same type of illegal activity, there was no common purpose or overall plan, and
the defendants were not liable for involvement in a single conspiracy. Each loan “was an end in
itself, separate from all others, although all were alike in having similar illegal objects. Except for
Brown, the common figure, no conspirator was interested in whether any loan except his own
went through.” As a result, the Supreme Court found that there were thirty-two separate conspir-
acies involving Brown rather than one common conspiracy. Defendants only were liable for the
conspiracy in which they were involved.52
Criminal Objectives
The crime of conspiracy traditionally punished agreements to commit a broad range of objectives,
many of which would not be criminal if committed by a single individual. The thinking was that
these acts assume an added danger when engaged in by a group of individuals.
In 1832, English jurist Lord Denman pronounced that a conspiracy indictment must “charge a
conspiracy either to do an unlawful act or a lawful act by unlawful means.”53 English and American
courts interpret “unlawful” to include acts that are not punishable under the criminal law. It was
“enough if they are corrupt, dishonest, fraudulent, immoral, and in that sense illegal, and it is in
the combination to make use of such practices that the dangers of this offense consist.”54
The U.S. Supreme Court has recognized the danger that broadly defined conspiracy statutes
may fail to inform citizens of the acts that are prohibited and may provide the police, prosecutors,
and judges with broad discretion in bringing charges. The doctrine of conspiracy, for instance, was
used against workers who went on strike in protest against a fellow employee who agreed to work
below union wages.55 The English House of Lords upheld the conviction of an individual for “con-
spiracy to corrupt public morals” who agreed to publish a directory of prostitutes.56 In ruling that
a Utah conspiracy statute that punished conspiracies to commit acts injurious to the public morals
was unconstitutional, the U.S. Supreme Court noted that the statute
would seem to be a warrant for conviction for an agreement to do almost any act which a
judge and jury might find . . . contrary to his or its notions of what was good for health,
morals, trade, commerce, justice or order.57
Modern statutes generally limit the criminal objectives of conspiracy to agreements to com-
mit crimes. Several jurisdictions, however, continue to enforce broadly drafted statutes. California
Penal Code Sections 182–185(5) punish a conspiracy to commit “any act injurious to the public
health, to public morals, or to pervert or obstruct justice, or the due administration of justice.”
The U.S. government’s conspiracy statute broadly punishes persons conspiring either to “commit
any offense against the United States, or to defraud the United States.” A conspiracy to commit a
felony under this statute is punishable by up to five years in prison in addition to a fine, while
a conspiracy to commit a misdemeanor is subject to the maximum penalty for the target offense.58
Pinkerton v. United States established that all criminal acts undertaken in furtherance of a con-
spiracy or that are “reasonably foreseeable as the necessary or natural consequences of the con-
spiracy” are attributable to each member by virtue of his or her membership. In Pinkerton, Daniel
Pinkerton was held liable for conspiring with his brother Walter to avoid federal taxes. Daniel was
held criminally responsible for Walter’s failure to pay taxes, despite the fact that Daniel was in
prison at the time that Walter submitted his fraudulent tax return. The MPC rejects the Pinkerton
rule, because each conspirator may be held liable for “thousands of crimes” of which he or she
was “completely unaware” and did not “influence at all.” Consider the often-cited example of a
woman who refers individuals to a criminal abortionist who may find herself being held liable for
unlawful abortions performed on women referred to the abortionist by a co-conspirator whom she
has never met.59
You also should be aware of Wharton's rule. This provides that an agreement by two per-
sons to commit a crime that requires the voluntary and cooperative action of two persons cannot
constitute a conspiracy. The classic examples of consensual crimes that require the participation
of two individuals and do not permit a charge of conspiracy under Wharton’s rule are adultery,
bigamy, the sale of contraband, bribery, and dueling. These offenses already punish a cooperative
agreement between two individuals to commit a crime, and there is no reason to further punish
individuals for entering into a conspiratorial agreement. Wharton’s rule does not prevent a con-
spiracy involving more than the required number of individuals. Three individuals, for example,
may conspire for two of them to engage in bribery. Two individuals may also conspire for other
individuals to pay and receive bribes.60
Another principle is the Gebardi rule. This provides that an individual who is in a class of
persons who are excluded from criminal liability under a statute may not be charged with a con-
spiracy to violate the same law. In Gebardi v. United States, the U.S. Supreme Court reversed the
conspiracy conviction of a man and woman for violation of the Mann Act. This statute prohibited
and punished the transportation of a woman from one state to another for immoral purposes. The
Court reasoned that the statute was intended to protect women from sexual exploitation and was
defined so as to punish solely the individual transporting the women. The Court therefore reasoned
that the two defendants could not enter into a criminal conspiracy and reversed their conviction.61
Conspiracy Prosecutions
Judge Learned Hand called conspiracy the “darling of the modern prosecutor’s nursery.”62 Judge
Hand was referring to the fact that conspiracy constitutes a powerful and potential tool for prose-
cuting and punishing defendants.63
•• Conspiracies are not typically based on explicit agreements and may be established by
demonstrating a commitment to a common goal by individuals sharing a criminal objective.
•• Defendants may be prosecuted for both conspiracy and the commission of the crime that
was the object of the conspiracy.
•• A prosecution may be brought in any jurisdiction in which the defendants entered into a
conspiratorial agreement or committed an overt act.
•• The defendants all may be joined in a single trial, creating the potential for “guilt by
association.”
•• All conspirators are held responsible for the criminal acts and statements of any co-conspir-
ator in furtherance of the conspiracy. An individual may be held liable who is not present or
even aware of a co-conspirator’s actions.
•• Individuals may abandon the conspiracy and escape liability for future offenses only if this
abandonment is communicated to the other conspirators. Some statutes require that indi-
viduals persuade the other conspirators to abandon the conspiracy.
The federal law of conspiracy was further expanded in 1970 when Congress passed the
Racketeer Influenced and Corrupt Organizations Act (RICO). This law is intended to provide
prosecutors with a powerful and potent weapon against organized crime. The RICO law essen-
tially eliminates the need to prove that individuals are part of a single conspiracy and, instead,
holds defendants responsible for all acts of racketeering undertaken as part of an “enterprise.”
Racketeering includes a range of state and federal offenses typically committed by organized crime
including murder, kidnapping, gambling, arson, robbery, bribery, extortion, and dealing in nar- Read United States
cotics or obscene material. Critics have voiced concern over the government’s power to bring a v. Garcia on the
counterfeiter to trial for murders committed by individuals involved in an unrelated component study site: study
of a criminal enterprise.64 .sagepub.com/
lippmaness2e.
Model Penal Code

Section 5.03. Criminal Conspiracy
(1) . . . A person is guilty of conspiracy with another person or persons to commit a crime if
with the purpose of promoting or facilitating its commission he:
(a) agrees with such other person or persons that they or one or more of them will engage
in conduct that constitutes such crime or an attempt or solicitation to commit such
crime; or
(b) agrees to aid such other person or persons in the planning or commission of such
crime or of an attempt or solicitation to commit such crime. . . .
(2) . . . If a person guilty of conspiracy . . . knows that a person with whom he conspires to
commit a crime has conspired with another person or persons to commit the same crime,
he is guilty of conspiring with such other person or persons, whether or not he knows
their identity, to commit such crime.
(3) . . . If a person conspires to commit a number of crimes, he is guilty of only one conspiracy
so long as such multiple crimes are the object of the same agreement or continuous con-
spiratorial relationship.
(4) . . .
(a) . . . two or more persons charged with criminal conspiracy may be prosecuted
jointly. . . .
(6) [Withdrawal is a defense where the individual] thwarted the success of the conspiracy,
under circumstances manifesting a complete and voluntary renunciation of his criminal
purpose.
(7) [A withdrawal occurs] only if and when he advises those with whom he conspired of his
abandonment or he informs the law enforcement authorities of the existence of the con-
spiracy and of his participation therein.
Analysis
1. The MPC limits conspiracies to crimes and does not extend conspiracy to broad categories
of immoral or corrupt behavior.
2. A defendant must possess the purpose of promoting or facilitating the commission of a
crime. Knowledge does not satisfy the intent requirement of conspiracy (§5.04(1)).
3. The essence of a conspiracy is an agreement. This determination should be based on clear
evidence (§5.04(1)(a)).
4. A unilateral approach to conspiratorial agreements is adopted (§5.04(1)(b)).
5. The MPC does not use the terminology of wheel or chain conspiracies. The code, instead,
examines whether a specific individual has entered into a conspiratorial agreement and
whether the individual is aware that the person with whom he or she has conspired has
entered into agreements with other individuals. The end result would not differ from the
wheel or chain analysis (§5.04(2)).
6. An overt act is required other than in the case of serious felonies.
7. The Pinkerton rule is rejected (§2.06); individuals are responsible only for crimes that they
solicited, aided, agreed to aid, or attempted to aid.
8. Conspiracy is punished to the same extent as the most serious offense that is attempted
or solicited or is an object of the conspiracy (§5.05(1)).
9. The code does not permit punishment of both a conspiracy and the substantive crime that
is the object of the conspiracy (§1.07)(1)(b).
10. The Gebardi rule is incorporated into the MPC (§5.04(2)).
The Legal Equation

Conspiracy = Agreement (or agreement and overt act in furtherance of agreement)
+ pecific intent or purpose to commit a crime. (Some courts employ

s
a knowledge standard.)

In May 2015, a violent confrontation in Waco, Texas, arson. OMGs according to the DOJ collect $1 billion a
between members of two competing outlaw motorcy- year from their illicit activities.
cle gangs (OMGs) left nine dead and eighteen injured The FBI’s 2011 National Gang Threat Assessment
and led to the arrest of 171 individuals charged with estimated that there are forty-four thousand members
organized criminal activity. The arrests also led to the of OMGs affiliated with roughly three thousand active
seizure of over one hundred firearms and highlighted gangs. These gang members amount to 2.5 percent
the criminal activity of motorcycle gangs. Several hun- of all gang members in the United States. The mem-
dred chains, brass knuckles, knives, and clubs also bership of the most influential gangs ranges from 250
were seized by the police. to 900, and the gangs tend to be dominant in specific
The U.S. Department of Justice (DOJ) describes areas of the country.
OMGs as organizations whose membership “uses The FBI and the Criminal Intelligence Service
their motorcycle clubs as conduits for criminal enter- Canada have named four motorcycle clubs as “outlaw
prises.” The clubs according to the federal government motorcycle gangs.” The co-called “Big Four” gangs
are involved in manufacturing, smuggling, and distrib- are the Hells Angels, the Pagans, the Outlaws, and
uting unlawful narcotics and in kidnapping, extortion, the Bandidos. The California Attorney General also
insurance fraud, prostitution, gun smuggling, and includes the Mongols and the Vagabonds as important
OMGs. Two other gangs, the Sons of Silence and the across the globe. OMGs continue to maim and murder
Cossacks, also are categorized by some law enforce- over territory.” The report concluded that as “tensions
ment agencies as outlaw gangs. The OMGs are aligned [between OMGs] escalate, brazen shootings are occur-
in coalitions with one another and are in conflict with ring in broad daylight.”
other gang coalitions over the control of criminal activ- The shoot-out in Waco allegedly was precipitated
ity within various states and regions. One of the most by the Bandidos Motorcycle Club claim that they were
infamous conflicts was the so-called “Quebec Biker entitled to determine whether the Cossacks and other
War” in 2002 between Canadian biker gangs that Texas motorcycle clubs were free to wear jackets
resulted in over 150 murders, eighty-four bombings, (“colors”) decorated with patches on their back with
and 130 instances of arson. a “bottom rocker” that read “Texas,” indicating that
The federal government has engaged in several Texas was the geographic home territory of the club.
mass arrests of the members of OMGs. In 1985, There had been several confrontations between mem-
Operation Roughrider resulted in the arrest of over bers of the Bandidos and Cossacks dating back to
125 individuals, most of whom were members of the November 2013.
Hells Angels motorcycle club in eleven states. The raid The May 2015 confrontation between the Bandi-
resulted in the seizure of unlawful narcotics with a dos and Cossacks occurred at a regularly scheduled
street value of roughly $2 million. meeting of the Texas Confederation of Clubs and Inde-
Biker gangs are decentralized and according to pendents, a statewide organization that advocates for
gang analysts are based on “amoral individualism” in the rights of motorcyclists. The Bandidos reportedly
which members are free to pursue their own criminal had decided to mount a display of dominant force
plans. As a result, law-abiding club members often that symbolically proclaimed that Waco was a Bandi-
claim that the motorcycle club with which they are affil- dos town in which the Cossacks were unwelcome. The
iated does not sponsor illicit activity and may justifiably Cossacks, although not a part of the Confederation,
contend that their club is being unfairly labeled as a decided to attend the meeting to make it clear that
criminal organization. Motorcycle gang members who the Cossacks were entitled to ride their motorcycles
engage in criminal activity refer to themselves as “one in Waco. A shoot-out erupted over a dispute about a
percenters” based on a statement by the American parking spot and escalated into a large-scale confron-
Motorcycle Association that 99 percent of bikers follow tation. Individuals arrested initially were held at $1 mil-
the law. lion bail, which later was reduced to $25,000. Defense
In 2015, the Bureau of Alcohol, Tobacco, Firearms attorneys alleged that most of the gunfire and fatali-
and Explosives in a report leaked to the press warned ties resulted from the police rather than bikers. As a
that “insatiable appetite for dominance [of OMGs] prosecutor, would you charge members of OMGs with
has led to shootings, assaults and malicious attacks conspiracy or a violation of RICO?
CASE ANALYSIS
In People v. Johnson, an Illinois appellate court was asked to determine whether the defendant was
guilty of attempted arson.
Was Johnson Guilty of Attempted Arson?
People v. Johnson, 429 N.E.2d 905 (Ill. App. 1981)
Lee W. Johnson was convicted of attempted aggravated he took a substantial step toward the crime or that he
arson and resisting a peace officer after a jury trial in had the necessary specific intent to commit aggravated
Kankakee County. He was sentenced to 10 years on the arson.
“attempt” charge and one year on the “resisting an The unusual events involved in this case began on
officer” charge. The defendant . . . contends on appeal November 29, 1980, in Kankakee. Sometime between
that his attempt aggravated arson conviction should 2:30 and 3:30 p.m. on that day, two Kankakee police
be reversed because the evidence did not establish that officers were dispatched to a house. . . . The defendant
(Continued)
(Continued)
Lee Johnson had called the police for the purpose of performed acts which brought him in dangerous
having them help him recover a gun that was within proximity to success in committing aggravated arson.
the house. . . . When the officers . . . arrived, Johnson He had threatened to burn the house down. He had
was standing in front of the house. He told them that purchased gasoline, carried it to the house and began
he had lived in the house with his former girlfriend, pouring it beside the foundation of the wood frame
Glenda Pankey, and that he had left a gun with her, structure. He ceased his activities only when the
which she was refusing to return. The officers, accom- police officer drove up in front of the house. The only
panied by Johnson, proceeded onto the front porch and remaining step to be taken to complete the arson
Officer Born then knocked on the door. Pankey eventu- was the igniting of the gasoline. It is not necessary to
ally answered, and let Born in the house. When inside, prove that the defendant took the last step immedi-
he noticed that there were another woman and several ately preceding that which would render the substan-
children present. While Born was inside, Johnson could tive crime complete. Under the circumstances, we find
be heard speaking loudly on the front porch to Officer that the evidence was sufficient for the jury to con-
Osenga. Johnson was upset, repeating that he wanted clude that the defendant had taken a substantial step
his gun and that it was in the house. Osenga at the time toward committing aggravated arson. Each case must
requested to see Johnson’s owner “I.D.” card, which he be decided on its own facts. That he was later found
produced, along with a receipt for the gun. The officer to be without an ignition source does not alter our
then told Johnson that they could not search the house conclusion. The record does not indicate, nor will we
for the gun. The defendant responded, “If I don’t get presume, that Johnson knew that he was without an
this gun back, I will burn this m-----f---ing house down.” ignition source. It is as consistent with the evidence to
Officer Born came out of the house several minutes conclude that he mistakenly believed that he did have
later, telling Johnson that Pankey claimed not to have an ignition source. We would note that it is no defense
the gun, but also offered to bring it to the police station to an attempt charge that because of a misapprehen-
when she did. With this, Johnson became even more sion of circumstances it would have been impossible
upset and again threatened to burn the house. Born went for him to commit the substantive offense.
back into the house, only to return again with another of As for a criminal intent, there is no indication that
Pankey’s denials. Johnson became further agitated and he knew he was without matches or a lighter and the
continued to spout his threats. . . . [A]fter the warning, evidence is as consistent with a mistaken belief conclu-
Johnson left the house, and he walked . . . to his own res- sion. However, despite the evidence indicating intent,
idence, about a half a block away. The two police officers, there is other evidence supporting a conclusion that he
meanwhile, pulled into a lot, a block away . . . Within did not have the intent. It was he who called the police
minutes, they observed Johnson . . . carrying a gasoline to the dispute in the first place. While he made threats
can. He walked to the . . . service station . . . put some to burn the house, he did so in the presence of the offi-
gas in the can, paid for it and then headed back down cers and in a loud enough voice so that Pankey would
Rosewood [to] Pankey’s house. Osenga saw Johnson take hear him. Though it was mid-afternoon, he marched
two or three steps on the south side of the house while openly to his house, from there proceeding to the gas
pouring gasoline. Johnson was about a foot away from station, while the squad cars waited in the lot across the
the house, which had a 1 1/2- to 2-foot concrete foun- street from the service station. He then marched openly
dation, and Osenga could not tell if the gas was hitting to Pankey’s house and poured an amount of gasoline
the ground or the house. The ground was snow-covered on the ground next to the house. The house, a wooden
grass and earth. It was a cold and damp day. frame structure, had a concrete foundation. The ground
When Johnson noticed Officer Osenga, he was wet, covered with melting snow. Additionally,
stopped pouring the gasoline and started to walk away there was the fact that no ignition source was found
from the house, still carrying the can. . . . Osenga, on the defendant’s person. Certainly, this evidence was
after subduing Johnson with the help of another offi- consistent with the defense version of the incident,
cer who arrived at the scene, then retrieved the gas that the defendant’s only intent was to frighten Pankey
can, which was half full. The other officer then went into returning his gun. It is consistent with the defense
to Glenda Pankey’s residence, where he was given the position that the defendant had no intent to start the
defendant’s rifle by a woman there. Pankey informed fire that afternoon. Essentially, the record in this case
the officer at that time that the gun had been there, presents a close factual question on the question of the
as Johnson had indicated, since the previous night. At defendant’s intent. The evidence could support a jury’s
the police station, a search of Johnson revealed that he conclusion either way on that issue. While we may not
had no matches, no lighter, and nothing else which have reached the same result, the jury’s conclusion that
could serve as an ignition source. the defendant possessed the requisite intent is sup-
In the instant case, we find that the evidence ported in the evidence. The evidence, however close,
is sufficient to establish that the defendant had was sufficient to uphold the jury’s verdicts.
CHAPTER SUMMARY
Attempt, solicitation, and conspiracy are inchoate Legal impossibility arises in those instances in which
crimes or offenses that punish the beginning steps an individual wrongly believes that he or she is vio-
toward a crime. All require a mens rea involving a spe- lating the law. Inherent impossibility arises where an
cific intent or purpose to achieve a crime as well as individual undertakes an act that could not possibly
an actus reus that entails an affirmative act toward the result in a crime.
commission of a crime. Each of these offenses is sub- An individual may avoid criminal liability by
ject to the same or a lesser penalty than the crime that abandoning a criminal attempt under circumstances
is the criminal objective. manifesting a complete and voluntary renunciation of
An attempt involves three elements: a criminal purpose. Individuals abandoning a criminal
purpose based on the intervention of outside or extra-
1. an intent or purpose to commit the crime, neous factors remain criminally liable.
2. an act toward the commission of the crime, and Solicitation involves a written or spoken state-
ment in which an individual intentionally advises,
3. a failure to commit the crime. requests, counsels, commands, hires, encourages,
or incites another person to commit a crime with
A complete (but imperfect) attempt occurs when the purpose that the other individual commit the
a defendant takes every act required to complete the crime. A solicitation is complete the moment the
offense and fails to succeed in committing the crime. statement requesting another to commit a crime
An incomplete attempt arises when an individual is made. The solicitation need not be actually
abandons or is prevented from completing an attempt. communicated.
An individual must possess the intent to achieve Conspiracy comprises an agreement between two
a criminal objective. The Model Penal Code adopts a or more persons to commit a criminal act. Most mod-
substantial step test. This requires that an act must ern state statutes require an affirmative act in further-
strongly support an individual’s criminal purpose. ance of this criminal purpose. The common law crime
The approach of the MPC extends attempt to acts of conspiracy did not merge into the completed crim-
that might be considered mere preparation under the inal act. Today an individual also may be convicted
objective approach. Among the acts that constitute an both of the substantive offense that is the object of the
attempt under the substantial step test and that are conspiracy and of the conspiracy itself.
considered “strongly corroborative of an actor’s crim- The centerpiece of a charge of conspiracy is an
inal purpose” are agreement. There is rarely proof of a formal agree-
ment, and an agreement typically must be established
•• lying in wait, by examining the relationship, conduct, and circum-
•• enticing of a victim to go to the place contem- stances of the parties. The overt act requirement is
plated for the commission of a crime, satisfied by even an insignificant act in furtherance
•• surveying a site contemplated for the commis- of a conspiracy. The mens rea of conspiracy is the
sion of a crime, intent or purpose that the object of the agreement is
•• unlawful entry of a structure or vehicle in which accomplished.
a crime is contemplated, The conspirators are liable for all criminal actions
•• possession of materials to be employed in the taken in furtherance of a conspiracy. Most complex
commission of a crime, and conspiracies can be categorized as either a wheel con-
•• soliciting an individual to engage in conduct spiracy or a chain conspiracy. A chain conspiracy
constituting an element of a crime. entails communication and cooperation by individu-
als linked together in a vertical relationship to achieve
A factual impossibility does not constitute a a criminal objective. A wheel conspiracy involves a
defense to an attempt to commit a crime. This is single person or group that serves as a hub that pro-
based on the reasoning that the offender has demon- vides a common core connecting various independent
strated a dangerous criminal intent and a determina- individuals or spokes.
tion to commit an offense. The factual circumstance A conspiracy charge provides prosecutors with
that prevents an individual from actually completing various advantages, such as joining the conspirators
the offense is referred to in some state statutes as an in a single trial and bringing the charges in any juris-
extraneous factor. This should be distinguished from diction in which an agreement or act in furtherance of
a legal impossibility that is recognized as a defense. the conspiracy is committed.
1. What are the mens rea and actus reus of inchoate 10. Why do some states require an overt act for a
crimes? conspiracy?
2. Distinguish the three categories of inchoate 11. Is there a difference between the bilateral and uni-
crimes. lateral approaches to a conspiratorial agreement?
3. Provide an example of each crime. 12. Distinguish between the wheel and chain
4. Compare the subjective and objective approaches approaches to conspiracy. Explain why defen-
to criminal attempts. dants may argue that there are multiple conspira-
cies rather than a single conspiracy.
5. How does the Model Penal Code substantial step
test differ from the test of physical proximity to 13. How does a charge of conspiracy assist a prosecu-
attempts? What types of acts satisfy the substan- tor in convicting a defendant?
tial step test? 14. Why did Congress adopt the RICO statute?
6. Discuss and distinguish between legal and factual 15. What are the mens rea and actus reus of solicitation?
impossibility.
16. At what point is the crime of solicitation com-
7. Why is there a defense of abandonment for plete? Is a solicitation required to reach the indi-
attempts? What are the legal elements of this vidual to whom it is directed?
defense?
17. How does society benefit by punishing inchoate
8. What are the reasons for punishing conspiracy?
crimes? Would society suffer in the event that
9. Discuss the mens rea and actus reus of conspiracy. these offenses did not exist?
LEGAL TERMINOLOGY
abandonment factual impossibility Pinkerton doctrine

attempt Gebardi rule plurality requirement
bilateral inchoate crimes preparation
chain conspiracy incomplete attempt solicitation
complete attempt inherent impossibility substantial step test
conspiracy legal impossibility unilateral
criminal attempt overt act Wharton’s rule
extraneous factor physical proximity test wheel conspiracy

CRIMINAL DEFENSES
6 Justifications and Excuses
Will Belton be successful in relying on Learning Objectives

the necessity defense?
1. Understand the presumption of innocence.
Calloway soon turned his aggression toward Belton and
began directing insults at her. When Belton indicated that 2. Appreciate the distinction between justifica-
she might leave Calloway if he did not calm down, Calloway tions and excuses.
threatened to “whoop [Belton’s] a[--].” Calloway repeated
his threat to assault Belton numerous times. Belton 3. Know the tests for the insanity defense and the
feared that Calloway would follow through on his threat to significance of “guilty but mentally ill” and of
assault her because he had previously done so on at least “diminished capacity.”
two separate occasions. Belton feared “that it would be
worse” on “that particular night” because Calloway “was 4. Know the relationship between age and the
on drugs.” Based on Calloway’s demeanor, Belton “knew” capacity to form a criminal intent and the factors
that Calloway would assault her that night if she stayed. that a court will consider in determining whether
Calloway . . . exited the vehicle without explanation and a juvenile is capable of forming a criminal intent.
went back inside the home. Fearing for her safety, Belton
took advantage of the opportunity by sliding over and into 5. List and explain the elements of self-defense.
the driver’s seat and driving away. Belton, who was “in a
6. State the two tests for the defense of others.
neighborhood [she] didn’t know nothing about[,]” decided
to drive in the direction of 16th Street and Bellefontaine 7. Know the law on defense of the home and the
Street, where some of her family resided. significance of the “Castle Doctrine.”
After Belton had been driving for approximately seven
or eight blocks, or approximately one-half of a mile, 8. Understand the legal test for police use of
Indianapolis Metropolitan Police Officer Jason Ross initi- deadly force.
ated a traffic stop of the vehicle driven by Belton because
it appeared that the vehicle’s registration was expired. 9. Appreciate the distinction between the
During the traffic stop, Belton admitted that her driver’s American and European rules for resistance to
license was suspended and stated that she only drove an unlawful arrest.
because of her need to remove herself from the situation
10. Understand the elements of the necessity
involving Calloway. (Belton v. State, 6 N.E.3d 1043 [Ind.
App. 2014]) defense.
In this chapter, learn about the necessity defense. 11. Know the three situations in which the law recog-
nizes consent as a defense to criminal conduct.
12. Understand the “new defenses” and the argu-

ments for recognizing “new defenses.”
113
INTRODUCTION
The Prosecutor’s Burden

The American legal system is based on the presumption of innocence. A defendant may not
be compelled to testify against himself or herself, and the prosecution is required as a matter of
the due process of law to establish every element of a crime beyond a reasonable doubt to prove
a defendant’s guilt. This heavy prosecutorial burden also reflects the fact that a criminal convic-
tion carries severe consequences and individuals should not be lightly deprived of their liberty.
Insisting on a high standard of guilt assures the public that innocents are not being falsely con-
victed and that individuals need not fear that they will suddenly be snatched off the streets and
falsely convicted and incarcerated.1
The prosecutor presents his or her witnesses in the case-in-chief. These witnesses are then
subject to cross-examination by the defense attorney. The defense also has the right to introduce
evidence challenging the prosecution’s case during the rebuttal stage at trial. A defendant, for
instance, may raise doubts about whether the prosecution has established that the defendant com-
mitted the crime beyond a reasonable doubt by presenting alibi witnesses.
A defendant is to be acquitted if the prosecution fails to establish each element of the offense
beyond a reasonable doubt. Judges have been reluctant to reduce the beyond a reasonable doubt
standard to a mathematical formula and stress that a “high level of probability” is required and
that jurors must reach a “state of near certitude” of guilt.2
The classic definition of reasonable doubt provides that the evidence “leaves the minds of
jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty
of the truth of the charge.”3
A defendant may present an alibi and claim that he or she did not commit the crime because
the defendant was somewhere else at the time the crime was committed. A defense attorney is
required to notify the prosecutor that the defendant will rely on the defense and provide the
names of the witnesses that will testify. The Supreme Court has held that fairness dictates that
the prosecutor disclose the witnesses that he or she plans to present to rebut the defendant’s alibi
defense.4
A defendant is entitled to file a motion for judgment of acquittal at the close of the prosecu-
tion’s case or prior to the submission of the case to the jury. This motion will be granted if the
judge determines that the evidence does not support any verdict other than acquittal, viewing the
evidence as favorably as possible for the prosecution. The judge, in the alternative, may adhere to
the standard procedure of submitting the case to the jury following the close of the evidence and
instructing the jurors to acquit if they have a reasonable doubt concerning one or more elements
of the offense.5
Affirmative Defenses
In addition to attempting to demonstrate that the prosecution’s case suffers from a failure of
proof beyond a reasonable doubt, defendants may present affirmative defenses, or defenses in
which the defendant typically possesses the burden of production as well as the burden of
persuasion.
Justifications and excuses are both affirmative defenses. The defendant possesses the bur-
den of producing “some evidence in support of his defense.” In most cases, the defendant then
also has the burden of persuasion by a preponderance of the evidence, which is a balance of proba-
bilities, or slightly more than 50 percent. In some jurisdictions, the prosecution retains the burden
of persuasion and is responsible for negating the defense by a reasonable doubt.6
Assigning the burden of production to the defendant is based on the fact that the prosecu-
tion cannot be expected to anticipate and rebut every possible defense that might be raised by a
defendant. The burden of rebutting every conceivable defense ranging from insanity and intoxi-
cation to self-defense would be overwhelmingly time-consuming and inefficient. Thus, it makes
sense to assign responsibility for raising a defense to the defendant. The U.S. Supreme Court has
issued a series of rather technical judgments on the allocation of the burden of persuasion. In the
last analysis, states are fairly free to place the burden of persuasion on either the defense or the
CHAPTER 6 Criminal Defenses 115
prosecution. As noted, in most instances, the prosecution has the burden of persuading the jury
beyond a reasonable doubt to reject the defense.
There are two types of affirmative defenses that may result in acquittal:
1. Justifications. These are defenses to otherwise criminal acts that society approves and
encourages under the circumstances. An example is self-defense.
2. Excuses. These are defenses to acts that deserve condemnation, but for which the defendant
is not held criminally liable because of a personal disability such as infancy or insanity.
Professors Singer and La Fond illustrate the difference between these concepts by noting that
justification involves illegally parking in front of a hospital in an effort to rush a sick infant into
the emergency room, and an excuse entails illegally parking in response to the delusional demand
of “Martian invaders.”7 In the words of Professor George Fletcher, “Justification speaks to the right-
ness of the act; an excuse, to whether the actor is [mentally] accountable for a concededly wrongful
act.”8
In the common law, there were important consequences resulting from a successful plea of
justification or excuse. A justification resulted in an acquittal, whereas an excuse provided a defen-
dant with the opportunity to request that the king exempt him or her from the death penalty.
Eventually there came to be little practical difference between being acquitted by reason of a jus-
tification or an excuse.9
Scholars continue to point to differences between categorizing an act as justified as opposed to
excused, but these have little practical significance for most defendants.
JUSTIFICATIONS AND EXCUSES

Defenses categorized as justifications typically include necessity, consent, self-defense, defense
of others, defense of habitation and property, execution of public duties, and resisting unlawful
arrest. There are various theories for the defense of justification, none of which fully account for
each and every justification defense.10
Moral Interest. An individual’s act is justified based on the protection of an important moral
interest. An example is self-defense and the preservation of an individual’s right to life.
Superior Interest. The interests being preserved outweigh the interests of the person who is
harmed. The necessity defense authorizes an individual to break the law to preserve a more
compelling value. An example might be the captain of a ship in a storm who throws luggage
overboard to lighten the load and preserve the lives of those on board.
Public Benefit. An individual’s act is justified on the grounds that it is undertaken in service of
the public good. This includes a law enforcement officer’s use of physical force against a fleeing
felon.
Moral Forfeiture. An individual perpetrating a crime has lost the right to claim legal protection.
This explains why a dangerous aggressor may justifiably be killed in self-defense.
A defendant who establishes a perfect defense is able to satisfy each and every element of a
justification defense and is acquitted. An imperfect defense arises in those instances in which
the requirements of the defense are not fully satisfied. For instance, a defendant may use exces-
sive force in self-defense or possess a genuine, but unreasonable, belief in the need to act in self-
defense. A defendant’s liability in these cases is typically reduced, for example, in the case of a
homicide to manslaughter and to a lower level of guilt in the case of other offenses.11
Excuses, in contrast, provide a defense based on the fact that although a defendant commit-
ted a criminal act, he or she is not considered responsible. The defendant claims that although “I
broke the law and my act was wrong, I am not responsible. I am not morally blameworthy.” This
is illustrated by legal insanity that excuses criminal liability based on a mental disease or defect.
Individuals are also excused due to youth or intoxication or in those instances when they lack a
criminal intent as a result of a mental disease or defect. Defendants are further excused in those
instances when they commit a criminal act in response to a threat of imminent harm or a mistake
of fact or are manipulated and entrapped into criminal conduct.
Excuses are very different from one another, and each requires separate study. The common
denominator of excuses is that the defendants are not morally blameworthy and therefore are
excused from criminal liability. The defenses categorized as excuses typically include the insanity,
intoxication, age, duress, mistake of law, mistake of fact, and entrapment.
The difference between justifications and excuses no longer has a great deal of importance. In
this chapter, defenses are divided into five categories.
1. Lack of Capacity. Individuals claim a lack of mental capacity to commit a crime (insanity,
intoxication, age).
2. Justification and Excuse Defenses. Individuals contend that under the circumstances, their
criminal act was justified or excused (necessity, duress, consent, mistake of law, mistake of
fact).
3. Defenses Justifying the Use of Force. Individuals confronting a threat to their person or prop-
erty who claim a right to resort to armed force (self-defense, defense of others, defense of
habitation and of property, resisting an arrest).
4. Governmental Misconduct. Individuals claiming a defense based on governmental miscon-
duct (entrapment, selective prosecution).
5. New Defenses. Defendants have attempted to persuade judges to accept previously unrecog-
nized defenses based on biology, psychology, and culture.
DEFENSES BASED ON A LACK OF

CAPACITY TO COMMIT A CRIME
A defendant invoking a defense based on a lack of capacity to commit a crime concedes that he
or she committed the required actus reus. The defendant, however, claims an inability to form the
mens rea for the crime. The three primary defenses based on a lack of capacity to commit a crime
are insanity, inebriation, and infancy.
The Insanity Defense

English common law initially did not consider a mental disturbance or insanity as relevant to an
individual’s guilt. In the thirteenth century, it was recognized that a murderer of “unsound mind”
was deserving of a royal pardon, and as the century drew to a close, “madness” was recognized as
a complete defense.12 This more humanistic approach reflected the regrettable “wild beast” theory
that portrayed “madmen” as barely removed from “the brutes who are without reason.”13
The insanity defense is one of the most thoroughly studied and hotly debated issues in
criminal law. The debate is not easy to follow because the law’s reliance on concepts drawn from
mental health makes this a difficult area to understand. Texas residents must have scratched their
heads in 2004 when Deanna Laney was acquitted by reason of insanity for crushing the skulls of
her three sons with heavy stones. She then proceeded to call the police and informed them that
“I just killed my boys.” The youngest at the time was a fourteen-month-old who was left brain
injured and nearly blind. Two years earlier, another Texas mother, Andrea Yates, received a life sen-
tence for drowning her five children in the bathtub. Yates told the police that the devil had told
her to kill her children; and despite Yates’s history of mental problems and claim of insanity, the
jury found that she was able to distinguish right from wrong. Yates’s conviction was overturned on
appeal, and in July 2006, a Texas jury ruled Yates not guilty by reason of insanity (NGRI). Laney
reportedly believed that she and Yates had been selected by God to be witnesses to the end of
the world.
In 2015, military veteran Eddie Ray Routh was convicted of the murder of famed Navy SEAL
Chris Kyle and Kyle’s friend Chad Littlefield. The jury rejected Routh’s insanity defense because
they determined that he knew the difference between right and wrong at the time of the murder.
The prosecution expert witnesses testified that Routh was an alcohol and drug abuser who feigned
post-traumatic stress disorder (PTSD) whenever he got in trouble with the law. He was sufficiently
coherent to stop at a fast-food restaurant following the killings.
Defendants who rely on the insanity defense are typically required to provide notice to the
prosecution. They are then subject to examination by a state-appointed mental health expert, and
they will usually hire one or more of their own “defense experts.” These experts will interview the
defendant and conduct various psychological tests. The prosecution and defense experts will then
testify at trial, and additional testimony is typically offered on behalf of the defendant by people
who are able to attest to his or her mental disturbance. The nature of a defendant’s criminal con-
duct is also important. The prosecutor may argue that a well-planned crime is inconsistent with a
claim of insanity. The jury is then asked to return a verdict of either guilty, not guilty, or NGRI. In
some jurisdictions, the jury considers the issue of insanity in a separate hearing in the event that
the defendant is found guilty.
A defendant found NGRI in some states is subject to immediate committal to a mental insti-
tution until he or she is determined to be sane and no longer poses a threat to society. In most
states, a separate civil commitment hearing is conducted to determine whether the defendant
poses a danger and should be interned in a mental institution. Keep in mind that this period of
institutionalization may last longer than a criminal sentence for the crime for which the defendant
was convicted.
Why do we have an insanity defense? Experts cite three reasons:
1. Free Will. The defendant did not make a deliberate decision to violate the law. His or her
criminal act resulted from a disability.
2. Theories of Punishment. A defendant who is unable to distinguish right from wrong or to
control his or her conduct cannot be deterred by criminal punishment, and it would be
cruel to seek retribution for acts that result from a disability.
3. Humanitarianism. An individual found NGRI may pose a continuing danger to society. He
or she is best incapacitated and treated by doctors in a noncriminal rather than criminal
environment.
In the United States, courts and legislators have struggled with balancing the protection of
society against the humane treatment of individuals determined to be NGRI. There have been
several tests for insanity:
•• M’Naghten (twenty-eight states and the federal government recognize all or a part of this
test)
•• Irresistible impulse (seventeen states recognize this test in conjunction with another test)
•• Durham product test (New Hampshire)
•• American Law Institute, Model Penal Code (MPC) standard (fourteen states)
The fundamental difference among these tests is whether the emphasis is placed on a defen-
dant’s ability to know right from wrong or whether the stress is placed on a defendant’s ability to
control his or her behavior. You might gain some sense of what is considered an inability to tell
right from wrong by considering a young child who has not been taught right from wrong and
takes an object from a store without realizing that this is improper. As an example of an inability
to control behavior, think about a motorist who suddenly erupts in “road rage” and violently
threatens you for driving too slowly.
Keep in mind that an individual who is “mentally challenged” may not necessarily meet the
legal standard for insanity. A serial killer, for instance, may be mentally disturbed but still not
considered to be so impaired by a mental illness or so retarded as to be considered legally insane.
The question is whether the individual was legally insane at the time that he or she committed
the crime. Juries generally find the determination of insanity to be highly complicated, and they
experience difficulty in following the often technical testimony of experts. As a result, jurors often
follow their own judgment in determining whether a defendant should be determined to be NGRI.
You also should be aware that insanity is distinct from competence to stand trial. Due pro-
cess of law requires that defendants should not be subjected to a criminal trial unless they possess
the ability to intelligently assist their attorney and to understand and follow the trial. The prosecution
of an individual who is found incompetent is suspended until he or she is found competent.
The Right–Wrong Test

Daniel M’Naghten was an ordinary English citizen who was convinced that British Prime Minister
Sir Robert Peel was conspiring to kill him. In 1843, M’Naghten retaliated by attempting to assassi-
nate the British leader and, instead, mistakenly killed Sir Robert’s private secretary. The jury acquit-
ted M’Naghten after finding that he “had not the use of his understanding, so as to know he was
doing a wrong or wicked act.” This verdict sent shock waves of fright through the British royal
family and political establishment, and the judges were summoned to defend the verdict before the
Parliament. The judges articulated a test that continues to be followed by a majority of American
states and by the federal government. The M’Naghten test requires that at the time of committing
the act, the party accused must have been suffering from such a defect of reason or a disease of the
mind that he or she “did not know what he [or she] was doing” (did not know the “nature and
quality of his or her act”); or the defendant “did not know he [or she] was doing wrong.”14
The requirement that the defendant did not know the “nature and quality of his or her act” is
extremely difficult to satisfy. The common example is that an individual squeezing the victim’s
neck must be so detached from reality that he or she believes that he or she is squeezing a lemon.
Individuals suffering this level of mental disturbance are extremely rare, and the M’Naghten test
assumes that these individuals should be detained and receive treatment and that criminal incar-
ceration serves no meaningful purpose and is inhumane.15
There also is an ongoing debate whether a defendant must know that an act is a “legal wrong”
or whether the defendant must know that the act is a “moral wrong.” State v. Crenshaw attempted to
resolve this conflict.16 The defendant Rodney Crenshaw was honeymooning with his wife in Canada
and suspected that she was unfaithful. Crenshaw beat his wife senseless, stabbed her twenty-four
times, and then decapitated the body with an axe. He then drove to a remote area and disposed of
his wife’s body and cleaned the hotel room. Crenshaw claimed to be a member of the Moscovite
faith, a religion that required a man to kill a wife guilty of adultery. He claimed he believed that his
act, although illegal, was morally justified. Was Crenshaw insane based on his belief that his act was
morally justified? Did he possess the capacity to distinguish between right and wrong?
Crenshaw was convicted and appealed on the grounds that the judge improperly instructed
the jury that insanity required a finding that as a result of a mental defect or disease, Crenshaw
believed that his act was lawful rather than moral. The Washington Supreme Court, however, con-
cluded that under either a legal or moral wrongfulness test, Crenshaw was legally sane. The court
noted that Crenshaw’s effort to conceal the crime indicated that he was aware that killing his wife
was contrary to society’s morals as well as the law. The Washington Supreme Court ruled that in
the future, courts should not define “wrongfulness,” and that jurors should be left free to apply
either a societal morality or legal wrongfulness approach.
It’s likely you are fairly confused at this point. The right–wrong test is clearly much too diffi-
cult to be easily applied by even the most educated and sophisticated juror. In the end, juries tend
to follow their commonsense notion of whether the defendant was legally sane or insane.
The Legal Equation

M’Naghten right–wrong test = Defect of reason from a disease of the mind
+ at the time of the act did not know
+ the nature and quality of the act or that the act

was wrong.
The Irresistible Impulse Test

The M’Naghten test is criticized for focusing on the mind and failing to consider emotions. Critics
point out that an individual may be capable of distinguishing between right and wrong and still
may be driven by emotions to steal or to kill. Many of us are aware of the dangers of smoking,
drinking, or eating too much and yet continue to indulge in this behavior. Various states responded
to this criticism by broadening the M’Naghten standard and adopting the irresistible impulse test.
This is often referred to as the “third branch of M’Naghten.”17
The irresistible impulse test requires the jury to find a defendant NGRI in the event that
the jurors find that the defendant possessed a mental disease that prevented him or her from curb-
ing his or her criminal conduct. A defendant may be found legally insane under this test despite the
fact that he or she is able to tell right from wrong. The central consideration is whether the disease
overcame his or her capacity to resist the impulse to kill, rape, maim, or commit any other crime.18
John Hinckley’s acquittal by reason of insanity for the attempted assassination of Ronald
Reagan sparked a reconsideration and rejection of the irresistible impulse test. After all, why should
Hinckley be ruled legally insane because he attempted to kill President Reagan to fulfill an uncon-
trollable impulse to attract the attention of Jodie Foster, a young female film star? There was also a
recognition that psychiatrists simply were unable to determine whether an individual experienced
an irresistible impulse.
As a result, several jurisdictions abolished the irresistible impulse defense.19 The U.S. Congress
adopted the so-called John Hinckley Amendment that eliminated the defense in federal trials and
adopted a strict M’Naghten standard.
The Legal Equation

Irresistible impulse test = ental disease or mental defect (psychosis or
M
physical defect)
+ inability to resist criminal activity (may have ability to

distinguish right from wrong).
The Durham Product Test

The Durham product test was intended to simplify the determination of legal insanity by
eliminating much of the confusing terminology. The “product” test was first formulated by the
New Hampshire Supreme Court in State v. Pike in 1869.20 This standard was not accepted or even
considered by any other jurisdiction until it was adopted in 1954 by the U.S. Court of Appeals for
the District of Columbia.21
Durham provided that an accused is “not criminally responsible if his unlawful act was the
product of mental disease or mental defect.” Jurors were asked to evaluate whether the accused
was suffering from a disease or defective mental condition at the time he or she committed the
criminal act and whether the criminal act was the product of such mental abnormality. However,
the decision left the definition of a mental disease or defect undefined.
The Court of Appeals for the District of Columbia abandoned this experiment after eighteen
years, in 1972, after realizing that the “product test” had resulted in expert witnesses playing an
overly important role at trial in determining what qualified as a mental disease or defect.22
The Legal Equation

Durham product test = Unlawful act
+ product of disease or defect.
The Substantial Capacity Test

Psychiatric experts urged the American Law Institute (ALI) to incorporate the Durham product
test into the MPC. The ALI, instead, adopted a modified version of the M’Naghten and irresistible
impulse tests, known as the substantial capacity test. Section 4.01(1)(2) provides:
A person is not responsible for criminal conduct if at the time of such conduct as a result
of mental disease or defect he lacks substantial capacity either to appreciate the crimi-
nality [wrongfulness] of his conduct or to conform his conduct to the requirements of
law. . . . The terms “mental disease or defect” do not include an abnormality manifested
only by repeated criminal or otherwise antisocial conduct.
The ALI test modifies M’Naghten by providing that a defendant may lack a substantial capacity
to appreciate rather than know the criminality of his or her conduct. This is intended to highlight
that a defendant may be declared legally insane and still know that an act is wrong because he
or she still may not appreciate the full harm and impact of his or her criminal conduct. In other
words, a defendant may know that sexual molestation is wrong without appreciating the harm a
sexual attack causes to the victim.
The ALI’s more tolerant and broader view of legal insanity was adopted by a number of states
and by the federal judiciary. The test later was abandoned by all but a handful of state and federal
courts following Hinckley’s successful reliance on the insanity defense in his attempted assassina-
tion of President Reagan in 1981. The trend is to follow the lead of the U.S. Congress and to adopt
the standard articulated in the Insanity Defense Reform Act of 1984.
The Legal Equation

Substantial capacity test = Mental disease or defect
+ substantial incapacity
+ to appreciate criminality (wrongfulness) of an act or

to conform conduct to requirements of the law.
Federal Standard
The U.S. Congress in the Insanity Defense Reform Act of 1984 returned to the M’Naghten
standard and abandoned the volitional prong of the ALI test. The act states that in federal courts
[i]t is an affirmative defense to a prosecution under any federal statute that, at the time of
the commission of the acts constituting the offense, the defendant, as a result of a severe
mental disease or defect, was unable to appreciate the nature and quality or the wrong-
fulness of his acts. Mental disease or defect does not otherwise constitute a defense.23
In United States v. Duran, in 1996, the District of Columbia Court of Appeals applied this new
standard in upholding a jury’s rejection of the insanity defense of Francisco Martin Duran who had
attempted to assassinate President Bill Clinton.24
Burden of Proof
The defendant possesses the initial burden of going forward in every state. The defendant is presumed
sane until evidence is produced challenging this assumption. The defendant’s burden varies and
ranges from a “reasonable doubt” to “some evidence,” “slight evidence,” or a “scintilla of evidence.”25
The prosecution at this point in a number of states is required to establish the defendant’s
sanity beyond a reasonable doubt. In roughly half of the states, however, the defendant pos-
sesses the burden of proving his or her insanity by the civil standard of a preponderance of the
evidence. In the federal system and in a small number of states, the defendant has the burden of
establishing insanity by “clear and convincing evidence.” Clear and convincing evidence requires
the defendant to establish that it is “substantially more likely than not that it is true.” This is a
higher standard than a preponderance of the evidence and a slightly less demanding standard
than beyond a reasonable doubt, which is the test required for a criminal conviction. Although
placing this burden of proof on the defendant is controversial, the federal courts have held that
this is constitutional.26
The Future of the Insanity Defense

Defenders of the insanity defense point out that critics exaggerate the significance of the insanity
defense for the criminal justice system and that only a small number of deserving defendants are
evaluated as legally insane. Statistics indicate that the defense results in an acquittal by reason
of insanity in less than 1 percent of all criminal trials per year. This translates into an average of
thirty-three defendants. These individuals may also spend more time institutionalized in a mental
institution than they would serve were they criminally convicted.
Idaho, Montana, Kansas, and Utah have abolished the insanity defense and, instead, permit
defendants to introduce evidence of a mental disease or defect that resulted in a lack of criminal
intent. Idaho, for example, provides that a “[m]ental condition shall not be a defense to any
charge of criminal conduct.” Evidence of state of mind is admissible in Idaho to negate criminal
intent, and a judge who finds that a defendant convicted of a crime suffers from a mental condi-
tion requiring treatment shall incarcerate the defendant in a facility where he or she will receive
treatment. State supreme courts have ruled that the insanity defense is not fundamental to the
fairness of a trial and that the alternative of relying on evidence of a mental disease or defect to
negate criminal intent is consistent with due process. Defendants under this alternative approach,
however, continue to rely on experts and highly technical evidence.
Thirteen states have adopted a verdict of guilty but mentally ill (GBMI). Eleven of these
states continue to retain the insanity defense, and in these states jurors may select from among
four verdicts: guilty, not guilty, NGRI, and GBMI. A verdict of GBMI applies where the jury deter-
mines beyond a reasonable doubt that a defendant was mentally ill, but not legally insane, at the
time of his or her criminal act. The defendant receives the standard criminal sentence of confine-
ment and is provided with psychiatric care while interned. The intent is to provide jurors with an
alternative to the insanity defense that affords greater protection to the public.
The GBMI verdict has thus far not decreased findings of legal insanity. Nevertheless, advocates
of the insanity defense remain fearful that jurors will find the GBMI verdict more attractive than
verdicts of NGRI.
You Decide 6.1 Michael L. Moler was living claimed that “I did not mean to do it. She’s a witch. She
with Neil Wright and Neil’s mother turned into a witch.” Moler later told the police that
Nina Wright. Both Neil and Nina Nina’s hair had “stood straight up” and that Nina had
knew that Moler suffered from turned into a witch and that he had “twisted her head
schizophrenia, but both also around and killed her.” Despite testimony from Neil and
observed that Moler functioned normally on medication. Nina that Moler appeared normal both before and after
Nina’s mother Ethel Cummins moved into the house six the injection and testimony by the police that Moler
months before the tragic events described below. In the appeared normal following the killing, two mental health
morning, Moler was dropped off at a mental health facil- experts concluded that in their opinion at the time of the
ity where he received an injection of antipsychotic medi- killing Moler was unable to appreciate the wrongfulness
cation. Moler, Neil, and Cummins spent the afternoon of his acts. Moler was found guilty but mentally ill and
watching television. Neil and Nina left in the evening and sentenced to fifty-five years in prison. Do you agree with
upon returning home found the bloodied Cummins lying the verdict? See Moler v. State, 782 N.E.2d 454 (Ind. Ct.
on the floor. Moler was standing at the sink and pro- App. 2003).
Diminished Capacity
Diminished capacity is recognized in roughly fifteen states. This permits the admission of psy-
chiatric testimony to establish that a defendant suffers from a mental disturbance that diminishes
the defendant’s capacity to form the required criminal intent. The diminished capacity defense
merely recognizes that an individual has the right to demonstrate that he or she was incapable of
forming the intent required for the offense and should be held culpable for a lesser offense. This is
a compromise between finding an individual either NGRI or criminally liable. Some states confine
diminished capacity to intentional murder and provide that an accused may still be convicted of
second-degree murder or in some cases manslaughter, which does not require premeditation. Keep
in mind that this rarely is successfully invoked.27
The far-reaching implications of the diminished capacity defense became apparent when a San
Francisco jury convicted city official Dan White of manslaughter for the killings of his colleague
Harvey Milk and Mayor George Moscone. The defense argued that White’s depressions were exag-
gerated by junk food, which caused biochemical reactions in his brain, diminishing his capacity to
control his behavior and to form a specific intent to kill, and he was convicted of voluntary man-
slaughter rather than intentional murder. In reaction to this “Twinkie defense,” California voters
adopted a statute that provides that the “defense of diminished capacity is hereby abolished” and
shall not be admissible “to show or negate capacity to form the . . . intent . . . required for the
commission of the crime charged.” Evidence of diminished capacity or a mental disorder may be
considered in California at sentencing.28

In July 2012, James Holmes, twenty-seven, entered apprehended whether “any children had been killed.”
an Aurora, Colorado, movie theater showing the film Holmes also booby trapped his apartment in anticipa-
The Dark Knight. Holmes was equipped with protective tion that the police would enter the unit following the
gear and carried an AR-15, a shotgun, and two Glock attack and purchased the arms and material he used
pistols and opened fire on a crowd of midnight mov- in the attack with a credit card that his parents were
iegoers, killing twelve and wounding seventy. unable to access. On an AdultFriendFinder.com profile
Holmes had recently dropped out of the neurosci- several days before the shooting, he wrote, “Will you
ence doctoral program at the University of Colorado visit me in prison?”
because of a series of academic setbacks. He pled Holmes’s consciousness of guilt also allegedly
guilty by reason of insanity to 166 counts, including was illustrated by his belief that the FBI was following
twelve charges of first-degree murder. Colorado places him and fear that he would be arrested before he was
the burden of proof on the prosecution to prove the able to carry out his plan. He called a mental health
defendant does not “suffer from a mental disease or hotline moments before the attack “to see if I should
defect that rendered him incapable of distinguishing turn back or not” and hung up without talking to any-
from right and wrong.” one because he did not hear someone on the other
The prosecution alleged that Holmes had engaged end of the line.
in meticulous planning in carrying out the attack that Defense attorneys, on the other hand, stressed
was inconsistent with his claim of legal insanity. Holm- that Holmes’s notebook was full of a “whole lot of
es’s planning included purchasing guns, ammunition, crazy” and that he analyzed himself as suffering from
and military equipment; practicing at a firing range; a “broken mind.” They pointed to page after page in
and surveying the theater that was the scene of his which the word why appears in bold letters across the
attack. page.
The prosecution also pointed to Holmes’s per- The jury watched a video of Dr. William Reid, a
sonal diary in which he outlined a detailed plan for court-appointed psychiatrist, speaking to Holmes.
a “mass murder spree” and reflected on the time of Dr. Reid concluded that Holmes was fully capable of
day in which the attack would achieve the “maximum “forming the intent and knowing what he was doing
casualties.” At one point in the diary, Holmes rejected and the consequences of what he was doing.” Dr. Jef-
attacking an airport because there is too great a risk frey Metzner, a second court-appointed therapist, inter-
of being apprehended and his attack might be mis- viewed Holmes for twenty-five hours and agreed that
taken for terrorism. He instead settled on attacking the he was able to distinguish right from wrong.
movie theater at midnight because fewer police would In his videotaped interview with Dr. Reid, Holmes
be in the area and decided to lock the exit doors to testified that during the attack on the theater he wore
increase the number of casualties. headphones and turned up the music to drown out the
Holmes’s consciousness of the difference between screams. He stated that he expected to be killed, but
right and wrong according to the prosecution was accepted this fate was the price of completion of what
illustrated by his question to the police after being he termed “the mission.” Holmes explained that the
purpose of the killings was to increase his self-esteem eleven. Holmes according to Dr. Woodcock was in the
and that the wounded and dead were “collateral dam- grip of an uncontrollable psychotic compulsion to kill.
age.” He stated that following the shootings he felt According to Dr. Woodcock, Holmes transitioned from
“calm and collected” and “successful in the mission.” suicide to homicide following the end of his romantic
Dr. Jonathan Woodcock interviewed Holmes four relationship with a fellow graduate student.
days following the attack and concluded that he was The jury of nine women and three men found
legally insane. Woodcock testified that Holmes had a Holmes guilty on all 165 counts, although one juror
family history of mental illness, that as a child he was refused to endorse capital punishment, and as a
frightened of “Nail Ghosts” that would hammer on the result, Holmes was sentenced to life imprisonment.
walls at night, and that he had attempted suicide at age Would you have voted to sentence Holmes to death?
Intoxication
Voluntary Intoxication
Voluntary intoxication was not recognized as a defense under the early common law in
England. Lord Hale proclaimed that the intoxicated individual “shall have no privilege by this
voluntary contracted madness, but shall have the same judgment as if he were in his right senses.”
William Blackstone went beyond this neutral stance and urged that intoxication should be viewed
“as an aggravation of the offense, rather than as an excuse for any criminal behavior.” The com-
mon law rule was incorporated into American law. An 1847 textbook recorded that this was a
“long established maxim of judicial policy, from which perhaps a single dissenting voice cannot
be found.”29
The rule that intoxication was not a defense began to be transformed in the nineteenth
century. Judges attempted to balance their disapproval toward alcoholism against the fact that
inebriated individuals often lacked the mental capacity to formulate a criminal intent. Courts
created a distinction between offenses involving a specific intent for which voluntary intoxi-
cation was an excuse and offenses involving a general intent for which voluntary intoxication
was not recognized as an excuse. An individual charged with a crime requiring a specific intent
was able to introduce evidence that the use of alcohol prevented him or her from forming a spe-
cific intent to assault an individual with the intent to kill. A defendant who proved successful
would be held liable for the lesser offense of simple assault. As noted by the California Supreme
Court, the difference between an intent to commit a battery and an intent to commit a battery
for the purpose of raping or killing “may be slight, but it is sufficient to justify drawing a line
between them and considering evidence of intoxication in the one case and disregarding it in
the other.”30
MPC Section 2.08(1)(2) accepts the common law’s distinction between offenses based on
intent and substitutes “knowledge” or “purpose” for a specific intent and “negligence or reckless-
ness” for a general intent. The commentary to the code notes that it would be unfair to punish
an individual who, due to inebriation, lacks “knowledge or purpose,” even when this results from
voluntary intoxication.31
Professor Jerome Hall observes that in practice, the hostility toward the inebriated defendant
has resulted in the voluntary intoxication defense only being recognized in isolated instances,
typically involving intentional killing.32 Courts have placed a heavy burden on defendants seeking
to negate a specific intent. Even the consumption of large amounts of alcohol is not sufficient. The
New Jersey Supreme Court observed that there must be a showing of such a “great prostration of
the faculties that the requisite mental state was totally lacking. . . . [A]n accused must show that
he was so intoxicated that he did not have the intent to commit an offense. Such a state of affairs
will likely exist in very few cases.” This typically requires an evaluation of the quantity and period
of time that an intoxicant was consumed, blood alcohol content, and the individual’s conduct and
ability to recall events.33
The contemporary trend is to return to the original common law rule and refuse to recog-
nize a defense based on voluntary alcoholism. Twelve states do not recognize the alcoholism
defense: Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Missouri, Montana, Ohio, Oklahoma,
Pennsylvania, and Texas. The thinking is that the defendant voluntarily created a situation in
which he or she was unable to form a specific criminal intent.
The Arizona Criminal Code, in Section 13-503 of the Arizona Revised Statutes Annotated, pro-
vides that “[t]emporary intoxication resulting from the voluntary ingestion . . . of alcohol . . . or
other psychoactive substances or the abuse of prescribed medications . . . is not a defense for any
criminal act or requisite state of mind.” Texas Penal Code Annotated Section 8.04 provides that
“[v]oluntary intoxication does not constitute a defense to the commission of crime.” The right
of states to deny defendants the intoxication defense was affirmed by the U.S. Supreme Court in
1996, in Montana v. Egelhoff; Justice Antonin Scalia noted that Montana was merely returning to
the law at the time of the drafting of the U.S. Constitution and that this rule served to deter exces-
sive drinking.34
Involuntary Intoxication
Involuntary intoxication is a defense to any and all criminal offenses in those instances that
the defendant’s state of mind satisfies the standard for the insanity defense in the state. MPC
Section 2.08(4) requires that the individual “lacks substantial capacity” to distinguish right from
wrong or to conform his or her behavior to the law. The code also recognizes “pathological intox-
ication.” This arises in those instances when an individual voluntarily consumes a substance and
experiences an extreme and unanticipated reaction. Involuntary intoxication from alcohol or nar-
cotics can occur in any of four ways35:
1. Duress. An individual is coerced into consuming an intoxicant.

2. Mistake. An individual mistakenly consumes a narcotic rather than his or her prescribed
medicine.
3. Fraud. An individual consumes a narcotic as a result of a fraudulent misrepresentation of
the nature of the substance.
4. Medication. An individual has an extreme and unanticipated reaction to medication pre-
scribed by a doctor.
A Wisconsin statute provides that an intoxicated or drugged condition is a defense only if it

is “involuntarily produced and renders the actor incapable of distinguishing between right and
wrong in regard to the alleged criminal act at the time the act is committed.” Involuntary intoxi-
cation under Wisconsin law also may be used to negate a criminal intent other than recklessness.36
Age
In 2000, on the last day of the school year, thirteen-year-old Nathaniel Brazill shot and killed one
of his favorite teachers at his middle school, Barry Grunow. Brazill was prosecuted as an adult
and convicted of first-degree murder and sentenced to twenty-eight years in prison. “As Grunow
attempted to close the classroom door, Brazill pulled the trigger and Grunow fell to the floor,
with a gunshot wound between the eyes. A school surveillance videotape of the hallway revealed
that Brazill had pointed the gun at Grunow for nine seconds before shooting. Brazill exclaimed:
‘Oh s--t,’ and fled.”37 In a second Florida case, Lionel Tate, age twelve, wrestled and killed his six-
year-old friend. He was convicted of first-degree murder and was sentenced to life imprisonment
without parole. His sentence was overturned on appeal; he pled guilty to second-degree murder
and was released in 2004. One year later, Tate committed an armed robbery and was sentenced to
a thirty-year prison term.38 Should juveniles like Brazill and Tate be punished as adults?
The early common law did not recognize infancy as a defense to criminal prosecution.
Youthful offenders, however, were typically pardoned. A tenth-century statute softened the fail-
ure to recognize infancy as a defense by providing that an individual younger than the age of
fifteen was not subject to capital punishment unless he or she made an effort to elude authorities
or refused to surrender. A further refinement occurred in the fourteenth century when children
younger than seven were declared to be without criminal capacity.
The common law continued to develop and reached its final form by the seventeenth century.
Juveniles were divided into three categories based on the capacity of adolescents at various ages to
formulate a criminal intent. Individuals were categorized on the basis of their actual rather than
their mental age at the time of the offense.39
• Children younger than seven lack a criminal capacity. There was an irrebuttable presumption, an
assumption that cannot be overcome by facts, that children younger than seven lack the ability to
formulate a criminal intent.
• Children older than seven and younger than fourteen were presumed to be without capacity
to form a criminal intent. This was a rebuttable presumption; the prosecution could overcome the
presumption by evidence that the juvenile knew what he or she was doing was wrong. The older
the child and the more atrocious the crime, the easier to overcome the presumption. Factors to be
considered include the age of the child, efforts to conceal the crime and to influence witnesses,
and the seriousness of the crime.
• Children fourteen and older possessed the same criminal capacity as adults. Juveniles capable
of forming a criminal intent may be prosecuted as adults rather than remain in the juvenile sys-
tem. Today, the age when a juvenile may be criminally prosecuted as an adult rather than being
brought before a juvenile court is determined by state statute. There is no standard approach. One
group of states maintains a conclusive presumption of incapacity for juveniles younger than a par-
ticular age (usually fourteen); however, other states provide that juveniles regardless of age may be
treated as adults. A third group of states provide that juveniles charged with serious offenses may
be treated as adults.
The common law presumptions of incapacity are not applicable to proceedings in juvenile
court because the purpose of the court is treatment and rehabilitation rather than the adjudication
of moral responsibility and punishment.40
There is a growing trend for state statutes to permit the criminal prosecution of any juvenile
as an adult who is charged with a serious offense. These “transfer statutes” adopt various schemes,
vesting “waiver authority” in juvenile judges or prosecutors or providing for automatic transfer for
specified crimes.41 The standard to be applied by judges was articulated by the U.S. Supreme Court
in Kent v. United States. The factors to be considered in the decision whether to prosecute a juvenile
as an adult include the seriousness and violence of the offense, the background and maturity of
the juvenile, and the ability of the juvenile justice system to protect the public and rehabilitate
the offender.42
You Decide 6.2 K.R.L., eight years, two He told her that the “Devil was making him do bad
months old, was playing with a things.”
friend behind a building. Catherine K.R.L. subsequently was charged with residential
Alder heard the boys playing and burglary. Earlier, he had taken “Easter candy” from
directed them to leave because a neighbor’s home without permission. K.R.L. admit-
the area was dangerous. K.R.L. responded in an angry ted to the police that he “knew it was wrong and he
manner and replied that he would leave “in a minute.” wouldn’t like it if somebody took his candy.” The same
Alder, with obvious irritation, told the two boys, “No, not officer testified that on an earlier occasion, K.R.L. had
in a minute, now, get out of there now.” The boys then been caught riding the bicycles of two neighbor children
ran off. without having their permission. K.R.L. told the police
Three days later, K.R.L. entered Alder’s home with- officer that he “knew it was wrong” to ride the bicycles.
out her permission. He removed a goldfish from a fish- The assistant principal of K.R.L.’s elementary
bowl, chopped it into several pieces with a steak knife school testified that K.R.L. was of “very normal” intelli-
and “smeared it all over the counter.” He then went into gence. K.R.L.’s first-grade teacher said that K.R.L. had
Alder’s bathroom and “clamped a ‘plugged in’ hair curl- “some difficulty” in school and that he would place
ing iron onto a towel.” K.R.L’s mother testified that he K.R.L. in a “lower age academically.”
admitted to her that entering Alder’s home was wrong In Washington State, children younger than eight
after she had beaten him “with a belt, black and blue.” are incapable of a criminal intent. Children between
(Continued)
(Continued)
eight and twelve years of age are presumed to be inca- decide whether the trial court was correct in conclud-
pable of committing a crime. This presumption may be ing that there was clear and convincing evidence that
overcome by proof that they have “sufficient capacity to K.R.L. had the capacity to commit residential burglary.
understand the act or neglect, and to know that it was What is your opinion? See State v. K.R.L., 840 P.2d
wrong.” The Washington Supreme Court was asked to 210 (Wash. Ct. App. 1992).
DEFENSES BASED ON JUSTIFICATION OR EXCUSE

As previously pointed out, justification defenses are based on the circumstances confronting an
individual and may be invoked by any individual in similar circumstances. Excuse defenses gener-
ally are available to individuals who lack the capacity to form a criminal intent.
Necessity
The necessity defense recognizes that conduct that would otherwise be criminal is justified
when undertaken to prevent a significant harm. This is commonly called the “choice of evils”
because individuals are confronted with the unhappy choice between committing a crime and
experiencing a harmful event. The harm to be prevented was traditionally required to result from
the forces of nature. A classic example is the boat captain caught in a storm who disregards a
“no trespassing” sign and docks his or her boat on an unoccupied pier. Necessity is based on the
assumption that had the legislature been confronted with this choice, the legislators presumably
would have safeguarded the human life of sailors over the property interest of the owner of the
dock. As a result, elected officials could not have intended that the trespass statute would be
applied against a boat captain in this situation.43
The limitation of necessity to actions undertaken in response to the forces of nature has been
gradually modified, and most modern cases arise in response to pressures exerted by medical emer-
gencies and other situations in which individuals must act immediately to avert harm. State v.
Salin is representative of this trend. Salin, an emergency medical services technician, was arrested
for speeding while responding to a call to assist a two-year-old child who was not breathing. The
Delaware court agreed that Salin reasonably assumed that the child was in imminent danger and
did not have time to use his cell phone to check on the child’s progress. His criminal conviction
was reversed on the grounds of necessity. Judge Charles Welch concluded that Salin was con-
fronted by a choice of evils and that his “slightly harmful conduct” was justified in order to “pre-
vent a greater harm.”44
Roughly half of the states possess necessity statutes, and the other jurisdictions rely on the
common law defense of necessity. There is agreement on the central elements of the defense.45
Model Penal Code

Section 3.02. Justification Generally: Choice of Evils
(1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to
another is justifiable, provided that:
(a) the harm or evil sought to be avoided by such conduct is greater than that sought to
be prevented by the law defining the offense charged; and
(b) neither the Code nor other law defining the offense provides exceptions or defenses
dealing with the specific situation involved; and
(c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
(2) When the actor was reckless or negligent in bringing about the situation requiring a
choice of harms or evil or in appraising the necessity for his conduct, the justification
afforded by this Section is unavailable in a prosecution for any offense for which reckless-
ness or negligence, as the case may be, suffices to establish culpability.
Analysis
The commentary to the MPC observes that the letter of the law must be limited in certain circum-
stances by considerations of justice. The commentary lists some specific examples:
1. Property may be destroyed to prevent the spread of a fire.

2. The speed limit may be exceeded in pursuing a suspected criminal.
3. Mountain climbers lost in a storm may take refuge in a house or seize provisions.
4. Cargo may be thrown overboard or a port entered to save a vessel.
5. An individual may violate curfew to reach an air-raid shelter.
6. A druggist may dispense a drug without a prescription in an emergency.
Several steps are involved under the MPC:
•• A Belief That Acts Are Necessary to Avoid a Harm. The actor must “actually believe” the act is
necessary or required to avoid a harm or evil to him- or herself or to others. A druggist who
sells a drug without a prescription must be aware that this is an act of necessity rather than
ordinary lawbreaking.
•• Comparative Harm or Evils. The harm or evil to be avoided is greater than that sought to be
prevented by the law defining the offense. Human life generally is valued above property. A
naval captain may enter a port from which the vessel is prohibited to save the life of a crew
member. The question of whether an individual has made the proper choice is determined
by the judge or jury rather than by the defendant’s subjective belief.
•• Legislative Judgment. A statute may explicitly preclude necessity; for instance, prohibiting
abortions to save the life of the mother.
•• Creation of Harm. The individual did not intentionally, negligently, or recklessly create the
harm or negligently or recklessly misperceive the necessity to act. The boat captain who
knowingly sets sail in a severe storm cannot rely on the necessity defense to justify docking
the boat on a stranger’s pier.
•• Alternatives. An absence of legal alternatives.
The Legal Equation

Necessity = Criminal action believed to be necessary to prevent a harm
+ the harm prevented is greater than will result from the criminal act
+ absence of legal alternatives
+ legislature did not preclude necessity
+ did not intentionally, negligently, or recklessly create the harm.

You Decide 6.3 Matthew Ducheneaux was these protocols resulted in painful and potentially fatal
charged with possession of mari- side effects. One of the prescription drugs for spastic
juana. He was arrested on a bike paralysis is Marinol, a synthetic tetrahydrocannabinol
path in Sioux Falls, South Dakota, (THC). THC is the essential active ingredient of marijuana.
during the city’s annual “Jazz Fest” Ducheneaux has a prescription for Marinol, but testified it
in July 2000. He falsely claimed that he lawfully pos- causes dangerous side effects that are absent from mar-
sessed the two ounces of marijuana as a result of his ijuana. The South Dakota legislature has provided that
participation in a federal medical research project. “no person may knowingly possess marijuana” and has
Ducheneaux is thirty-six and was rendered quadriplegic declined on two occasions to create a medical necessity
by an automobile accident in 1985. He is almost com- exception. Would you convict Ducheneaux of the criminal
pletely paralyzed other than some movement in his possession of marijuana? The statute provides that the
hands. Ducheneaux suffers from spastic paralysis that justification defense is available when a person commits
causes unpredictable spastic tremors and pain through- a crime “because of the use or threatened use of unlaw-
out his body. He testified that he had not been able to ful force upon him or upon another person.” See State v.
treat the symptoms with traditional drug therapies and Ducheneaux, 671 N.W.2d 841 (S.D. 2003).
Duress
The common law excused an individual from guilt who committed a crime to avoid a threat of
imminent death or bodily harm. In several seventeenth- and eighteenth-century cases involving
Read
treason or rebellion against the king, defendants were excused who joined or assisted the rebels
Commonwealth
v. Kendall and
in response to a threat of injury or death. The common law courts stressed that individuals were
People v. Michael obligated to desert the rebels as soon as the threat of harm was removed.46
S. on the study Duress differs from necessity in that an individual commits a crime because of an immediate
site: study threat from another individual rather than because of the situation confronting the individual.
.sagepub.com/ Realism may be the most persuasive justification for duress. An English court nicely captured
lippmaness2e. this concern in the observation that in the “calm of the courtroom, measures of fortitude or of
heroic behavior are surely not to be demanded when they could not in moments for decision rea-
sonably have been expected even of the resolute and the well-disposed.”47
The defense of duress raises the difficult question whether the law should excuse the criminal
acts of an individual who is forced to commit a crime in order to avoid the infliction of death or
serious bodily harm to him- or herself. The individual was compelled against his or her will to act.
On the other hand, why should we allow an individual who harms another to escape punishment?
This debate is at the core of the defense of duress.
The defense of duress involves several central elements:
•• The defendant’s actions are to be judged in accordance with a reasonable person standard.
•• There must be a threat of death or serious bodily harm from another individual that causes
an individual to commit a crime. Most states also recognize that a threat directed against
a member of the defendant’s family or a third party may constitute duress. Psychological
pressure or blackmail does not amount to a threat for purposes of duress.
•• Duress does not excuse the intentional taking of the life of another.
•• The threat must be immediate and imminent.
•• An individual must have exhausted all reasonable and available alternatives to violating the
law.
•• The defendant must not create or assist in creating the circumstances leading to the claim
of duress.
The most controversial duress cases involve prison escapes, in which inmates threatened
with physical assault have been held to be entitled to rely on the defense of duress to excuse
their escape. In People v. Unger, the defendant Francis Unger, a twenty-two-year-old full-blooded
Crete Indian, pled guilty to a theft charge and was imprisoned in Stateville Penitentiary in Joliet,
Illinois.48 During the first two months of Unger’s imprisonment, he was threatened by an inmate
wielding a six-inch knife who demanded that the defendant engage in homosexual activity. Unger
was transferred to a minimum-security honor farm and, one week later, was beaten and sexually
assaulted by a gang of inmates.
Unger was warned against informing authorities and, several days later, received a phone call
informing him that he would be killed in retribution for having allegedly contacted correctional
officials. Unger responded by escaping from the dairy farm, and he was apprehended two days
later while still wearing his prison clothes. He claimed that he had intended to return to the
institution.
The court determined that Unger, under these circumstances, was entitled to a jury instruc-
tion on duress because he may have reasonably believed that he had no alternative other than to
escape, to be killed, or to suffer severe bodily harm. The Illinois appellate court held that it was
unrealistic to require that a prisoner wait to escape until the moment that he was being “immedi-
ately pursued by armed inmates” and it was sufficient that Unger was threatened that he would be
dead before the end of the evening.
Inmates relying on duress must establish that they did not use force or violence toward prison
personnel or other innocent individuals in the escape and that they immediately contacted author-
ities once having reached a position of safety. The requirement that individuals turn themselves
into authorities at the first opportunity in several federal court cases has been extended to individ-
uals who acted as drug couriers after being threatened by gang leaders. In United States v. Moreno,
the Ninth Circuit Court of Appeals held that “[t]he encounter with Officer Krajewski presented a
clear opportunity for Moreno to save himself and alert authorities about the threat to his family.
Instead, he kicked Officer Krajewski in the head twice in his attempt to escape to complete his
illegal delivery.”49
The duress defense is not fully embraced by all commentators; some argue that the law
should encourage people to resist rather than to conform to the demands of violent and forceful
individuals.
Model Penal Code

Section 2.09. Duress
(1) It is an affirmative defense that the actor engaged in the conduct charged to constitute an
offense because he was coerced to do so by the use of, or a threat to use, unlawful force
against his person or the person of another, that a person of reasonable firmness in his
situation would have been unable to resist.
(2) The defense is unavailable if the actor recklessly [or negligently] placed himself in such a
situation.
(3) It is not a defense that a woman acted on the command of her husband.
Analysis
The MPC significantly amends the common law standard:
1. The threat need not be limited to death or serious bodily harm. The commentary provides
for a threat of unlawful force against the individual or another that would coerce an indi-
vidual of “reasonable firmness” in the defendant’s situation. Only threats to property or
reputation are excluded in the commentary.
2. The threat is not required to be imminent or immediate.
3. Duress may be used as an excuse for homicide.
4. The threat may be to harm another person and is not limited to friends or relatives.
The Legal Equation

Duress = Reasonable belief of
+ an imminent threat by another
+ of death or severe bodily harm
+ gainst the defendant or close friend or relative (not limited in the

a
Model Penal Code)
+ that causes defendant (reasonable person standard) to commit a

criminal act
+ defendant did not place himself or herself in the situation
+ defendant did not kill another (not in Model Penal Code).
You Decide 6.4 Georgia Carradine was held in through payments from her husband and supplemental
contempt of court based on her welfare funds. She explained that she distrusted the
refusal to testify after witnessing State’s Attorney and doubted that law enforcement
a gang-related homicide, explain- authorities could protect her from the Blackstone
ing that she was in fear for her life Rangers youth gang. Carradine’s fear was so great that
and the lives of her children. Carradine was sentenced she was willing to go to jail rather than to testify. The
to six months in the Cook County jail. She persisted in Illinois Supreme Court, in affirming the sentence,
this refusal despite the government’s offers to relocate stated that criminals could not be brought to the bar of
her and her family to other areas in Chicago, Illinois, or justice “unless citizens stand up to be counted.” Do
the continental United States. Carradine had been sep- you agree with the decision to deny Carradine the
arated from her husband for roughly four years and defense of duress? See People v. Carradine, 287
supported her six children aged five to eighteen N.E.2d 670 (Ill. 1972).
Consent
The fact that an individual consents to be the victim of a crime ordinarily does not constitute a
defense. For example, the Massachusetts Supreme Judicial Court held that an individual’s consen-
Read United States sual participation in a sadomasochistic relationship was not a defense to a charge of assault with a
v. Moreno on the small whip. The Massachusetts justices stressed that as a matter of public policy, an individual may
study site: study
not consent to become a victim of an assault and battery with a dangerous weapon.50
.sagepub.com/
lippmanness2e
In State v. Brown, a New Jersey Superior Court ruled that a wife’s instructions to her husband
that he should beat her in the event that she consumed alcoholic beverages did not constitute a
justification for the severe beating he administered. Judge Bachman ruled that to “allow an other-
wise criminal act to go unpunished because of the victim’s consent would not only threaten the
security of our society but also might tend to detract from the force of the moral principles under-
lying the criminal law.”51
There are three exceptions or situations in which the law recognizes consent as a defense to
criminal conduct, which are recognized in MPC Section 2.11:
•• Incidental Contact. Acts that do not cause serious injury or harm customarily are not sub-
ject to criminal prosecution and punishment. People, for example, often are bumped and
pushed on a crowded bus or at a music club.
•• Sporting Events. Ordinary physical contact or blows are incident to sports such as football,
boxing, or wrestling.
•• Socially Beneficial Activity. Individuals benefit from activities such as medical procedures and
surgery.
Consent must be free and voluntary and may not be the result of duress or coercion or fraud.
Consent also is invalid if offered by an individual who lacks the legal capacity to consent based
on age, a mental defect, or intoxication. An individual may limit the scope of consent by, for
instance, authorizing a doctor to operate on only three of the five fingers on his or her left hand.
The forgiveness of a perpetrator by the victim following a crime does not constitute consent to a
criminal act. A recent area of concern involves fraternity hazing. A New York judge found that the
beating inflicted on pledges exceeded the terms of consent and that consent must be voluntary
and intelligent and must be “free of force or fraud.”52
The Legal Equation

Consent = A justification, generally.
Consent = A justification only for
1. incidental contact;
2. foreseeable injury in legal sporting event; and
3. beneficial medical procedure; where
+ consent is voluntarily given by an individual with legal capacity.
You Decide 6.5 Givens Miller, an eighteen- toward him, George punched Givens in the face. George
year- old, 210 - pound football then threw two more punches. Givens testified that at
player, had a disagreement with the time of the incident, he “was all jazzed up” from the
his parents following a high school game and “in an aggressive mood” and “kind of wanted
football game. Givens’s father, to hit [George]” and he “kind of wanted [George] to
George, responded by taking away Givens’s cell phone hit [him].” Givens “suffered dental fractures and loose
and car keys. Givens repeatedly shouted at his parents, teeth. He also received two blows to the head, and tes-
telling his father to “take your G.D. money and ‘f---’ your- tified that he may have lost consciousness for a brief
self with it.” He then baited George, uttering “What the moment.” At the close of evidence, George objected to
‘f---,’ man. I’m going to—you going to hit me, man? Are the jury charge because the court did not include an
you going to hit me? What the ‘f---,’ man.” instruction on the defense of consent.
George responded, “No, I’m not going to hit you,” Was the judge correct in not issuing an instruction
and shoved Givens away from him. Givens kicked and on consent? See Miller v. State, 312 S.W.3d 209 (Tex.
punched George in his side; and as Givens charged Ct. App. 2010).
Mistake of Law and Mistake of Fact

A core principle of the common law is that only “morally blameworthy” individuals should be
Read State v.
subject to criminal conviction and punishment. What about the individual who commits an act
Dejarlais on the
that he or she does not realize is a crime? Consider a resident of a foreign country who is flying study site: study
to the United States for a vacation and is asked by a new American acquaintance to bring a vial .sagepub.com/
of expensive heart medicine to his or her parents in the United States. The visitor is searched by lippmaness2e.
American customs officials as he or she enters the United States, and the heart medicine is dis-
covered to be an illegal narcotic. Should the victim be held criminally liable for the knowing pos-
session of narcotics despite this “mistake of fact”? What if the visitor was asked by his American
friend to transport cocaine and was assured that there was nothing to worry about because the
importation and possession of this narcotic is legal in the United States? How should the law
address this “mistake of law”?
In the previous two hypothetical examples, the question is whether an individual who mistak-
enly believes that his or her behavior is legal should be held liable for violating the law. Professor
Wayne R. LaFave has observed that no area has created “more confusion” than mistakes of law and
fact—a confusion that has caused “ulcers in law students.”53
Mistake of Law
The conventional wisdom is that ignorantia legis non excusat: “Ignorance of the law is no
excuse.” The rule that a mistake of law does not constitute a defense is based on several consid-
erations, including the expectation that individuals should know the law.54
The expectation that individuals know the law may have made sense in early England. Critics
contend, however, that people cannot realistically be expected to comprehend the vast number of
laws that characterize modern society. An individual who, through a lack of knowledge, violates
highly technical statutes regulating taxation or banking can hardly be viewed as “morally blame-
worthy.”55 Some observers note that courts seem to have taken this criticism seriously and, in sev-
eral instances, have relaxed the rule that individuals are presumed to “know the law.”56 Three U.S.
Supreme Court decisions illustrate this trend:
1. Notice. In Lambert v. California, the defendant was convicted of failure to adhere to a law
that required a “felon” resident in Los Angeles to register with the police within five days.
The U.S. Supreme Court found that convicting Lambert would violate due process because
the law was unlikely to have come to his attention.57
2. Intent. In Cheek v. United States, an airline pilot had been counseled by antitax activists and
believed that his wages did not constitute income and, therefore, he did not owe federal
tax. He was convicted of willfully attempting to evade or defeat his taxes. The U.S. Supreme
Court ruled that Congress required a showing of a willful intent to violate tax laws because
the vast number of tax statutes made it likely that the average citizen might innocently fail
to remain informed of the provisions of the tax code.58
3. Reliance. In the civil rights–era case of Cox v. Louisiana, the defendants were convicted
of picketing a courthouse with the intent of interfering, obstructing, or influencing the
administration of justice. The U.S. Supreme Court reversed the students’ convictions on
the grounds that the chief of police had instructed them that they could legally picket at a
location 101 feet from the courthouse steps.59
MPC Section 2.04(3) recognizes an “ignorance of the law defense” when the defendant does
not know the law and the law has not been published or made reasonably available to the public
(notice). This defense also applies where the defendant has relied on an official statement of the
law (reliance).
Mistake of Fact
A mistake of fact constitutes a defense in those instances when the defendant’s mistake results in
a lack of criminal intent. MPC Section 2.04(1) states that “ignorance or mistake is a defense when
it negatives the existence of a state of mind that is essential to the commission of an offense.” As
a first step, determine the intent required for the offense and then compare this to the defendant’s
state of mind. A defendant may take an umbrella from a restaurant during a rainstorm believing
that this is the umbrella that he or she left at the restaurant two years ago. The accused will be
acquitted of theft because he or she lacked the intent to take, carry away, and permanently deprive
the owner of the umbrella. Some courts require that a defendant’s mistake must be objectively
reasonable, meaning that a reasonable person would have made the same mistake. A trial court,
for instance, might conclude that it was unreasonable for the defendant to believe after two years
that his umbrella was still at the restaurant.60
Another aspect of the mistake of fact defense is that an individual may be mistaken but none-
theless will be held criminally liable in the event that the facts as perceived by the defendant still
comprise a crime. For example, a defendant may be charged with receiving stolen umbrellas and
contend that he or she believed that the package contained stolen raincoats. This would not exon-
erate the defendant. The charge is based on the receipt of stolen property, not stolen umbrellas.61
MPC Section 2.04(1)(a)(b) accepts that a mistake of fact constitutes a defense so long as it “neg-
atives” the intent required under the statute.
The Legal Equation

Mistake of law = o excuse (some indication may excuse criminal liability in
N
cases involving notice, intent, or reliance).
Mistake of fact = istake is an excuse if it negates the required criminal intent
M
(may require reasonable mistake).
You Decide 6.6 The defendant and his cousin, Three private attorneys confirmed that the Iowa mar-
knowing that their marriage would riage was not valid in Nebraska. The defendant subse-
be illegal in Nebraska, married in quently “separated” from his pregnant cousin and
Iowa, where such unions are not remarried another woman. It later was determined that,
prohibited. The county prosecutor in fact, the Iowa marriage was valid in Nebraska, and
informed the defendant that he would be prosecuted for the defendant was charged with bigamy (simultaneous
sexual relations without marriage (“fornication”) in the marriage to more than a single spouse). Is the defen-
event that the couple continued to live in Nebraska dant guilty of bigamy? See Staley v. State, 89 Neb. 701
because the marriage was not recognized in the state. (1911).
DEFENSES JUSTIFYING THE USE OF FORCE

An individual who reasonably believes that he or she is threatened with an imminent threat of
bodily harm is entitled to use force to protect himself or herself.
Self-Defense
It is commonly observed that the United States is a “government of law rather than men and
women.” This means that guilt and punishment are to be determined in accordance with fair and
objective legal procedures in the judicial suites rather than by brute force in the streets. Accordingly,
the law generally discourages individuals from “taking the law into their own hands.” This type
of “vigilante justice” risks anarchy and mob violence. One sorry example is the lynching of thou-
sands of African Americans by the Ku Klux Klan following the Civil War.
Self-defense is the most obvious exception to this rule and is recognized as a defense in all
fifty states. Why does the law concede that an individual may use physical force in self-defense?
One federal court judge noted the practical consideration that absent this defense, the innocent
victim of a violent attack would be placed in the unacceptable position of choosing between
“almost certain death” at the hands of his or her attacker or a “trial and conviction of murder
later.” More fundamentally, eighteenth-century English jurist William Blackstone wrote that it was
“lawful” for an individual who is attacked to “repel force by force.” According to Blackstone, this
was a recognition of the natural impulse and right of individuals to defend themselves. A failure to
recognize this right would inevitably lead to a disregard of the law.62
The Central Components of Self-Defense

The common law recognizes that an individual is justified in employing force in self-defense. This
may involve deadly or nondeadly force, depending on the nature of the threat. There are a number
of points to keep in mind:
•• Reasonable Belief. An individual must possess a reasonable belief that force is required to
defend himself or herself. In other words, the individual must believe and a reasonable per-
son must believe that force is required in self-defense.
•• Necessity. The defender must reasonably believe that force is required to prevent the immi-
nent and unlawful infliction of death or serious bodily harm.
•• Proportionality. The force employed must not be excessive or more than is required under the
circumstances.
•• Retreat. A defendant may not resort to deadly force if he or she can safely retreat. This
generally is not required when the attack occurs in the home or workplace, or if the attacker
uses deadly force.
•• Aggressor. An aggressor, or individual who unlawfully initiates force, generally is not enti-
tled to self-defense. An aggressor may claim self-defense only in those instances that an
aggressor who is not employing deadly force is himself or herself confronted by deadly
force. Some courts require that under these circumstances, the aggressor withdraw from the
conflict if at all possible before enjoying the right of self-defense. There are courts willing to
recognize that even an aggressor who employs deadly force may regain the right of self-de-
fense by withdrawing following the initial attack. The other party then assumes the role of
the aggressor.
•• Mistake. An individual who is mistaken concerning the necessity for self-defense may rely on
the defense as long as his or her belief is reasonable.
•• Imperfect Self-Defense. An individual who honestly, but unreasonably, believes that he or she
confronts a situation calling for self-defense and intentionally kills is held liable in many
states for an intentional killing. Other states, however, follow the doctrine of imperfect
self-defense. This provides that although the defendant may not be acquitted, fairness
dictates that he or she should be held liable only for the less serious crime of manslaughter.
Model Penal Code

Section 3.04. Use of Force in Self-Protection
(1) [T]he use of force upon or toward another person is justifiable when the actor believes that
such force is immediately necessary for the purpose of protecting himself against the use
of unlawful force by such other person on the present occasion.
(2) Limitations on Justifying Necessity for Use of Force.
(a) . . .
(b) The use of deadly force is not justifiable under this Section unless the actor believes
that such force is necessary to protect himself against death, serious bodily injury, kid-
napping or sexual intercourse compelled by force or threat; nor is it justifiable if:
(i) the actor, with the purpose of causing death or serious bodily injury, provoked the
use of force against himself in the same encounter; or
(ii) the actor knows that he can avoid the necessity of using such force with complete
safety by retreating or by surrendering possession of a thing to a person asserting
a claim of right thereto or by complying with a demand that he abstain from any
action that he has no duty to take. . . .
Analysis
The MPC makes some significant modifications to the standard approach to self-defense that will
be discussed later in the text. The basic formulation affirms that the use of force in self-protection
is justified in those instances in which an individual “employs it in the belief that it is immediately
necessary for the purpose of protecting himself against the other’s use of unlawful force on the
present occasion.” The code provides that an aggressor who uses deadly force may “break off the
struggle” and retreat and regain the privilege of self-defense against the other party.
The Legal Equation

Self-defense = Reasonable belief
+ immediately necessary
+ to employ proportionate force
+ to protect oneself against unlawful force.
Reasonable Belief
The common law and most statutes and modern decisions require that an individual who relies
on self-defense must act with a reasonable belief in the imminence of serious bodily harm or
death. The Utah statute on self-defense specifies that a person is justified in threatening or using
force against another in those instances in which he or she “reasonably believes that force is nec-
essary . . . to prevent death or serious bodily injury.” . . . The reasonableness test has two prongs:
1. Subjective. A defendant must demonstrate an honest belief that he or she confronted an

imminent attack.
2. Objective. A defendant must demonstrate that a reasonable person under the same circum-
stances would have believed that he or she confronted an imminent attack.
An individual who acts with an honest and reasonable, but mistaken, belief that he or she is
subject to an armed attack is entitled to the justification of self-defense. The classic example is the
individual who kills an assailant who is about to stab him or her with a knife, a knife that later is
revealed to be a realistic-looking rubber replica. As noted by Supreme Court Justice Oliver Wendell
Holmes Jr., “[d]etached reflection cannot be demanded in the presence of an uplifted knife.”63
Absent a reasonableness requirement, it is feared that individuals might act on the basis of suspi-
cion or prejudice or intentionally kill or maim and then later claim self-defense.
The MPC adopts a subjective approach and only requires that a defendant actually believe
in the necessity of self-defense. The subjective approach has been adopted by very few courts.
An interesting justification for this approach was articulated by the Colorado Supreme Court,
which contended that the reasonable person standard was “misleading and confusing.” The right
to self-defense, according to the Colorado court, is a “natural right and is based on the natural
law of self-preservation. Being so, it is resorted to instinctively in the animal kingdom by those
creatures not endowed with intellect and reason, so it is not based on the ‘reasonable man’
concept.”64
A number of courts are moving to a limited extent in the direction of the MPC by providing
that a defendant acting in an honest, but unreasonable, belief is entitled to claim imperfect self-
defense and should be convicted of manslaughter rather than intentional murder.65 In Harshaw v.
State, the defendant and deceased were arguing, and the deceased threatened to retrieve his
gun. They both retreated to their automobiles, and the defendant grabbed his shotgun in time
to shoot the deceased as he reached inside his automobile. The deceased was later found to
have been unarmed. The Arkansas Supreme Court ruled that the judge should have instructed
the jury on manslaughter because the jurors could reasonably have found that Harshaw acted
“hastily and without due care” and that he merited a conviction for manslaughter rather than
murder.66
The New York Court of Appeals wrestled with the meaning of “reasonableness” under the New
York statute in the famous “subway murder trial” of Bernhard Goetz. Goetz reacted to four young
juveniles who asked him for money on the subway by brandishing a pistol and firing five shots
in “self-defense.” The court noted that a subjective standard would exonerate an individual who
claimed to have acted in self-defense no matter how delusional his or her beliefs. The legal test
according to the New York court is whether the defendant’s subjective belief that he or she con-
fronted an imminent threat was “reasonable under the circumstances.” In evaluating the reason-
ableness of the defendant’s belief, a number of factors are to be considered—including the relative
“size” of the individuals involved, knowledge of the assailant’s past involvement in violence, and
past experiences of the defendant that could provide the defendant with a reasonable belief that
he or she was threatened. The jury acquitted Goetz, who alleged that he had been threatened on
the subway in the past, of all charges other than unlawful possession of a firearm.67
Imminence
A defendant must reasonably believe that the threatened harm is imminent, meaning that the
harm “is about to happen.”
In State v. Schroeder, the nineteen-year-old defendant stabbed a violent cellmate who threat-
ened to make Schroeder his “sex slave” or “punk.” Schroeder testified that he felt vulnerable and
afraid and woke up at 1:00 a.m. and stabbed his cellmate in the back with a table knife and hit him
in the face with a metal ashtray. The Nebraska Supreme Court ruled that the threatened harm was
not imminent and that there was a danger in legalizing “preventive assaults.”68
The MPC adopts a broad approach and provides that force is justifiable when the actor believes
that he or she will be attacked on “the present occasion” rather than imminently. The broad MPC
test has found support in the statutes of a number of states, including Delaware, Hawaii, Nebraska,
New Jersey, and Pennsylvania. A dissenting judge in Schroeder cited the MPC and argued that the
young inmate should have been acquitted on the grounds of self-defense. After all, he could not be
expected to remain continuously on guard against an assault by his older cellmate or the cellmate’s
friends.
Battered Persons
The clash between the common law imminence requirement and the MPC’s notion that self-de-
fense may be justified where necessary to prevent an anticipated future harm is starkly presented
by the so-called battered spouse defense. In State v. Norman, the defendant had been the victim of
continual battering by her husband over a number of years, and he literally treated her like a “dog”
and forced her to eat out of bowl and to sleep on the floor. The victim shot and killed her abusive
spouse while he was asleep.69 The North Carolina Supreme Court affirmed the trial court’s refusal
to issue a self-defense instruction. The court held that the evidence did not “show that the defen-
dant reasonably believed that she was confronted by a threat of imminent death or great bodily
harm.” The court further observed that “relaxed requirements” for self-defense would “legalize the
opportune killing of abusive husbands by their wives solely on the basis of the wives’ . . . subjec-
tive speculation as the probability of future felonious assaults by their husbands.”70
Various state courts have held that a “battered spouse” is entitled to present expert witnesses
explaining what is termed the “battered spouse syndrome.” This syndrome is defined as a mental
state that results from a cycle of physical and psychological abuse. The expert testimony helps
the jury understand why it was reasonable for the defendant to have viewed himself or herself as
confronting a threat of imminent harm and that there was no reasonable alternative other than
to kill his or her abuser.71
A number of state legislatures have adopted statutes on intimate partner violence.72 A Missouri
statute provides that evidence that the defendant suffered from battered spouse syndrome is
admissible “upon the issue of whether the actor lawfully acted in self-defense.”73
Several courts have recognized the “battered child syndrome.” The Washington Supreme
Court, in an important decision, concluded that a seventeen-year-old who shot and killed his step-
father was entitled to rely on the “battered child syndrome” and to introduce evidence supporting
the reasonableness of his belief that he confronted the prospect of imminent abuse. Children are
Read State v.
Norman on the
more likely than adults to feel helpless and to lack the capacity to seek outside help or to leave the
study site: study abusive relationship and to see no other avenue of escape other than to kill their abuser.74
.sagepub.com/ Now that we have discussed the imminence requirement, we turn our attention to other
lippmaness2e. requirements for self-defense.
You Decide 6.7 The defendant, seventeen- homework assignment. In 1988, Walter hit Andrew with
year-old Andrew Janes, was aban- a piece of firewood, knocking him out. Andrew was sub-
doned by his alcoholic father at ject to verbal as well as physical threats, including a
age seven. Along with his mother threat to nail his hands to a tree, brand his forehead,
Gale and brother Shawn, Andrew place Andrew’s hands on a hot stove, break Andrew’s
was abused by his mother’s lover, Walter Jaloveckas, fingers, and hit him in the head with a hammer.
for roughly ten years. As Walter walked in the door fol- The “battered child syndrome” results from a pat-
lowing work on August 30, 1988, Andrew shot and tern of abuse and anxiety. “Battered children” live in
killed him; one 9-millimeter pistol shot went through a state of constant alert (“hypervigilant”) and caution
Walter’s right eye and the other through his head. The (“hypermonitoring”) and develop a lack of confidence
previous night, Walter had yelled at Gale, and Walter and an inability to seek help (“learned helplessness”).
later leaned his head into Andrew’s room and spoke in Did Andrew believe and would a reasonable person
low tones that usually were “reserved for threats.” in Andrew’s situation believe that Andrew confronted
Andrew was unable to remember precisely what Walter an imminent threat of great bodily harm or death?
said. In the morning, Gale mentioned to Andrew that The Washington Supreme Court clarified that immi-
Walter was still mad. After returning from school, nent means “near at hand . . . hanging threateningly
Andrew loaded the pistol, drank some whiskey, and over one’s head . . . menacingly near.” The trial court
smoked marijuana. refused to instruct the jury to consider whether Andrew
Examples of the type of abuse directed against was entitled to invoke self-defense.
Andrew by Walter included beatings with a belt and wire Should the Washington Supreme Court uphold or
hanger, hitting Andrew in the mouth with a mop, and reverse the decision of the trial court? See State v.
punching Andrew in the face for failing to complete a Janes, 850 P.2d 495 (Wash. 1993).
Excessive Force
An individual acting in self-defense is entitled to use that degree of force reasonably believed to be
necessary to defend himself or herself. Deadly force is force that a reasonable person under the
circumstances would be aware will cause or create a substantial risk of death or substantial bodily
harm. This may be employed to protect against death or serious bodily harm. The application of
excessive rather than proportionate force may result in a defender’s being transformed into an
aggressor. This is the case where an individual entitled to nondeadly force resorts to deadly
force. The MPC limits deadly force to the protection against death, serious bodily injury, kid-
napping, or rape. The Wisconsin statute authorizes the application of deadly force against arson,
robbery, burglary, and any felony offense that creates a danger of death or serious bodily harm.75
In State v. DeJesus, DeJesus was attacked by two machete-wielding assailants, and he knocked
them to the ground with a metal pipe and beat them to death. The Connecticut Supreme Court
held that “[t]he jury could have reasonably concluded that the defendant did not reasonably
believe that the degree of deadly force he exercised, in continuing to beat the victims in the man-
ner established by the evidence, was necessary under the circumstances to thwart any immediate
attacks from either or both of the victims.”76
Retreat
The law of self-defense is based on necessity. An individual may resort to self-protection when he
or she reasonably believes it necessary to defend against an immediate attack. The amount of force
is limited to that reasonably believed to be necessary. Courts have struggled with how to treat a
situation in which an individual may avoid resorting to deadly force by safely retreating or fleeing.
The principle of necessity dictates that every alternative should be exhausted before an individual
resorts to deadly force and that an individual should be required to retreat to the wall (as far as
possible). On the other hand, should an individual be required to retreat when confronted with a
violent wrongdoer? Should the law promote cowardice and penalize courage?
Virtually every jurisdiction provides that there is no duty or requirement to retreat before
resorting to nondeadly force. A majority of jurisdictions follow the same stand your ground rule
in the case of deadly force, although a “significant minority” of states require retreat to the wall.77
Most jurisdictions limit the right to “stand your ground” when confronted with nondeadly
force to an individual who is without fault, a true man. An aggressor employing nondeadly force
must clearly abandon the struggle, and it must be a withdrawal in good faith to regain the
right of self-defense. Some courts recognize that even an aggressor using deadly force may with-
draw and regain the right of self-defense. In these instances, the right of self-defense will limit
the initial aggressor’s liability to manslaughter and will not provide a perfect self-defense. A
withdrawal in good faith must be distinguished from a tactical retreat in which an individual
retreats with the intent of continuing the hostilities.
The requirement of retreat is premised on the traditional rule that only necessary force may
be employed in self-defense. The provision for retreat is balanced by the consideration that with-
drawal is not required when the safety of the defender would be jeopardized. The Castle Doctrine
is another generally recognized exception to the rule of retreat and provides that individuals inside
the home are justified in “holding their ground.” Aggressors are not entitled to rely on the Castle
Doctrine inside the home.78
New Jersey along with a minority of states requires that a co-occupant of the home retreat
before employing deadly force against another co-occupant.79 In 2009, the West Virginia Supreme
Court after considering the plight of the victims of domestic violence reversed the “no retreat rule”
for lawful occupants of a home confronting abuse. The court explained that women who flee the
home in many instances are “caught, dragged back inside, and severely beaten again. [Even i]f she
manages to escape, . . . [w]here will she go if she has no money, no transportation, and if her chil-
dren are left behind in the care of an enraged man?” The West Virginia Court also reasoned that it
was unfair that a woman attacked in the home by a stranger may stand her ground while a woman
who is attacked by her husband or partner must retreat.80
MPC Section 3.04(b)(ii) provides that deadly force is not justifiable in those instances in which
an individual “knows that he can avoid the necessity of using such force with complete safety by
retreating.” There is no duty to retreat under the MPC within the home or place of work unless an
individual is an aggressor.
Defense of Others
The common law generally limited the privilege of intervention in defense of others to the
protection of spouses, family, employees, and employers. This was based on the assumption that
an individual would be in a good position to evaluate whether these individuals were aggressors
or victims in need of assistance. Some state statutes continue to limit the right to intervene, but
this no longer is the prevailing legal rule. The Wisconsin statute provides that a person is justified
in “threatening or using force against another when . . . he or she reasonably believes that force
is necessary to defend himself or a third person against such other’s imminent use of unlawful
force.”
The early approach in the United States was the alter ego rule. This provides that an indi-
vidual intervening “stands in the shoes” of or possesses the “same rights” as the person whom he
or she is assisting. The alter ego approach generally has been abandoned in favor of the reasonable
person or objective test for intervention in defense of others of the MPC. Section 3.05
provides that an individual is justified in using force to protect another who he or she reasonably
believes (1) is in immediate danger and (2) is entitled under the MPC to use protective force in
self-defense, and (3) such force is necessary for the protection of the other person. An intervener is
not criminally liable under this test for a reasonable mistake of fact.
What is the difference between the alter ego rule and the objective test? Individuals interven-
ing under the alter ego rule act at their own peril. The person “in whose shoes they stand” may in
fact be an aggressor or may not possess the right of self-defense. The objective test, on the other
hand, protects individuals who act in a “reasonable,” but mistaken, belief.
Remember, you may intervene to protect another, but you are not required to intervene.
George Fletcher notes that the desire to provide protection to those who intervene on behalf of
others reflects the belief that an attack against a single individual threatens to erode the rule of law
that protects each and every individual.81
Defense of the Home

The home has historically been viewed as a place of safety, security, and shelter. The eighteenth-cen-
tury English jurist Lord Coke wrote that “[a] man’s house is his castle—for where shall a man be
safe if it be not his own house.” Coke’s opinion was shaped by the ancient Roman legal scholars
who wrote that “one’s home is the safety refuge for everyone.” The early colonial states adopted
the English common law right of individuals to use deadly force in those instances in which they
reasonably believe that force is required to prevent an imminent and unlawful entry. The common
law rule is sufficiently broad to permit deadly force against a rapist, burglar, or drunk who mistak-
enly stumbles into the wrong house on his or her way to a surprise birthday party.82
States gradually abandoned this broad standard and adopted statutes that restricted the use of
deadly force in defense of the home. There is no uniform approach today, and statutes typically
limit deadly force to those situations in which deadly force is reasonably believed to be required
to prevent the entry of an intruder who is reasonably believed to intend to commit “a felony” in
the dwelling. Other state statutes strictly regulate armed force and authorize deadly force only in
those instances in which it is reasonably believed to be required to prevent the entry of an intruder
who is reasonably believed to intend to commit a “forcible felony” involving the threat or use of
violence against an occupant.83 The first alternative would permit the use of deadly force against
an individual who is intent on stealing a valuable painting, whereas the second approach would
require that the art thief threaten violence or display a weapon.
The MPC balances the right to protect a dwelling from intruders against respect for human
life and provides that deadly force is justified in those instances that the intruder is attempting
to commit arson, burglary, robbery, other serious theft, or the destruction of property and has
demonstrated that he or she poses a threat by employing or threatening to employ deadly force.
Deadly force is also permissible under Section 3.06(3)(d)(ii)(A)(B) where the employment of non-
deadly force would expose the occupant to substantial danger of serious bodily harm.
The most controversial and dominant trend is toward so-called make my day laws that
authorize the use of “any degree of force” against intruders who “might use any physical force, no
matter how slight, against any occupant.”84
In State v. Anderson, the Oklahoma Court of Criminal Appeals stressed that under the state’s
make my day law, the occupant possesses unlimited discretion to employ whatever degree of force
he or she desires based “solely upon the occupant’s belief that the intruder might use any force
against the occupant.” In practice, this is a return to the original common law rule because a jury
would likely find reasonable justification to believe that almost any intruder poses at least a threat
of “slight” physical force against an occupant.85 The make my day law raises the issue of the proper
legal standard for the use of force in defense of the dwelling. Should a homeowner be required to
wait until the intruder poses a threat of serious harm?
What about the protection of property? An individual is entitled to employ reasonable and neces-
sary nondeadly force to protect property against a thief. Deadly force in protection of property is never
justifiable. A victim of a theft who acts “promptly” and engages in hot pursuit against an assailant
may use nondeadly force to recapture stolen property. Physical force generally may not be used by a
“rightful owner” to “recapture” property that has been stolen and carried away by the perpetrator.86
The Castle Doctrine in Florida

Florida statute Section 776.013 is enormously influential and contains several provisions that have
been followed by other states. A number of important provisions are reprinted below and are dis-
cussed in the Criminal Law and Public Policy feature.
776.013. Home protection; use of deadly force; presumption of fear of death or great
bodily harm.—
(1) A person is presumed to have held a reasonable fear of imminent peril of death or
great bodily harm to himself or herself or another when using defensive force that is
intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlaw-
fully and forcefully entering, or had unlawfully and forcibly entered, a dwelling,
residence, or occupied vehicle, or if that person had removed or was attempting

to remove another against that person’s will from the dwelling, residence, or occu-
pied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlaw-
ful and forcible entry or unlawful and forcible act was occurring or had occurred.
(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a
lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or
titleholder, and there is not an injunction for protection from domestic violence
or a written pretrial supervision order of no contact against that person; or
(3) A person who is not engaged in an unlawful activity and who is attacked in any other
place where he or she has a right to be has no duty to retreat and has the right to stand
his or her ground and meet force with force, including deadly force if he or she reason-
ably believes it is necessary to do so to prevent death or great bodily harm to himself
or herself or another or to prevent the commission of a forcible felony.
(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling,
residence, or occupied vehicle is presumed to be doing so with the intent to commit
an unlawful act involving force or violence.

In 2005, Florida passed a Castle Doctrine law, also or attack.” In the words of the spokesperson for the
popularly referred to as the stand your ground law, National Association of Criminal Defense Lawyers,
which expands the right of self-defense. In the last five “Most people would rather be judged by 12 (a jury)
years, roughly thirty-one states have adopted some or than carried by six (pallbearers).”
all provisions of the Florida law. These laws are inspired The Florida Castle Doctrine law modified the state’s
by the common law doctrine that authorizes individuals law of self-defense and has three central provisions.
to employ deadly force without the obligation to retreat
Public place. An individual in any location where he
against individuals unlawfully entering their home who
or she “has a right to be” and who is not engaged
are reasonably believed to pose a threat to inflict seri-
in criminal activity is presumed to be justified
ous bodily harm or death. Individuals under the Castle
in the use of deadly force or threatened use of
Doctrine laws possess the right to stand their ground
deadly force and has no duty to retreat and has
whether they are inside the home or in the curtilage
the right to stand his or her ground. The individ-
outside the home. The Florida stand your ground law
ual must reasonably believe that such force is
extends the right to stand your ground to individuals
required to prevent imminent death or great bodily
outside the home.
harm or to prevent the imminent commission of a
The National Rifle Association (NRA) has been at
forcible felony to himself or herself or to another.
the forefront of the movement to persuade state legis-
Three questions are involved. Did the defendant
latures to adopt these Castle Doctrine laws. The NRA
have a right to be where he or she was located?
argues that it is time for the law to be concerned with
Was the defendant engaged in lawful activity? Was
the rights of innocent individuals rather than to focus
the defendant in reasonable fear of death or great
on the rights of offenders. The obligation to retreat
bodily harm?
before resorting to deadly force according to the NRA
restricts the ability of innocent individuals to defend Home. Individuals are presumed to be justified in
themselves against wrongdoers. The law of self-de- using deadly force against intruders who forcefully
fense places victims in the position of having to make and unlawfully enter their residence or automo-
a split-second decision about whether they are obli- bile. In the past under the Florida law, a jury when
gated to retreat and whether they are employing propor- confronted with a claim of self-defense by an indi-
tionate force. The preamble to the Florida law states vidual in the home who employed deadly force was
that “no person . . . should be required to surrender asked to decide whether the defendant reasonably
his or her personal safety to a criminal . . . nor . . . be believed that an intruder threatened death or seri-
required to needlessly retreat in the face of intrusion ous bodily injury. Under the new Florida law, the
issue is whether an intruder forcibly and unlawfully Number of cases. The stand your ground law is
entered the defendant’s home. being applied in a growing number of cases. The
Tampa Bay Times database of nonfatal cases
Immunity. Individuals who are authorized to use
increased five times between 2008 and 2011.
deadly force are immune from criminal prosecu-
Several hundred defendants are invoking the
tion and civil liability.
law each year. As a result, the court system is
overburdened with expensive and time-consum-
Prosecutors after reviewing a case may decide
ing cases. On the other hand, individuals who
against bringing charges despite a police decision to
acted in justifiable self-defense are able to avoid
arrest an individual because the prosecutor concludes
prosecution.
that the individual has a valid claim of self-defense.
Claims of self-defense are adjudicated in a preliminary Acquittal. As of July 2012, 67 percent of defen-
hearing in which the assailant is required to establish dants who invoked the law went free.
self-defense by a preponderance of the evidence. The
Background. Individuals with “records of crime and
immunity provision prevents an individual who pos-
violence . . . have benefited most from the . . .
sesses a credible claim of self-defense from being
law”: In the study of one hundred fatal stand your
brought to trial in criminal or civil court. The failure of
ground cases, more than thirty of the defendants
a court to find that a defendant is immune from pros-
had been accused of violent crimes, and 40 per-
ecution may be appealed. The individual whose claim
cent had three or more arrests.
is rejected in a preliminary hearing also may seek a
plea bargain or rely on self-defense at trial. In some Race. Individuals asserting self-defense against
instances, the stand your ground law may influence African Americans were more successful than indi-
the decision making of jurors despite the fact that the viduals who relied on self-defense against assail-
defense does not explicitly rely on the law. ants of other races. Of individuals who killed an
The St. Petersburg Times studied ninety-three African American, 73 percent were not punished
Florida cases between 2005 and 2010 involving claims as compared to 59 percent of individuals killing
of self-defense and found that in well over half of these an individual of another race. The race of the
cases, either individuals claiming self-defense were not defendant appears to play little role in the result
charged with a crime, or the charges were dropped by of cases. Proponents of the law claim that African
prosecutors or dismissed by a judge before trial. American offenders are more likely to be armed.
The central criticism of stand your ground laws is
that the laws create a climate in which people will resort Age. In February 2014, the Tampa Bay Times
to deadly force in situations in which they previously reported that 19 percent of stand your ground
may have avoided armed violence. This, according to cases resulted in the deaths of children or teens.
critics, threatens to turn communities into “shooting Another 14 percent involved individuals who were
galleries” reminiscent of the “old West” in which a sig- either twenty or twenty-one.
nificant percentage of people feel the need to carry
firearms. Since the passage of the Florida law in 2005, The Tampa Bay Times notes that although stand
the number of individuals with concealed-carry permits your ground generally is applied in a responsible fash-
has increased three times to 1.1 million permits. ion by Florida prosecutors, there are a number of sim-
There is evidence that in stand your ground states ilar cases treated differently by local prosecutors. The
roughly 8 percent or six hundred more homicides have newspaper also found cases that make a “mockery” of
been committed than otherwise would be expected. the law. “In nearly a third of the cases . . . defendants
Researchers speculate that this results from the [who] initiated the fight, shot an unarmed person or
fact that ordinary interpersonal conflicts escalate pursued their victim . . . still went ‘free.’”
into violent confrontations. This in turn has led to an In 2006, Jason Rosenbloom was shot by his
increase in the number of cases in which individuals neighbor Kenneth Allen in the doorway to Allen’s home.
claim that the violence was justified on the grounds of Allen had complained about the amount of trash that
self-defense. Rosenbloom was putting out to be picked up by the
The Tampa Bay Times has compiled a database trash collectors. Rosenbloom knocked on Allen’s door,
of stand your ground cases and has published several and the two engaged in a shouting match. Allen claimed
informative studies. Because of the failure of locali- that Rosenbloom prevented Allen from closing the door
ties to keep accurate records, there is no fully accurate to his house with his foot and that Rosenbloom tried to
compilation of cases. Among the most important find- push his way inside the house. Allen shot the unarmed
ings are these: Rosenbloom in the stomach and then in the chest.
(Continued)
(Continued)
Allen claimed that he was afraid and that “I have a Stand your ground cases have been equally con-
right . . . to keep my house safe.” troversial in other states. In 2015, Wayne Burgarello,
The case came down to a “swearing contest” seventy-four, was acquitted by a Nevada jury for firing
between Rosenbloom and Allen. Allen claimed that five shots and killing one intruder and seriously wound-
the unarmed Rosenbloom “unlawfully” and “forcibly” ing another intruder, both of whom were breaking into a
attempted to enter his home. Rosenbloom’s entry cre- vacant rental unit. Burgarello was tired of the burglary
ated a presumption that Allen acted under reasonable and vandalism of the empty rental unit and had lain in
fear of serious injury or death, and the prosecutors did wait for the intruders.
not pursue the case. Under the previous law, the pros- A Nevada jury rejected a stand your ground
ecution may have attempted to establish that Allen defense by Markus Kaarma who baited an intruder by
unlawfully resorted to deadly force because he lacked placing a purse in an open garage. After being alerted
a reasonable fear that the unarmed Rosenbloom by motion sensors that an intruder was entering the
threatened serious injury or death. garage, Kaarma killed the seventeen-year-old burglar
The Florida stand your ground law became the topic with four shots from a pump action shotgun. The jury
of intense national debate when George Zimmerman, a rejected Kaarma’s defense that he was protecting
neighborhood watch coordinator, was acquitted of the his home, and he was sentenced to seventy years of
second-degree murder of seventeen-year-old Trayvon imprisonment.
Martin. The controversy over stand your ground was In Montana, in September 2012, Dan Fredenberg
further fueled by the conviction of Michael Dunn for was fatally shot by Brice Harper. Fredenberg suspected
the killing of seventeen-year-old Jordan Davis stem- that Harper was having an affair with Fredenberg’s wife.
ming from Dunn’s complaint that Davis and his friends The unarmed Fredenberg decided to confront Harper
were playing music too loudly. Judge Russell Healey and was shot dead by Harper as he entered Harper’s
in sentencing Dunn to life imprisonment stated that garage. Dan Corrigan, the local prosecutor, concluded
this “exemplifies that our society seems to have lost that Harper had been justified in killing Fredenberg
its way. . . . We should remember that there’s nothing under the Montana stand your ground law and decided
wrong with retreating and deescalating the situation.” against pressing charges. Corrigan explained, “You
Despite the controversy over the provisions of the don’t have to claim that you were afraid for your life.
Florida law, a Florida gubernatorial task force reported You just have to claim that he [the assailant] was in the
in 2012 that the Castle Doctrine law has been effec- house illegally. If you think someone’s going to punch
tive in protecting citizens and in inspiring confidence in you in the nose or engage you in a fistfight, that’s suffi-
the criminal justice system and should be retained as cient grounds to engage in lethal force.” Do you believe
part of the Florida criminal code. it is time to reconsider stand your ground laws?
Execution of Public Duties

The enforcement of criminal law requires that the police detain, arrest, and incarcerate individuals
and seize and secure property. This interference with life, liberty, and property would ordinarily
constitute a criminal offense. The law, however, provides a defense to individuals executing public
duties. This is based on a judgment that the public interest in the enforcement of the law justifies
intruding on individual liberty.
In 1985, the U.S. Supreme Court reviewed the fleeing felon rule in Tennessee v. Garner. The
case was brought under a civil rights statute by the family of the deceased who was seeking mon-
etary damages for deprivation of the “rights . . . secured by the Constitution,” 42 U.S.C. § 1983.
The Supreme Court determined that the police officer violated Garner’s Fourth Amendment right
to be free from “unreasonable seizures.” Although this was a civil rather than criminal decision,
the judgment established the standard to be employed in criminal prosecutions against officers
charged with the unreasonable utilization of deadly force.87
When the officer has probable cause to believe that the suspect poses a threat of serious physi-
cal harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape
by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is proba-
ble cause to believe that he or she has committed a crime involving the infliction or threatened
infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if,
where feasible, some warning has been given.
Justice Sandra Day O’Connor in dissent wrote that “I cannot accept the majority’s creation of a
constitutional right to flight for burglary suspects seeking to avoid capture at the scene of the crime.”
The U.S. Supreme Court in three “high speed pursuit” decisions affirmed the reasonableness
of police officers’ use of deadly force and other methods that pose a high likelihood of serious
injury or death to halt a “fleeing motorist” so as to protect innocent members of the public who
are placed at risk by the “fleeing motorist.”88
The use of deadly force by the police became an issue of heated debate in August 2015
when Officer Darren Wilson of the Ferguson, Missouri, Police Department (FPD) shot and killed
unarmed African American teenager Michael Brown. A St. Louis County, Missouri, grand jury after
hearing evidence from sixty witnesses over the course of three months voted against indicting
Officer Wilson for murder. In the aftermath of the grand jury decision, the Criminal Section of
the Department of Justice Civil Rights Division initiated an investigation into Brown’s death and
concluded that Wilson had not violated the federal criminal statute, 18 U.S.C. § 242, which pro-
hibits an individual under color of law (e.g., Officer Wilson) from willfully subjecting any person
(e.g., Brown) to the deprivation of his or her constitutional rights or rights under the laws of the
United States.
Read Tennessee
v. Garner on the
Resisting Unlawful Arrests study site: study
English common law recognized the right to resist an unlawful arrest by reasonable force. The U.S. .sagepub.com/
lippmaness2e.
Supreme Court, in John Bad Elk v. United States in 1900, ruled that “[i]f the officer had no right to
arrest, the other party might resist the illegal attempt to arrest him, using no more force than was
absolutely necessary to repel the assault constituting the attempt to arrest.”89 In 1948, the U.S.
Supreme Court affirmed that “[o]ne has an undoubted right to resist an unlawful arrest . . . and
courts will uphold the right of resistance in proper cases.”90
The English common law rule that authorizes the right to resist an unlawful arrest by reason-
able force was recognized as the law in forty-five states as late as 1963. The Mississippi Supreme
Court proclaimed in State v. King that “every person has a right to resist an unlawful arrest; and, in
preventing such illegal restraint of his liberty, he may use such force.”91 Today, only twelve states
continue to recognize the English rule for resistance to an unlawful arrest. Thirty-eight
states have now abandoned the right to resist arrest—known as the American rule for resis-
tance to an unlawful arrest.
The abandonment of the recognition of the right to resist by an overwhelming majority of
states and by the MPC is because the rule no longer is thought to make much sense. Individuals
and the police often are heavily armed, and a violent exchange imperils the public. The common
law rule reflected the fact that imprisonment, even for brief periods, subjected individuals to a
“death trap” characterized by disease, hunger, and violence. However, today individuals who are
arrested have access to a lawyer, and to release on bail while awaiting trial. Incarcerated individu-
als are no longer subjected to harsh, inhuman, and disease-ridden prison conditions that result in
illness and death.92
Keep in mind that individuals continue to retain the right of self-defense to resist a police
officer’s application of unnecessary and unlawful force in executing arrest. Judges reason that indi-
viduals are not adequately protected against the infliction of death or serious bodily harm by the
ability to bring a civil or criminal case charging the officer with the application of excessive force.93
The Legal Equation

A lawful or unlawful arrest = resistance by physical force.
Excessive force in an arrest = proportionate self-defense.
DEFENSES BASED ON
GOVERNMENTAL MISCONDUCT
Individuals who are pressured, tricked, or coerced into committing a crime can rely on the defense
of entrapment.
Entrapment
American common law did not recognize the defense of entrapment. The fact that the govern-
ment entrapped or induced a defendant to commit a crime was irrelevant in evaluating a defen-
dant’s guilt or innocence.
The development of the defense is traced to the U.S. Supreme Court’s 1932 decision in Sorrells
v. United States. In Sorrells, an undercover agent posing as a “thirsty tourist” struck up a friendship
with Sorrells and was able to overcome Sorrells’s resistance and persuaded him to locate some
illicitly manufactured alcohol. Sorrells’s conviction for illegally selling alcohol was reversed by the
U.S. Supreme Court.94
The decision in Sorrells defined entrapment as the “conception and planning of an offense
by an officer, and his procurement of its commission by one who would not have perpetrated it
except for the trickery, persuasion, or fraud of the officer.” The essence of entrapment is the gov-
ernment’s inducement of an otherwise innocent individual to commit a crime. Decisions have
clarified that the prohibition on entrapment extends to the activities of undercover government
agents, confidential informants, and private citizens acting under the direction of law enforcement
personnel. The defense has been raised in cases involving prostitution; the illegal sale of alcohol,
cigarettes, firearms, and narcotics; and public corruption. There is some indication that the defense
may not be invoked to excuse a crime of severe violence.
There are good reasons for the government to rely on undercover strategies:
•• Crime Detection. Certain crimes are difficult to investigate and to prevent without infor-
mants. These include narcotics, prostitution, and public corruption.
•• Resources. Undercover techniques, such as posing as a buyer of stolen goods, can result in a
significant number of arrests without expending substantial resources.
•• Deterrence. Individuals will be deterred from criminal activity by the threat of government
involvement in the crime.
Entrapment is also subject to criticism:
•• The government may “manufacture crime” by individuals who otherwise may not engage
in such activity.
•• The government may lose respect by engaging in lawbreaking.
•• The informants who infiltrate criminal organizations may be criminals whose own criminal
activity often is overlooked in exchange for their assistance.
•• Innocent individuals are often approached in order to test their moral virtue by determining
whether they will engage in criminal activity. They likely would not commit a crime were
they not approached.
The Law of Entrapment

In developing a legal test to regulate entrapment, judges and legislators have attempted to balance
the need of law enforcement to rely on undercover techniques against the interest in ensuring that
innocent individuals are not pressured or tricked into illegal activity. As noted by Chief Justice Earl
Warren in 1958, “a line must be drawn between the trap for the unwary innocent and the trap for
the unwary criminal.”95
There are two competing legal tests for entrapment that are nicely articulated in the 1958 U.S.
Supreme Court case of Sherman v. United States. Sherman’s conviction on three counts of selling
illegal narcotics was overturned by the Supreme Court; and the facts, in many respects, illustrate
the perils of government undercover tactics. Kalchinian, a government informant facing criminal
charges, struck up a friendship with defendant Sherman. They regularly talked during their visits
to a doctor who was assisting both of them to end their addiction to narcotics. Kalchinian eventu-
ally was able to overcome Sherman’s resistance and persuaded him to obtain and to split the cost
of illegal narcotics.96
The U.S. Supreme Court unanimously agreed that Sherman had been entrapped. Five judges
supported a subjective test for entrapment, and four supported an objective test. The federal govern-
ment and a majority of states follow a subjective test, whereas the MPC and a minority of states
rely on an objective test. Keep in mind that the defense of entrapment was developed by judges,
and the availability of this defense has not been recognized as part of a defendant’s constitutional
right to due process of law. Entrapment in many states is an affirmative defense that results in the
burden being placed on the defendant to satisfy a preponderance of the evidence standard. Other
states require the defendant to produce some evidence, and then they place the burden on the
government to rebut the defense beyond a reasonable doubt.97
The Subjective Test

The subjective test focuses on the defendant and asks whether the accused possessed the criminal
intent or “predisposition” to commit the crime or whether the government “created” the offense.
In other words, “but for” the actions of the government, would the accused have broken the law?
Was the crime the “product of the creative activity of the government” or the result of the defen-
dant’s own criminal design?
The first step is to determine whether the government induced the crime. This requires that
the undercover agent or informant persuade or pressure the accused. A simple offer to sell or to
purchase drugs is a “mere offer” and does not constitute an “inducement.” In contrast, an induce-
ment involves appeals to friendship, compassion, promises of extraordinary economic or material
gain, sexual favors, or assistance in carrying out the crime.
The second step is the most important and involves evaluating whether the defendant pos-
sessed a “predisposition” or readiness to commit the crime with which he or she is charged. The
law assumes that a defendant who is predisposed is ready and willing to engage in criminal con-
duct in the absence of governmental inducements and, for this reason, is not entitled to rely on
the defense of entrapment. In other words, the government must direct its undercover strategy
against the unwary criminal rather than the unwary innocent. How is predisposition established?
A number of factors are considered98:
•• the character or reputation of the defendant, including prior criminal arrests and convic-
tions for the type of crime involved;
•• whether the accused suggested the criminal activity;
•• whether the defendant was already engaged in criminal activity for profit;
•• whether the defendant was reluctant to commit the offense; and
•• the attractiveness of the inducement.
In Sherman, the purchase of the drugs was initiated by the informant, Kalchinian, who over-
came Sherman’s initial resistance and persuaded him to obtain drugs. Kalchinian, in fact, had insti-
gated two previous arrests and was facing sentencing for a drug offense himself. The two split the
costs. There is no indication that Sherman was otherwise involved in the drug trade, and a search
failed to find drugs in his home. Sherman’s nine-year-old sales conviction and five-year-old pos-
session conviction did not indicate that he was ready and willing to sell narcotics. In other words,
before Kalchinian induced Sherman to purchase drugs, he seemed to be genuinely motivated to
overcome his dependency on narcotics.
The underlying theory is that the jury, in evaluating whether the defendant was entrapped, is
merely carrying out the intent of the legislature. The “fiction” is that the legislature did not intend
for otherwise innocent individuals to be punished who were induced to commit crimes by gov-
ernment trickery and pressure. The issue of entrapment under the subjective test is to be decided
by the jury.
The Objective Test

The objective test focuses on the conduct of the government rather than on the character of the defendant.
Justice Felix Frankfurter, in his dissenting opinion in Sherman, explained that the crucial question
is “whether police conduct revealed in the particular case falls below standards to which common
feelings respond, for the proper use of governmental power.” The police, of course, must rely on
undercover work, and the test for entrapment is whether the government, by offering induce-
ments, is likely to attract those “ready and willing” to commit crimes “should the occasion arise”
or whether the government has relied on tactics and strategies that are likely to attract those who
“normally avoid crime and through self-struggle resist ordinary temptations.”
The subjective test focuses on the defendant; the objective test focuses on the government’s
conduct. Under the subjective test, if an informant makes persistent appeals to compassion
and friendship and then asks a defendant to sell narcotics, the defendant has no defense if he is
predisposed to selling narcotics. Under the objective test, there would be a defense because the con-
duct of the police, rather than the predisposition of the defendant, is the central consideration.99
Justice Frankfurter wrote that public confidence in the integrity and fairness of the govern-
ment must be preserved and that government power is “abused and directed to an end for which
it was not constituted when employed to promote rather than detect crime and to bring about the
downfall of those who, left to themselves, might well have obeyed the law.”100 These unacceptable
methods lead to a lack of respect for the law and encourage criminality. Frankfurter argued that
judges must condemn corrupt and uncivilized methods of law enforcement even if this judgment
may result in the acquittal of the accused. Frankfurter criticized the predisposition test for provid-
ing protection for “innocent defendants,” while permitting the government to employ various
unethical strategies and schemes against defendants who are predisposed.
In Sherman, Frankfurter condemned Kalchinian’s repeated requests that the accused assist him
to obtain drugs. He pointed out that Kalchinian took advantage of Sherman’s susceptibility to
narcotics and manipulated Sherman’s sympathetic response to the pain Kalchinian was allegedly
suffering in withdrawing from drugs. The Sherman and Sorrells cases suggest that practices prohib-
ited under the objective test include
•• taking advantage of weaknesses;

•• repeated appeals to friendship and sympathy;
•• promising substantial economic gain;
•• pressure or threats;
•• providing the equipment required for carrying out a crime; and
•• false representations designed to induce a belief that the conduct is not prohibited.
Critics complain that the objective test has not resulted in clear and definite standards to
guide law enforcement. Can you determine at what point Kalchinian crossed the line? Critics also
charge that it makes little sense to acquit a defendant who is “predisposed” based on the fact that a
“mythical innocent” individual may have been tricked into criminal activity by the government’s
tactics. However, the objective test was adopted by the MPC, which follows Justice Frankfurter
in assigning the determination of entrapment to judges rather than juries based on the fact that
judges are responsible for safeguarding the integrity of the criminal justice process.
The Entrapment Defense

In the past, a disadvantage of pleading entrapment was that a defendant was required to admit
that he or she was entrapped by the government into committing a crime. A defendant who was
unsuccessful in pleading entrapment would be found guilty. The Supreme Court has recognized
that in the federal judicial system, a defendant may assert “inconsistent defenses,” both relying on
entrapment and denying guilt. State courts take different approaches to this issue.101
We might question whether courts should be involved in evaluating law enforcement tactics
and in acquitting individuals who are otherwise clearly guilty of criminal conduct. Can innocent
individuals really be pressured into criminal activity? Do we want to limit the ability of the police
to use the techniques they believe are required to investigate and punish crime? There also appear
to be no clear judicial standards for determining predisposition under the subjective test and for
evaluating acceptable law enforcement tactics under the objective test. This leaves the police with-
out a great deal of guidance or direction. On the other hand, we clearly are in need of a legal mech-
anism for preventing government abuse.
In recent years, the Bureau of Alcohol, Tobacco, Firearms and Explosives has relied on a contro-
versial undercover “sting operation” to combat the drug trade. An informant involved in the drug
trade approaches individuals and tells them that there is a loosely guarded stash house in which
drugs are stored. As the individuals approach the stash house, they are arrested by federal agents
and charged with various firearms and narcotics offenses. This tactic has resulted in the arrest of
nearly one thousand individuals.
The Legal Equation

Subjective test = Government inducement
+ defendant is not predisposed to commit the crime.

Objective test = olice conduct falls below standards to which common
P
feelings respond
+ induces crime by those who normally avoid criminal activity.
You Decide 6.8 Detective Jason Leavitt of the would not give Miller any money. “Miller then pulled
Las Vegas Police Department was Detective Leavitt closer to him, quickly reached
disguised as an “intoxicated his hand into Detective Leavitt’s pocket, and took
vagrant.” Twenty one-dollar bills the twenty dollars. Miller then loosened his grip on
were placed in his pocket and were Detective Leavitt and again asked for money. Detective
visible to anyone standing close to him. Leavitt’s words Leavitt said that he could not give Miller any money
and actions were monitored by other officers. because his money was gone.” Miller was arrested and
Appellant Richard Miller, who was walking south- charged with larceny.
bound on Main Street, approached Detective Leavitt May Miller successfully rely on the entrapment
and asked him for money. Leavitt responded that he defense? See Miller v. State, 110 P.3d 53 (Nev. 2005).
NEW DEFENSES
The criminal law is based on the notion that individuals are responsible and accountable for their
decisions and subject to punishment for choosing to engage in morally blameworthy behavior. Read United States
We have reviewed a number of circumstances in which the law has traditionally recognized that v. Jacobsen on the
individuals should be excused and should not be held fully responsible. In the last decades, medi- study site: study
cine and the social sciences have expanded our understanding of the various factors that influence .sagepub.com/
human behavior. This has resulted in defendants’ offering various new defenses that do not easily lippmaness2e
fit into existing categories. These defenses are not firmly established and have yet to be accepted
by judges and juries. Most legal commentators dismiss the defenses as “quackery” or “science” and
condemn these initiatives for undermining the principle that individuals are responsible for their
actions.
One of the foremost critics is Professor Alan Dershowitz of Harvard Law School, who has
pointed to fifty “abuse excuses.” Dershowitz defines an abuse excuse as a legal defense in which
defendants claim that the crimes with which they are charged result from their own victimiza-
tion and that they should not be held responsible. Examples are the “battered wife” and “bat-
tered child syndromes.”102 A related set of defenses are based on the claim that the defendant’s
biological or genetic heredity caused him or her to commit a crime. George Fletcher has warned
that these types of defenses could potentially undermine the assumption that all individuals are
equal and should be rewarded or punished based on what they do, not on who they are. On the
other hand, proponents of these new defenses argue that the law should evolve to reflect new
intellectual insights.103
Some New Defenses

Four examples of biological defenses are as follows:
• XYY Chromosome. This is based on research that indicates that a large percentage of male
prison inmates possess an extra Y chromosome that results in enhanced “maleness.” (Each fetus
has two sex chromosomes, one of which is an X. A female has two X chromosomes; a male, a Y
and an X chromosome.) A Maryland appeals court dismissed a defendant’s claim that his robbery
should be excused based on the presence of an extra Y masculine chromosome that allegedly made
it impossible for him to control his antisocial and aggressive behavior.104
• Premenstrual Syndrome (PMS). Many women experience cramps, nausea, and discomfort prior
to menstruation. PMS has been invoked by defendants who contend that they suffered from severe
pain and distress that drove them to act in a violent fashion. Geraldine Richter was detained by
an officer for driving while intoxicated, and she verbally attacked and threatened the officer and
kicked the Breathalyzer. A Fairfax County, Virginia, judge acquitted Richter of driving while intox-
icated, resisting arrest, and other charges after an expert testified that her premenstrual condition
caused her to absorb alcohol at an abnormally rapid rate.105
• Postpartum Psychosis. This is caused by a drop in the hormonal level following the birth of a
child. The result can be depression, suicide, and in its extreme manifestations delusions, halluci-
nations, and violence. Stephanie Molina reportedly was a happy and outgoing young woman who
suffered severe depression and a paranoid fear of being killed. She subsequently killed her child,
attempted suicide, and made an effort to burn her house down. A California appellate court ruled
that the jury should have been permitted to consider evidence of Molina’s condition in evaluating
her guilt for the intentional killing of her child.106
• Environmental Defense. The Massachusetts Supreme Judicial Court rejected a defendant’s

effort to excuse a homicide based on the argument that the chemicals he used in lawn care work
resulted in involuntary intoxication and led him to violently respond to a customer’s complaint.107
• Brainwashing. Brainwashing is an example of a psychological defense in which an individual

claims to have been placed under the mental control of others and to have lost the capacity to
make independent decisions. A well-known example is newspaper heiress Patricia Hearst who, in
1974, was kidnapped by a small terrorist group, the Symbionese Liberation Army (SLA). Several
months later, she entered a bank armed with a machine gun and assisted the group in a robbery.
Hearst testified at trial that she had been abused and brainwashed by the SLA and had been pro-
grammed to assume the identity of “Tanya the terrorist.” The jury dismissed this claim and con-
victed Hearst.
• Post-Traumatic Stress Disorder (PTSD). PTSD is another example of a psychological defense.

A Tennessee Court of Appeals ruled that a veteran of the Desert Shield and Desert Storm military
campaigns, who recently had returned to the United States, should be permitted to introduce evi-
dence demonstrating that his wartime experiences led him to react in an emotional and violent
fashion to his wife’s romantic involvement with the victim.108
Defendants relying on sociological defenses claim that their life experiences and environment
have caused them to commit crimes. These include the following:
• Black Rage. Colin Ferguson, a thirty-five-year-old native of Jamaica, in December 1993,

boarded a commuter train in New York City and embarked on a shooting spree against Caucasian
and Asian passengers that left six dead and nineteen wounded. The police found notes in which
Ferguson expressed a hatred for these groups as well as for “Uncle Tom Negroes.” His lawyer
announced that Ferguson would offer the defense of extreme racial stress precipitated by the
destructive racial treatment of African Americans. Ferguson ultimately represented himself at trial
and did not raise this defense, which nonetheless has been the topic of substantial discussion and
debate.109
• Urban Survivor. Daimion Osby, a seventeen-year-old student, shot and killed two unarmed
cousins who had been demanding that Osby provide them with the opportunity to win back the
money they had lost to him while gambling. At one point, a white pickup apparently belonging to
one of the cousins pulled alongside Osby’s automobile, and a rifle barrel was allegedly pointed out
the window. Two weeks later, the same truck approached and Osby shot and killed the occupants,
Marcus and Willie Brooks, neither of whom were armed. The defense offered the “urban survivor
defense” during Osby’s first trial. This resulted in a hung jury. He then was retried and convicted.
The defense unsuccessfully appealed the fact that Osby was prohibited from introducing experts
supporting his claim of the “urban survivor syndrome” at the second trial. The “urban survivor
defense” consists of the contention that young people living in poor and violent urban areas do
not receive adequate police protection and develop a heightened awareness and fear of threats.110
• Media Intoxication. Defendants have claimed that their criminal conduct is caused by “intox-
ication” from television and pornography. Ronald Ray Howard, nineteen, unsuccessfully argued in
mitigation of a death sentence that he had killed a police officer while listening to “gangsta rap.”111
• Rotten Social Background. In United States v. Alexander, the defendant shot and killed a white
Marine who had uttered a racial epithet. The African American defendant claimed that he had shot
as a result of an irresistible impulse that resulted from his socially deprived childhood. Alexander’s
early years were marked by abandonment, poverty, discrimination, and an absence of love. This
“rotten social background” (RSB) allegedly created an irresistible impulse to kill in response to the
Marine’s remark. The U.S. Court of Appeals for the District of Columbia Circuit affirmed the trial
judge’s refusal to issue a jury instruction on RSB. Judge David Bazelon dissented and questioned
whether society had a right to sit in judgment over a defendant who had been so thoroughly
mistreated.112
• Agent Orange/PTSD. Defendant Bruce Franklin Jerrett was charged with first-degree murder,
breaking and entering, kidnapping, and armed robbery. Jerrett and his mother testified to six or
seven incidents following the Vietnam War in which he “blacked out,” and on one occasion he
attacked his sister. He attributed the incidents to the downward spiral of his health and to PTSD
as a result of having been exposed to the chemical Agent Orange. Following his blackouts, Jerrett
had no memory of what he had done. Jerrett appealed his conviction; and the North Carolina
Supreme Court overturned his conviction on the grounds that the jurors should have received an
instruction that if they found that the defendant suffered from PTSD and was unconscious at the
time of his crime, he should be acquitted.113
The Cultural Defense

Defendants in several cases have invoked the “cultural defense.” This involves arguing that a for-
eign-born defendant was following his or her culture and was understandably unaware of the
requirements of American law. Those in favor of the “cultural defense” argue that it is unrealistic
to expect that new immigrants will immediately know or accept American practices in areas as
important as the raising and disciplining of children. The acceptance of diversity, however, may
breed a lack of respect for the law among immigrant groups and lead Americans who are required
to conform to legal standards to believe that they are being treated unfairly. Judges and juries may
also lack the background to determine the authentic customs and traditions of various immigrant Read State v.
groups and may be forced to rely on expert witnesses to understand different cultures.114 Kargar on the
In State v. Kargar, the Maine Supreme Judicial Court held that the defendant, who had emi- study site: study
grated to the United States three years earlier, should not be held liable for gross sexual conduct .sagepub.com/
lippmaness2e.
because his kissing of his eighteen-month-old son in sensitive areas of his anatomy was part of his
cultural tradition.115
CASE ANALYSIS
In State v. Plueard, a Washington Appellate court decided whether Spenser James Plueard, when he
was under twelve years of age, knew that it was wrong to sexually molest his sisters.
Did Spenser James Plueard When He Was Under Twelve Years Old Know
That It Was Wrong to Sexually Molest His Sisters MKM and CLM?
State v. Plueard, No. 42167-4-II (Wash. Ct. App. Feb. 20, 2013)
Spenser James Plueard was born in November 1988. He probable cause to arrest . . . Plueard admitted several
lived with his grandparents and in foster care while his incidents of “touching” or “fondling” MKM before he
mother was in prison. In approximately 1998 or 1999, was 12 years old; but he denied having sexual inter-
when Plueard was around 10 years old, his mother course with her, and he denied touching CLM at all. . . .
regained custody of him, and he moved in with her, Plueard eventually admitted that there may have
his stepfather, and his two half sisters, MKM and CLM. been “more than one” touching incident. He specifi-
Shortly after moving in with his half sisters, Plueard cally recalled one incident during which he had gone
developed a “sexual attraction” for MKM, which he into MKM’s bedroom at night when he had believed
thought she also shared. When he was 10 years old no one else was present. According to Plueard, he and
and MKM was 5, he started going into her bedroom at MKM had talked for a while; eventually, MKM had
night, touching her body, and telling her that it was pulled down her pants and they had started fondling
“normal.” each other. Plueard had unzipped his zipper, pulled out
Plueard also touched his other half sister, CLM, his penis, and touched the outside of her vagina with
beginning in 2000 or 2001 on multiple occasions, his hand; but he denied having stuck his finger or his
when he was around 11 1/2 or 12 1/2 years old and penis inside her vagina. When the police asked why he
CLM was 8 or 9. Plueard also touched her vagina on had stopped before penetration, Plueard replied that
two occasions when they were driving in a car. This he remembered thinking at the time that their sexual
sexual contact occurred two or three times a week for contact was “wrong” but that it was like the song lyr-
a year. CLM eventually told Plueard that she would tell ics, “[T]his is so wrong, but it feels so right.” Plueard
on him, and he stopped touching her. also explained that he had shown MKM “sexual posi-
Later that year, in 2001, when Plueard was 13 years tions” when they were fully clothed and admitted that
old, his mother called Child Protective Services (CPS) he might have rubbed his penis against her vagina
and reported that he had touched MKM’s “privates.” “once or twice.”
CPS dismissed the charges against Plueard as a “you Plueard . . . estimated that he had fondled MKM
show me yours, I’ll show you mine” situation. Plueard “once a week” for “six months” when he was around
attended counseling after this incident. Despite this 10 years old and she was 5. He was adamant, however,
counseling, Plueard continued to touch MKM in a sex- that none of their sexual contact continued after he
ual manner, which grew more intense over time. was 11 years old because he was “very afraid of his
On a weekly basis between 2001 and 2007, when stepfather” after the “first incident came to light.” . . .
Plueard was 13 to 19 years old, he touched MKM’s The State charged Plueard with two counts of first
bare vagina with his hand and with his penis, and degree child molestation committed against CLM and
he began having sexual intercourse with her when MKM, respectively. Both counts included a charging
they were alone in her bedroom. Plueard repeatedly period when Plueard was under 12 years old: Count
threatened MKM not to tell anyone about their sexual I was based on Plueard’s sexual contact with CLM
contact because “CPS would take her away” and “no between May 21, 2000, and May 20, 2002, when
one would believe her.” He once became so angry at Plueard was between 11 1/2 and 13 1/2 years old.
MKM for threatening to tell on him that he hit her in Count II was based on Plueard’s sexual contact with
the face. Plueard last had sexual contact with MKM in MKM between December 6, 1999, and December 5,
2007, when he was around 19 years old. 2005, when Plueard was between 11 and 17 years old.
In 2010, when MKM went to the doctor for a yeast The trial court found Plueard guilty of both counts.
infection, she became very upset and did not want the When the superior court finds capacity under
doctor to examine her vagina. When her mother asked RCW 9A.04.0507 we review the record to determine
what was wrong, MKM disclosed that Plueard’s sexual whether there is substantial evidence establishing that
contact had continued after 2001 and the counseling. the State met its burden of overcoming the statutory
When MKM’s mother confronted Plueard about the presumption that children under 12 years of age are
sexual contact, he denied it. incapable of committing a crime. In order to overcome
Law enforcement and CPS were again contacted, the presumption of incapacity, the State must provide
and MKM and CLM underwent child forensic inter- clear and convincing evidence that the child had suffi-
views. After viewing a video recording of MKM’s foren- cient capacity both to understand the act and to know
sic interview, the police determined that they had that it was wrong.
Washington courts have held that the State carries contact with her was like the song lyrics, “[T]his is so
a greater burden of proving capacity when a juvenile wrong, but it feels so right.”
is charged with a sex crime and that it must present Plueard’s thinking “this is so wrong, but it feels
a higher level of proof that the child understood the so right” differs from the “after-the-fact” acknowl-
illegality of his act. edgement that the Washington Supreme Court held
Nevertheless, the State need not prove that the insufficient to show that a child knew his act was
child understood the act’s legal consequences—that wrong in J.P.S. [In that case,] JPS, a child with cogni-
the act would be punishable under the law. Instead, the tive disabilities, admitted, “‘I know it was bad and I
focus is on “‘whether the child appreciated the quality feel really guilty about it,’” only after he was inter-
of his . . . acts at the time the act was committed.’” rogated by the police three times over a month-long
Substantial evidence supports the trial court’s period and was shunned by his neighbors and class-
determination that Plueard understood his acts were mates. The Supreme Court held that this admission
wrong before age 12. . . . His admissions during the alone was insufficient to overcome the presump-
police interview summary provided evidence of his tion of incapacity by clear and convincing evidence
knowledge that this sexual contact was wrong and because it was not particularly probative of what
support the following . . . factors: (1) Plueard fondled JPS knew at the time of his conduct. In contrast,
MKM when he was around 10 or 11 years old, close Plueard’s statement provided insight into what he
to the age of 12, when capacity is presumed; (2) he was thinking as he was engaging in sexual contact
admitted fondling MKM late one evening when he with MKM, namely that it was “wrong” but it felt
believed no one else was around, suggesting his desire “right” to him.
for secrecy; (3) he stated that although he could not We hold, therefore, that substantial evidence sup-
remember whether he had threatened MKM not to ports (1) the trial court’s finding that Plueard knew
tell their parents, it “wouldn’t surprise him” if he had his sexual contact was wrong when he committed his
because he knew his parents would “get mad”; and sexual acts before age 12, and (2) its conclusion that
(4) he spontaneously described having thought while Plueard had capacity to commit the charged child
fondling MKM several years earlier that his sexual molestation crimes before he turned 12 years old.
CHAPTER SUMMARY
Excuses comprise a broad set of defenses in which The diminished capacity defense permits defen-
defendants claim a lack of responsibility for their dants to introduce evidence of mental defect or disease
criminal acts. This lack of “moral blameworthiness” is to negate a required criminal intent. This typically is
based on a lack of criminal intent or on the involun- limited to murder. Other defenses based on a lack of a
tary nature of the defendant’s criminal act. capacity to form a criminal intent include the following:
Justification defenses provide that acts that ordi-
narily are criminal are justified and carry no criminal •• Age. The common law and various state statutes
liability under certain circumstances. This is based on divide age into three distinct periods. Infancy
the reasoning that a violation of the law under these is an excuse (younger than seven at common
conditions promotes important social values, advances law). There is a rebuttable presumption that
the social welfare, and is encouraged by society. adolescents in the middle period lack the capac-
The M’Naghten “right–wrong” formula is the pre- ity to form a criminal intent (between seven
dominant test for legal insanity. The criminal justice and fourteen at common law). Individuals older
system has experimented with broader approaches than fourteen are considered to have the same
that resulted in a larger number of defendants being capacity as adults.
considered legally insane. •• Intoxication. Voluntary intoxication is recog-
nized as a defense to a criminal charge requiring
•• Irresistible Impulse. Emotions cause loss of con- a specific intent. The trend is for abolition of the
trol to conform behavior to the law. excuse of voluntary intoxication. Involuntary
•• Durham Product Test. The criminal act was the intoxication is a defense where, as a result of
product of a mental disease or defect. alcohol or drugs, the individual meets the stan-
•• Substantial Capacity. The defendant lacks sub- dard for legal insanity in the jurisdiction.
stantial (not total) capacity to distinguish right
from wrong or to conform his or her behavior A number of defenses were discussed under
to the law. the category of justification and excuse defenses.
A defendant who commits a crime under a reason- based on the fact that the state and federal govern-
able belief that he or she is threatened with imminent ments provide effective criminal and civil remedies for
serious physical harm or death is excused from cul- the abuse of police powers.
pability based on the defense of duress. Necessity or Entrapment is a defense based on “governmental
“choice of evils” justifies illegal acts that alleviate an misconduct.” Entrapment asks whether the govern-
imminent and greater harm. The defense of consent ment “implanted a criminal intent” in an otherwise
is recognized in certain isolated instances in which innocent individual. The subjective approach to
the defendant’s criminal conduct advances the social entrapment focuses on the defendant. This version
welfare. These include incidental contact, sports, and of the defense requires proof that the government
medical procedures. The defense of mistake falls into induced an individual who lacked a criminal predis-
two categories. position to commit a crime. The objective test centers
A mistake of law is never a defense; a mistake of on the government. This test requires a judge to deter-
fact may be relied on to demonstrate a lack of a spe- mine whether the government’s conduct falls below
cific criminal intent. Some courts require that the mis- accepted standards and would have induced an oth-
take of fact be objectively reasonable. erwise innocent individual to engage in criminal con-
Another group of defenses justify the use of phys- duct. Courts have been reluctant to find that the Due
ical force. Self-defense preserves the right to life and Process Clause protects individuals against outrageous
bodily integrity of an individual confronting an immi- governmental misconduct.
nent threat of death or serious bodily harm. Individuals The new defenses surveyed illustrate the effort to
are also provided with the privilege of intervening to base excuses on new developments in biology, psy-
defend others in peril. Defense of the dwelling pre- chology, and sociology. Critics contend that many of
serves the safety and security of the home. The execu- these are “abuse excuses,” in which defendants manip-
tion of public duties justifies the acts of individuals in ulate the law by claiming that they are victims. On
the criminal justice system that ordinarily would be the other hand, defendants ask why some traits and
considered criminal. A police officer, for instance, may conditions are considered to excuse criminal activ-
use deadly force against a “fleeing felon” who poses an ity while factors such as poverty, inequality, or abuse
imminent threat to the police or to the public. are not recognized as a defense. The general trend is
The right to resist an illegal arrest is still recog- for the law to limit rather than to expand criminal
nized in several states, but it has been sharply curtailed excuses.
1. Distinguish the affirmative defenses of justifica- 9. Why do most state legal codes provide that an
tion and excuse. individual cannot consent to a crime? What are
the exceptions to this rule?
2. Define and distinguish between the four major
approaches to legal insanity. 10. List the elements of self-defense. Explain the sig-
3. Discuss the purpose of the diminished capacity nificance of reasonable belief, imminence, retreat,
defense. What is the result of the application of withdrawal, the Castle Doctrine, and defense of
the defense to a defendant charged with a crime others.
requiring a specific intent? 11. What are the two approaches to intervention in
4. Why did some states permit juries to return a ver- defense of another? Which test is preferable?
dict of GBMI?
12. What is the law pertaining to the defense of the
5. Distinguish between the defenses of voluntary home? Discuss the policy behind this defense.
and involuntary intoxication. Compare the laws pertaining to defense of habita-
6. Describe the common law defense of infancy. tion and self-defense.
How has this been modified under contemporary 13. Discuss the importance of the Florida Castle
statutes? Doctrine law.
7. What are the elements of the duress defense? 14. How does the rule regulating police use of deadly
8. What are the elements of the necessity defense? force illustrate the defense of execution of public
Provide some examples of the application of the duties? Does this legal standard “handcuff” the
defense. police?
15. Why have the overwhelming majority of states the relationship between these two tests for
abandoned the defense of resistance to an illegal entrapment and the due process approach.
arrest? Distinguish this from the right to resist
18. Provide some examples of the “new defenses.”
excessive force.
How do these differ from established criminal law
16. Discuss the difference between the mistake of law defenses? Do you agree that some of these defenses
and mistake of fact defenses. deserve to be criticized as “abuse excuses”?
17. What are the two tests of entrapment? How do 19. Write a brief essay outlining justification defenses.
these two tests differ from one another? Explain
LEGAL TERMINOLOGY
abuse excuse English rule for resistance to an mistake of law

unlawful arrest
affirmative defenses M’Naghten test
entrapment
aggressor necessity defense
excuses
alibi nondeadly force
fleeing felon rule
alter ego rule objective test for intervention in
guilty but mentally ill (GBMI) defense of others
American rule for resistance to an
unlawful arrest ignorantia legis non excusat perfect self-defense
burden of persuasion imperfect self-defense presumption of innocence
burden of production infancy rebuttal
case-in-chief insanity defense retreat
Castle Doctrine Insanity Defense Reform Act of retreat to the wall
1984
choice of evils self-defense
intervention in defense of others
civil commitment stand your ground rule
involuntary intoxication
competence to stand trial substantial capacity test
irresistible impulse test
deadly force tactical retreat
justification
diminished capacity true man
make my day laws
duress voluntary intoxication
mistake of fact
Durham product test withdrawal in good faith

7 HOMICIDE
Was Schnopps guilty of first-degree Learning Objectives

murder or voluntary manslaughter,
murder in the heat of passion? 1. Understand the development of the common
law of homicide and the historical distinction
On the day of the killing, Schnopps had asked his wife between murder and manslaughter.
to come to their home and talk over their marital difficul-
ties. Schnopps told his wife that he wanted his children 2. Describe the actus reus of homicide.
at home, and that he wanted the family to remain intact. 3. Know the elements of first-degree premedi-
Schnopps cried during the conversation, and begged his tated murder.
wife to let the children live with him and to keep their fam-
ily together. His wife replied, “No, I am going to court, you 4. Understand the characteristics of capital and
are going to give me all the furniture, you are going to have aggravated first-degree murder.
to get the Hell out of here, you won’t have nothing.” Then,
5. Know the difference between first- and sec-
pointing to her crotch, she said, “You will never touch this
again, because I have got something bigger and better ond-degree murder.
for it.” 6. List the elements of depraved heart murder.
On hearing those words, Schnopps claims that his
mind went blank, and that he went “berserk.” He went to 7. State the law of felony murder and compare
a cabinet and got out a pistol he had bought and loaded and contrast the agency theory of felony mur-
the day before, and he shot his wife and himself. . . . der with the proximate cause theory of criminal
Schnopps claims, however, that his wife’s admission of responsibility for felony murder.
adultery was made for the first time on the day of the kill-
8. State the elements of voluntary and involuntary
ing, and hence the evidence of provocation was sufficient
to trigger jury consideration of voluntary manslaughter manslaughter.
as a possible verdict. (Commonwealth v. Schnopps, 417 9. Explain misdemeanor manslaughter.
N.E.2d 1213 [Mass. 1981])
10. Know the differing views on when life begins for
In this chapter, learn about first- and second-degree purposes of homicide and the legal tests for
murder and voluntary manslaughter. determining death.
INTRODUCTION
Why is homicide considered the most serious criminal Supreme Court Justice William Brennan noted
offense? What is the reason that it is the only crime that in a society that “so strongly affirms the sanc-
subject to the death penalty? tity of life,” it is not surprising that death is viewed
155
as the “ultimate” harm. Justice Brennan went on to observe that death is “truly awesome” and is
“unusual in its pain, in its finality, and in its enormity. . . . Death, in these respects, is in a class by
itself. . . . [It is] degrading to human dignity. It is this regard for life that reminds us to respect one
another and to treat each individual with dignity and regard.”1 In Coker v. Georgia, Supreme Court
Justice Byron White, in explaining why the death penalty is imposed for murder while it is not
imposed for rape, noted that the “murderer kills; the rapist, if no more than that, does not. Life is
over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was,
but it is not over and normally is not beyond repair.”2
There are also religious grounds for treating murder as the most serious of crimes. The influ-
ential eighteenth-century English jurist William Blackstone observed that murder is a denial of
human life and that human life is a gift from God. He stressed that a mere mortal has no right to
take a life and to disrupt the divine order of the universe. Professor George Fletcher expands on this
notion and explains that in the view of the Bible, a killer was thought to acquire control over the
blood of the victim. The execution of the killer was the only way that the blood could be returned
to God.3
At common law, murder was defined as the unlawful killing of another human being with
malice aforethought. (We will discuss the meaning of malice aforethought in the next section.)
Initially, the common law did not distinguish between types of criminal homicide. The taking
of a life was treated equally as serious whether committed intentionally, in the heat of passion,
recklessly, or negligently.
The development of the modern law of homicide can be traced to fifteenth-century England.
Members of the clergy were prosecuted for homicide before ecclesiastical or religious courts that,
unlike royal courts, were not authorized to impose the death penalty. Offenders, instead, were
subject to imprisonment for a year, the branding of the thumb, and the forfeiture of goods. Judges
in the religious courts gradually expanded the benefit of clergy to any individual who could read,
in order to avoid the harshness of the death penalty. Defendants who could not read typically
claimed the benefit of clergy by memorizing passages from the Bible in order to prove that they
were literate.
The English monarchy resisted expanding the power of religious courts and enacted a series of
statutes that established the jurisdiction of royal courts over the most atrocious homicides. These
statutes denied the benefit of clergy and provided for the death penalty. The royal courts began to
distinguish between murder, which was committed with malice aforethought and was not eligible
for the benefit of clergy, and manslaughter, which was committed without malice aforethought
and was eligible for the benefit of clergy. This distinction persisted even after royal courts asserted
jurisdiction over all homicides. Murder under the royal courts was subject to the death penalty
unless a royal pardon was issued, whereas manslaughter was viewed as a less serious offense that
did not result in capital punishment. Most state statutes continue to recognize the distinction
between murder and manslaughter. Over time, judges created several other categories of homicide,
a process that culminated in modern homicide statutes.
In this chapter, we will review the distinctions between these various grades of criminal
homicide. Your challenge is to understand these distinctions.
TYPES OF CRIMINAL HOMICIDE

By the eighteenth century, the law recognized four types of homicide:
1. Justifiable homicide includes self-defense, defense of others, defense of the home, and
police use of deadly force.
2. Excusable homicide is murder committed by individuals who are considered to be

legally insane, by individuals with a diminished capacity, or by infants.
3. Murder includes all homicides that are neither excused nor justified.
4. Manslaughter includes all homicides without malice aforethought that are committed
without justification or excuse.
CHAPTER 7 Homicide 157
As we have seen, by the end of the fifteenth century, criminal homicide had been divided
into murder, or the taking of the life of another with malice aforethought, and manslaughter, or
the taking of the life of another without malice aforethought. Malice aforethought is commonly
defined as the intent to kill with an ill will or hatred. Aforethought requires that the intent to kill
be undertaken with a design to kill. The classic example of a plan to kill is murder committed while
“lying in wait” for the victim.
The commentary to the Model Penal Code (MPC) notes that judges gradually expanded malice
aforethought to include various types of murder that have little relationship to the original defini-
tion. As observed by the Royal Commission on Capital Punishment in England, malice aforethought
has come to be a general name for “a number of different mental attitudes which have been vari-
ously defined at different stages in the development of the law, the presence of any one of which has
been held by the courts to render a homicide particularly heinous and therefore to make it murder.”
The MPC notes that as the common law developed, malice aforethought came to be divided
into several different mental states, each of which was subject to the penalty of death. The first is
intent to kill or murder. A second category of murder entails knowingly causing grievous or serious
bodily harm. A third category of murder is termed depraved heart murder or killing commit-
ted with extreme recklessness or negligence. This involves a “depraved mind” or an “abandoned
and malignant heart” and entails a wanton and willful disregard of an unreasonable human risk.
A fourth category involves the intent to resist a lawful arrest. There is one additional category of
murder committed with malice aforethought. This is murder committed during a felony, which
today is termed felony murder.
Remember that murder requires a demonstration of malice. The Nevada criminal code states
that murder is the “unlawful killing of a human being, with malice aforethought, either express
or implied. . . . The unlawful killing may be effected by any of the various means by which death
may be occasioned.” Individuals who have a deliberate intent to kill possess express malice. Implied
malice exists in those cases that an individual possesses the intent to cause great bodily harm or the
intent to commit an act that may be expected to lead to death or great bodily harm. Nevada defines
express malice as a “deliberate intention unlawfully to take away the life of a fellow creature which
is manifested by external circumstances.” The Nevada law goes on to provide that malice may be
implied “when all the circumstances of the killing show an abandoned and malignant heart.”4
What about manslaughter? The common law of manslaughter developed into two separate
categories. The first entails an intentional killing committed without malice in the heat of passion
upon adequate provocation. Murder was also considered manslaughter when it was committed
without malice as a result of conduct that was insufficiently reckless or negligent to be categorized
as depraved heart murder. Courts typically describe the first category as voluntary manslaughter
and the second as involuntary manslaughter.
In 1794, Pennsylvania adopted a statute (ch. 257, §§ 1, 2) creating separate grades of murder
and manslaughter that continue to serve as the foundation for a majority of state statutes today.
The Pennsylvania statute divided homicide into two separate categories and limited the death
penalty to first-degree murder, the most serious form of homicide. Second-degree murder was
punishable by life imprisonment.
All murder, which shall be perpetrated by means of poison, by lying in wait, or by any
other kind of willful, deliberate, or premeditated killing or which shall be committed in
perpetration or attempt to perpetrate any arson, rape, robbery, or burglary shall be deemed
murder in the first degree; and all other kinds of murder shall be deemed murder in the
second degree.
Modern state statutes typically divide murder into first- and second-degree murder, both of
which require the prosecutor to establish intent and malice. First-degree murder is the most
serious form of murder, and the prosecutor has the burden of establishing premeditation and
deliberation. This involves demonstrating that the defendant reflected for at least a brief period
of time before intentionally killing another individual. Second-degree murder usually includes
all murders not involving premeditation and deliberation. Manslaughter typically comprises an
additional grade or grades of homicide. These general categories are described in Table 7.1, starting
with the most serious degree of homicide. Keep in mind that state statutes differ widely in their
approach to defining homicide.
Some states also single out vehicular manslaughter as a special form of involuntary man-
slaughter. This typically is defined as the “reckless killing of another by the operation of an auto-
mobile, airplane, motorboat or other motor vehicle involving conduct creating a substantial risk of
death or serious bodily injury to a person; or as the proximate result of the driver’s intoxication.”5
Homicide primarily is prosecuted under state law. The federal government has jurisdiction
over the killing of officers and employees of the U.S. government as well as the killing of various
foreign officials. Federal statutes provide for the same division of offenses as state law.6
Table 7.1 Contemporary Approaches to Homicide

Type of Criminal Homicide Definition
First-Degree Murder Premeditation and deliberation and murder committed in the perpetration of
various dangerous felonies. Some statutes explicitly include the killing of a
police officer and murder committed while lying in wait or as a result of torture
or poison. Capital or aggravated first-degree murder may result in the death
penalty in the states that provide for capital punishment.
Second-Degree Murder Killing with malice and without premeditation. This may include a death
resulting from the intent to cause serious bodily harm and killing resulting
from the distribution of certain unlawful narcotics.
Depraved Heart Murder Reckless conduct that results in the death of another.
Voluntary Manslaughter Murder in the heat of passion.
Involuntary Manslaughter Gross negligence that results in the death of another.
ACTUS REUS AND CRIMINAL HOMICIDE

State statutes define the actus reus of criminal homicide as the “unlawful killing of a human being”
or “causing the death of a person.” This may involve an infinite variety of acts, including shooting,
stabbing, choking, poisoning, beating with a bat or axe, and “a thousand other forms of death.”7
Homicides can also be carried out without landing a single blow. A husband was held criminally
liable for the murder of his young wife when he threatened to beat her unless she jumped into a
stream that subsequently carried her away in the current.8
The Legal Equation

Criminal homicide = Unlawful killing of human being
+ purposely or knowingly or recklessly or negligently.
MENS REA AND CRIMINAL HOMICIDE

The mens rea of criminal homicide encompasses all of the mental states that we discussed in Chapter
3. The Utah criminal code provides that an individual commits criminal homicide “if he inten-
tionally, knowingly, recklessly, with criminal negligence” or acting with the “mental state . . . spec-
ified in the statute defining the offense, causes the death of another human being, including an
unborn child at any stage of development.”9
Two forms of criminal homicide that we will review later in the chapter, felony murder and
misdemeanor manslaughter, involve strict liability. The grading, or assignment of degrees to
homicide, is based on a defendant’s criminal intent. As we shall see, an individual who kills as a
result of premeditation and deliberation is considered more dangerous and morally blameworthy
than an individual who kills as a result of a reckless disregard or negligence.
MURDER
We have seen that murder is the unlawful killing of an individual with malice aforethought. Several
types of murder are discussed in this chapter, and your challenge is to learn the difference between
each of these categories of homicide:
•• First-degree murder Table 7.2 Ten* Highest Murder Rates in

•• Capital and aggravated first-degree murder 2014 per 100,000 Population
•• Second-degree murder
•• Depraved heart murder State Rate
•• Felony murder
Louisiana 10.3
Table 7.2 lists the states with the highest rates of homicide Mississippi 8.6
in 2014.
Missouri 6.6
First-Degree Murder South Carolina 6.4
First-degree murder is the most serious form of homicide and Maryland 6.1
can result in the death penalty in thirty-one states.
Nevada 6.0
The mens rea of first-degree murder requires deliberation
and premeditation as well as malice. Premeditation means Delaware 5.8
the act was thought out prior to committing the crime.
Deliberation entails an intent to kill that is carried out in a Florida 5.8
cool state of mind in furtherance of the design to kill. Tennessee 5.7
An intent to kill without deliberation and premeditation
generally is considered second-degree murder. Arkansas 5.7
Why is first-degree murder treated more seriously than
Georgia 5.7
other forms of homicide? First, an individual who is capable
of consciously devising a plan to take the life of another obvi- National Rate = 4.5
ously poses a threat to society. A harsh punishment both is
deserved and may deter others from cold and calculated kill-
Source: Kathleen O’Leary Morgan and Scott Morgan,
ings. Some commentators dispute whether a deliberate and
eds. State Rankings 2016: A Statistical View of America.
premeditated murderer poses a greater threat than an impul- Thousand Oaks, CA: CQ Press, 2016, p. 36.
sive individual who lacks self-control and may explode at any
moment in reaction to the slightest insult. Assuming that you *Eleven are included due to the three-way tie of
Tennessee, Arkansas, and Georgia.
were asked to formulate a sentencing scheme, which of these
two killers would you punish most severely?
The general rule is that premeditation may be formed in the few seconds it takes to pull a
trigger or deliver a fatal blow. A West Virginia court observed that the “mental process necessary to
constitute ‘willful, deliberate and premeditated’ murder can be accomplished very quickly or even
in the proverbial ‘twinkling of an eye.’”10 The California Penal Code in Section 189 provides that to
prove a killing was “deliberate and premeditated, it shall not be necessary to prove the defendant
maturely and meaningfully reflected upon the gravity of his or her act.”
What evidence might have established premeditation? In order to establish premeditation and
deliberation, judges generally require either evidence of planning or evidence that the defendant
possessed a motive to kill and that the killing was undertaken in a fashion that indicates that it was
planned, such as “lying in wait” or the use of a bomb or poison or the carrying out of the killing
in a brutal fashion.
A number of judges continue to resist the trend toward recognizing that a premeditated intent
to kill need only exist for an instant. These jurists point out that unless the prosecution is required
to produce proof of premeditation and deliberation, it is difficult to tell the difference between
first- and second-degree murder.11 California Penal Code Section 189 adopts a modern approach
to defining first-degree murder by listing specific criminal acts that are categorized as first-degree
murder. The acts listed in the statute generally require some planning and reflection.
All murder which is perpetrated by means of a destructive device or explosive, a weapon

of mass destruction, knowing use of ammunition designed primarily to penetrate metal
or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and
premeditated killing, . . . or any murder which is perpetrated by means of discharging a
firearm from a motor vehicle, intentionally at another person outside of the vehicle with
the intent to inflict death, is murder of the first degree. All other kinds of murders are of
the second degree.
Felony murder, which is covered later in the chapter, also is considered first-degree murder
under California law.
A particularly difficult issue is so-called mercy killing. In State v. Forrest, Forrest shot and killed
his dying father and was convicted of first-degree murder and sentenced to life imprisonment. A
judge noted in dissent that
[a]lmost all would agree that someone who kills because of a desire to end a loved one’s
Read State v.
Forrest on the
physical suffering caused by an illness which is both terminal and incurable should not be
study site: study deemed in law as culpable and deserving of the same punishment as one who kills because
.sagepub.com/ of unmitigated spite, hatred, or ill will. Yet the Court’s decision in this case essentially says
lippmaness2e. there is no legal distinction between the two kinds of killing.12

Suicide at common law was considered the felony of a homicide.” In May 2009, a sixty-six-year-old woman
“self murder” because it deprived the King of one of suffering from pancreatic cancer became the first per-
his subjects and therefore was a crime against the son in Washington to make use of the law to end her
Crown and against God. The punishment for suicide life. Approximately 150 persons have made use of the
entailed forfeiture of the deceased person’s estate and law in Washington.
loss of the right to a formal burial. In 1961, England In both Oregon and Washington, two doctors are
abolished the offense of suicide, although assisting required to certify that a patient has six months or less
suicide remains a crime. to live. After receiving these separate, independent
In the United States, suicide in most states also no certifications, the patient is eligible to terminate his or
longer is considered a criminal offense. Assisting sui- her life. Then, the patient must request lethal drugs on
cide, however, remains a crime. New York provides that two occasions, fifteen days apart. The fatal dose must
an individual who “intentionally causes or aids another be self-administered.
person to commit suicide” is guilty of manslaughter in The Oregon and Washington laws are opposed by
the second degree (N.Y. Penal Law § 125.15). various religious organizations and by the American
In November 1997, the Oregon “death with dig- Medical Association, which believes that doctors
nity” law went into effect. The law provides for phy- should not be involved in assisting in the taking of
sician-assisted suicide (Ore. Rev. Stat. §§ 127.800, human life.
et seq). In 2006, the U.S. Supreme Court held that In Oregon, an equal number of men and women
the federal government had no legal authority under have made use of the law, and the median age of
the Controlled Substances Act (CSA) to prevent Oregon these individuals is seventy-one years of age. Of these
doctors from prescribing legal drugs to be used in sui- individuals, 81 percent were suffering from cancer.
cide. Roughly six hundred individuals have made use Studies determined that most of these individuals
of the Oregon law. See Gonzales v. Oregon, 546 U.S. were motivated by a desire to control their fate rather
243 (2006). than to eliminate pain. There was apprehension when
Washington passed a similar law in 2008. Wash. the Oregon law was passed that poor individuals would
Rev. Code § 70.122.070(1) provides that the with- be pressured into suicide because of the cost of their
holding or withdrawal of life-sustaining treatment at a care. Studies, however, indicate that most people
patient’s request “shall not . . . constitute a suicide or employing the law were solidly middle class.
In 2014 in Oregon, prescriptions for lethal medi- to take his life. See People v. Kevorkian, 639 N.W.2d
cations were written for 155 people as compared to 291 (Mich. 2001). Kevorkian had videotaped the pro-
122 people in 2013 and 116 in 2012. There were cess leading to Youk’s death. The tape was played on
seventy-one “assisted deaths” during 2013, nearly CBS’s 60 Minutes and was used by the prosecution
all of which involved individuals who were over six- at trial. Kevorkian was unrepentant and claimed that
ty-five years of age and died at home. These people he was providing a “medical service for an agonized
expressed concern for a loss of autonomy, for decreas- human being.”
ing capacity to participate in activities that made life The U.S. Supreme Court in two decisions has
enjoyable, and for a loss of dignity. upheld the constitutionality of a state’s criminally pun-
In 2009, in Baxter v. State, 224 P.3d 1211 (Mont. ishing assisted suicide. See Vacco v. Quill, 521 U.S 793
2009), the Montana Supreme Court held that a doctor (1997); and Washington v. Glucksberg, 521 U.S. 702
is not criminally liable for assisting a mature, aware, (1997). The Court noted in Washington v. Glucksberg
and terminally ill patient to take his or her life. The that an examination of “our Nation’s history, legal tradi-
court reasoned that state public policy respected the tions, and practice demonstrates that Anglo-American
end-of-life autonomy of patients and that doctors had common law has punished . . . assisting suicide for
an ethical obligation to respect a patient’s wishes. The over seven hundred years.”
Alaska Supreme Court earlier had held that terminally In 2014, twenty-nine-year-old Brittany Maynard,
ill patients have no right to a physician’s assistance in diagnosed with terminal brain cancer, moved from
committing suicide. See Sampson v. State, 31 P.3d 88 California to Oregon to take her life under Oregon law.
(Alaska 2001). In May 2014, the Vermont legislature She wrote, “My question is: Who has the right to tell
recognized that terminally ill patients have a right to me that I don’t deserve this choice?” Brittany’s death
assistance in dying. led to the California legislature’s adoption in 2015 of
In other states in the United States, the law contin- the End of Life Option Act, which legalized physician-as-
ues to treat aiding and abetting a suicide as a crime. In sisted suicide. The California law requires two doctors
1999, the late Dr. Jack Kevorkian was convicted of the to certify that a patient has six months or less to live
second-degree murder of Thomas Youk and was sen- before lethal drugs may be prescribed. Patients are
tenced to serve from ten to twenty-five years in prison. required to be physically able to swallow the medica-
Youk was in the final stages of Lou Gehrig’s disease tion themselves and must have the mental capacity to
and had signed a consent form authorizing Kevorkian make medical decisions.
The Legal Equation

First-degree murder = remeditated and deliberate intent to kill another person
P
(or intent to commit felony in felony murder)
+ act that is the factual and legal cause of death
+ death of another person.
Capital and Aggravated First-Degree Murder

Thirty-one states and the federal government authorize the death penalty. In some states, this is
called capital murder. The statutes in these jurisdictions typically provide for the death penalty
or a life sentence in the case of a first-degree murder committed under conditions that make the
killing deserving of the punishment of death or life imprisonment. Other states create a category
termed aggravated murder that is subject to the death penalty or to life imprisonment. Those states
that do not possess the death penalty punish aggravated murder by life imprisonment rather than
death.
State capital murder or aggravated murder statutes typically reserve this harsh punishment for
premeditated killings committed with the presence of various aggravating factors or special
circumstances. The Virginia capital murder statute, for instance, includes willful, deliberate, and
premeditated killing of a police officer, killing by an inmate, and killing in the commission of or
following a rape or sexual penetration, along with other factors.13 These statutes differ from one
another but typically include the following aggravating circumstances:
•• Victim. A killing of a police officer, a juvenile thirteen years of age or younger, or more than
one victim.
•• Offender. An escaped prison inmate or an individual previously convicted of an aggravated
murder.
•• Criminal Act. Terrorism, murder for hire, killing during a prison escape, or killing to prevent
a witness from testifying.
•• Felony Murder. Killing committed during a dangerous felony.
The jury, in order to sentence a defendant to death, must find one or more aggravating circum-
stances and is required to determine whether these outweigh any mitigating circumstances
that may be presented by the defense attorney. Some statutes list mitigating circumstances that
the jury should consider. The Florida death penalty statute specifies a number of mitigating cir-
cumstances, including the fact that the defendant does not possess a significant history of criminal
activity or that he or she suffered from a substantially impaired mental capacity, or that the defen-
dant was under the influence of extreme mental or emotional disturbance or acted under duress,
or the victim participated in the defendant’s conduct or consented to the act, or the defendant’s
participation was relatively minor.14
An example of a crime involving extreme and outrageous depravity is the Florida case of Owen
v. State. The Florida Supreme Court recounted that the victim was stabbed or cut eighteen times
and was alive when all the wounds were inflicted and “undoubtedly had a belief of her impending
doom.” The puncturing of Karen Slattery’s lung “caused her to literally drown in her own blood.
She experienced air deprivation. Each of the eighteen cuts, slashes, and/or stab wounds caused
pain by penetrating nerve endings in Miss Slattery’s body.”15
Second-Degree Murder
State second-degree murder statutes typically punish intentional killings that are committed with
malice aforethought that are not premeditated, justified, or excused. Most statutes go beyond
this simple statement and provide that killings committed with malice aforethought that are not
specifically listed as first-degree murder are considered second-degree murder. For instance, several
states include felony murder as second- rather than first-degree murder.
Washington State provides that a person is guilty of murder in the second degree when, with
“the intent to cause the death of another person but without premeditation, he causes the death
of such person.” That statute also includes as second-degree murder a killing committed in further-
ance of or in flight from a felony.16 Idaho provides that all killings that are not explicitly included
in the first-degree murder statute “are of the second degree.”17 This means that an Idaho prosecu-
tor is authorized to charge second-degree murder in all instances in which a murder does not fall
within the state’s first-degree murder statute.
The Louisiana statute states that second-degree murder is the killing of a human being when
the “offender has a specific intent to kill or to inflict great bodily harm.” The law also provides that
second-degree murder includes18
•• a killing that occurs during the perpetration or attempted perpetration of aggravated rape,
arson, burglary, kidnapping, escape, a drive-by shooting, armed robbery, or robbery, despite
the fact that the individual possesses no intent to kill or to inflict great bodily harm;
•• a killing that occurs in the perpetration of cruelty to juveniles, despite the fact that an indi-
vidual has no intent to kill or to inflict great bodily harm; and
•• a killing that directly results from the unlawful distribution of an illegal narcotic.
Some states include intent-to-do-serious-bodily-harm murder under second-degree

murder. In Midgett v. State, Ronnie Midgett Sr. was convicted of second-degree murder under an
Arkansas statute that punished a killing committed with the “purpose of causing serious physical
injury.”19 The three-hundred-pound Midgett starved and abused eight-year-old Ronnie Jr. for a
number of months. The Arkansas Supreme Court held that Midgett’s intent had been “not to kill
his son but to further abuse him” and there was no “substantial evidence” that Midgett “premed-
itated and deliberated the killing.”20
The Legal Equation

Second-degree murder = Intentional act dangerous to the life of another
+ intent to kill without premeditation and deliberation or

intent to commit underlying felony for felony murder
+ causing the death of another person.
Depraved Heart Murder

An individual may be held criminally responsible for depraved heart murder in those instances
that he or she kills another as a result of the “deliberate perpetration of a knowingly dangerous act
with reckless and wanton unconcern and indifference as to whether anyone is harmed or not.”21 A
defendant who acts in this fashion is viewed as manifesting an “abandoned and malignant heart”
or “depraved indifference to human life.” Reckless homicide is based on the belief that acts under-
taken without an intent to kill that severely and seriously endanger human life are “just as antiso-
cial and . . . just as truly murderous as the specific intent to kill and to harm.”22 Malice is implied
in the case of depraved heart murder, and this is typically punished as second-degree murder. The
California Penal Code states that malice is “implied . . . when the circumstances attending the
killing show an abandoned and malignant heart.”23
Depraved heart murder requires the following:
•• Conduct. The defendant’s act must create a very high degree of risk of serious bodily injury.
Keep in mind that the act must be highly dangerous.
•• Intent. The defendant must be aware of the danger created by his or her conduct. Some
courts merely require that a reasonable person would have been aware of the risk.
•• Danger. The common law appeared to require that a number of individuals were placed in
danger; the modern view is that it is sufficient that a single individual is at risk.
Kansas Statutes Annotated Section 21-3402 (2003 Supp.) defines depraved heart murder as the
killing of a human being committed “unintentionally but recklessly under circumstances man-
ifesting extreme indifference to the value of human life.” John Doub drank six beers following
a party, struck two parked vehicles, and immediately drove off because he was concerned that
the police would detect that he had been drinking. He subsequently drank additional liquor and
smoked crack cocaine. Roughly two hours later, he collided into the rear of an automobile, killing
nine-year-old Jamika Smith. The accident investigator determined that Doub was traveling at a
rapid rate and drove “up on top of [the car],” driving it down into the pavement and propelling
the automobile off the street and into a tree. Would you convict Doub?24
There is no mathematical formula for determining whether an act satisfies the highly danger-
ous standard of depraved heart murder. This is decided based on the facts of each case. Examples
of depraved heart murder include the following:
•• A defendant plays a game of “Russian Roulette” in which he loads a revolver with one bullet
and six “dummy bullets” and spins the chamber. He places the gun to the victim’s head and
pulls the trigger three times; the third pull kills the victim.25
•• A defendant shoots into a passing train, unintentionally killing a passenger.26
•• Two street gangs engage in a lengthy shoot-out on a street in downtown Baltimore, killing
an innocent fifteen-year-old.27
In State v. Davidson, the Kansas Supreme Court found that Sabine Davidson had killed
Christopher Wilson “unintentionally but recklessly under circumstances manifesting extreme
indifference to the value of human life.” Davidson had a number of “powerful” and “aggressive”
dogs and, despite warnings, failed to train or restrain the dogs, which terrorized the neighborhood.
The dogs mauled an eleven-year-old child to death, and the court affirmed her conviction for
depraved heart murder finding that she “created a profound risk and ignored foreseeable conse-
quences that her dogs could attack or injure someone.”28
The Legal Equation

Depraved heart murder = Dangerous act creating a high risk of death
+ knowledge of danger created by act.
You Decide 7.1 Michael Berry was charged Berry was illegally growing in an area in the back of his
with depraved heart murder. The house. Berry’s next-door neighbor momentarily left her
defendant purchased a pit bull, two-year-old child, James Soto, playing on the patio of
Willy, from a breeder of fighting her home. James apparently wandered across Berry’s
dogs. Berr y trained Willy and yard to the other side of Berry’s home, where he encoun-
entered the dog in “professional fights” as far away as tered Willy and was mauled to death. An animal control
South Carolina. Willy was described as possessing officer testified that pit bulls are considered “dangerous
stamina, courage, and a particularly “hard bite.” He was unless proved otherwise.” Is Berry guilty of killing with
tied to the inside of a six-foot unenclosed fence so as to an abandoned and malignant heart? See Berry v.
discourage access to the 243 marijuana plants that Superior Court, 256 Cal. Rptr. 344 (Cal. Ct. App. 1989).
Felony Murder
A murder that occurs during the course of a felony is punished as murder. In People v. Stamp,
Michael John Koory and Jonathan Earl Stamp robbed a store while armed with a gun and a black-
jack. The defendants ordered the employees along with the owner, Carl Honeyman, to lie down
on the floor so that no one “would get hurt” while they removed money from the cash register.
Fifteen or twenty minutes following the robbery, Honeyman collapsed on the floor and was pro-
nounced dead on arrival at the hospital. He was found to suffer from advanced and dangerous
hardening of the arteries, but doctors concluded that the fright from the robbery had caused the
fatal seizure. A California appellate court affirmed the defendants’ conviction for felony murder
and sentence of life imprisonment.29
This use of the felony murder conviction to hold defendants liable for murder was criticized
by another California appellate court, which observed that such a “harsh result destroys the sym-
metry of the law by equating an accidental killing . . . with premeditated murder.”30 Despite this
criticism, the fact remains that “but for” the robbery, Honeyman would not have died. Severely
punishing Koory and Stamp deters other individuals contemplating thievery and protects society.
As you read this section of the textbook, consider whether the felony murder rule is a fair and just
doctrine.
The felony murder doctrine, as previously noted, provides that any homicide that occurs
during the commission of a felony or attempt to commit a felony is murder. This is true regardless
of whether the killing is committed with deliberation and premeditation, intentionally, recklessly,
or negligently. The intent to commit the felony is considered to provide the malice for the convic-
tion of murder. The doctrine can be traced back to Lord Coke in the early 1600s and is illustrated
by Judge Stephen’s example that “if a man shot at a fowl with intent to steal it, and accidentally
killed a man, he was to be accounted guilty of murder, because the act was done in the commission
of a felony.”31
This common law rule was not viewed as unduly harsh because all felonies in England were
subject to the death penalty, and it made little difference whether an individual was convicted
of murder or of the underlying felony. Felony murder, however, came under increasing criticism
in England as the number of felonies subject to the death penalty was gradually reduced. English
lawmakers came to view felony murder as making little sense and abandoned the doctrine in 1957.
The 1794 Pennsylvania murder statute included, within first-degree murder, killings commit-
ted in the perpetration or attempt to perpetrate “any arson, rape, robbery, or burglary.” Killings
committed in furtherance of other felonies under the Pennsylvania law were considered second-de-
gree murder. The federal government along with virtually every state has continued to apply the
felony murder rule; only Ohio, Hawaii, Michigan, and Kentucky resist the rule. Four reasons are
offered for the felony murder rule:
1. Deterrence. Individuals are deterred from committing felonies knowing that a killing will
result in a murder conviction.
2. Protection of Life. Individuals are deterred from committing felonies in a violent fashion
knowing that a killing will result in a murder conviction.
3. Punishment. Individuals who commit violent felonies that result in death deserve to be
harshly punished.
4. Prosecution. Prosecutors are relieved of the burden of establishing a criminal intent. The
fact that a killing occurred during a felony is sufficient to establish first-degree murder. The
imposition of liability on all the felons carrying out the crime provides an efficient method
for incarcerating dangerous felons.
There is some question whether the felony murder rule is an important tool in the fight against
crime. The U.S. Supreme Court, for example, cites statistics indicating that only half of 1 percent
of all robberies result in homicide.32
State felony murder statutes generally classify killings committed in the perpetration or
attempt to commit dangerous felonies, such as arson, rape, robbery, or burglary, as first-degree
murder deserving life imprisonment or in states with the death penalty as a capital felony pun-
ishable with either life imprisonment or the death penalty. Killings committed in furtherance of
other less dangerous felonies typically are not explicitly mentioned and are prosecuted under sec-
ond-degree murder statutes that punish “all other kinds of murder that are not listed as first-degree
murder.”33 Several states have statutes that punish as second-degree murder a killing that results
from the commission or attempt to commit “any felony.”34
Statutes that do not list specific felonies present courts with the challenge of determining
which felonies are sufficiently serious to provide the foundation for felony murder. What felonies
should serve as the foundation or predicate for felony murder? Judges have generally limited fel-
ony murder to “inherently dangerous felonies.” One approach is to ask whether a particular felony
can be committed “in the abstract” without creating a substantial risk that an individual will be
killed. The other method is to examine whether the manner in which a particular felony was com-
mitted in the specific case before the court created a high risk of death.
The approach of the California Supreme Court is to ask whether the “underlying felony” can
be committed without endangering human life. In People v. Burroughs, the California Supreme
Court ruled that the defendant’s felonious unlicensed practice of medicine did not constitute an
“inherently dangerous felony” because an unlicensed practitioner may be treating a common cold,
a sprained finger, or an individual who suffers from the delusion that he or she is president of the
United States. The California Supreme Court accordingly reversed the defendant’s conviction for
felony murder.35
The felony also must have “caused” the victim’s death to support a felony murder convic-
tion, and the state must establish “that the homicide was committed in the perpetration of the
felony.” A Florida court held that there was “a break in the chain of circumstances when some-
one stole a car in the early morning hours and, later that evening, Allen [the defendant] was
involved in an accident while driving the stolen car.”36 In Lester v. State, although the defendant
“believed the police were following him,” he was not fleeing the scene of the crime, and “his
reckless driving was too [distant] from the grand theft of the car the previous evening to support
a felony murder conviction.”37 These cases are distinguished from a situation in which a fatal
accident occurred while the defendant was fleeing the scene of the robbery with the police in
high-speed pursuit.38
Keep in mind that under the theory of accomplice liability, all the co-felons will be liable
for a killing committed in furtherance of the felony that is the natural and probable result of
the crime.
Felony murder can become complicated where a nonfelon, such as a police officer or vic-
tim, kills one of the felons or a bystander. In Campbell v. State, a police officer killed an armed
fleeing felon who had robbed a taxicab driver. An unarmed co-felon was later apprehended by
another officer and was charged with the first-degree murder of his co-felon. The Maryland Court
of Appeals adopted the agency theory of felony murder that limits criminal liability to the
acts of felons and co-felons and acquitted the defendant.39 This theory was first stated by the
Massachusetts Supreme Judicial Court in Commonwealth v. Campbell, which held that a felon was
criminally responsible only for acts “committed by his own hand or by some one acting in concert
with him in furtherance of a common object or purpose” and that a felon is not liable for the acts
of a “person who is his direct and immediate adversary . . . [who is] actually engaged in opposing
and resisting him and his confederates.”40
Other courts have adopted a proximate cause theory of felony murder that holds
felons responsible for foreseeable deaths that are caused by the commission of a dangerous fel-
ony. In Kinchion v. State, the defendant acted as a lookout while his armed accomplice entered
a store. The clerk shot and killed Kinchion’s co-conspirator in self-defense, and Kinchion was
convicted of first-degree felony murder. The Oklahoma court affirmed the defendant’s con-
viction, explaining that his planning and carrying out of the armed robbery “set in motion
‘a chain of events so perilous to the sanctity of human life’ that the likelihood of death was
foreseeable.”41
Consider whether this doctrine makes sense. Oliver Wendell Holmes Jr., in his famous book
The Common Law, argues that if a felon stealing chickens accidentally kills a farmer, the defendant
should be punished for reckless homicide rather than felony murder. Why should the prosecu-
tor rely on felony murder rather than establishing the elements of implied malice second-de-
gree murder? Note that Holmes argues that prosecuting the defendant for felony murder serves
little purpose because few chicken thieves will be deterred from stealing chickens by a conviction
of the thief for felony murder, and it would not occur to most chicken thieves to carry a weapon
in any event.42
The MPC shares Holmes’s point of view and restricts felony murder to killings that are com-
mitted under certain circumstances. Section 210.2 punishes, as a felony of the first degree, killings
committed purposely or knowingly as well as killings that result from “circumstances manifesting
Read People v.
extreme indifference to the value of human life.” Reckless indifference is presumed when a killing
Lowery on the
study site: study is committed during the commission, attempted commission, or flight from a robbery, sexual
.sagepub.com/ attack, arson, burglary, kidnapping, or felonious escape. The jury must find beyond a reasonable
lippmaness2e. doubt that the defendant possessed a reckless indifference to human life. Would you recognize
felony murder if you were drafting a new criminal code for your state?
The Legal Equation

Felony murder = Killing of another
+ intent to commit a dangerous felony
+ killing during perpetration of a dangerous felony
+ caused by felon or co-felon as a consequence of the felony.

You Decide 7.2 Sanexay Sophophone and The Kansas Supreme Court held that the “over-
three other individuals broke into a riding fact . . . is that neither Sophophone nor any of
house in Emporia, Kansas. Police his accomplices ‘killed’ anyone. . . . We believe that
officers responded to a call from making one criminally responsible for the lawful acts
residents and spotted four individ- of a law enforcement officer is not the intent of the fel-
uals leaving the back of the house. They shined a light ony-murder statute.” The dissent pointed out that the
on the suspects and ordered them to stop. An officer rationale for felony murder is that it serves as a general
ran down Sophophone, handcuffed him, and placed him deterrent. Potential felons will be hesitant to engage in
in a police car. criminal activity if they realize that they risk being con-
Another officer chased fellow suspect Somphone victed of first-degree murder in the event that a death
Sysoumphone. Sysoumphone crossed railroad tracks, occurs during the commission of a felony. “Sophophone
jumped a fence, and then stopped. The officer approached set in motion acts which would have resulted in the
with his weapon drawn and ordered Sysoumphone to death or serious injury of a law enforcement officer had
the ground and not to move. Sysoumphone complied it not been for the highly alert law enforcement officer.”
with the officer’s command but, while lying face down, This “could have very easily resulted in the death of a
rose up and fired at the officer, who returned fire and law enforcement officer . . . [and] is exactly the type of
killed him. Sophophone was charged with conspiracy case the legislature had in mind when it adopted the
to commit aggravated burglary, obstruction of official felony-murder rule. . . . It does not take much imagina-
duty, and felony murder. The question of law before tion to see a number of situations where a death is
the Kansas Supreme Court was whether Sophophone going to result from an inherently dangerous felony and
could be convicted of felony murder for the “killing of a the majority’s opinion is going to prevent the accused
co-felon not caused by his acts but by the lawful acts of from being charged with felony murder.”
a police officer acting in self-defense in the course and What is your view? Should the Kansas court use
scope of his duties in apprehending the co-felon fleeing the agency or proximate cause theory? See State v.
from an aggravated burglary.” Sophophone, 19 P.3d 70 (Kan. 2001).
MANSLAUGHTER
Manslaughter comprises a second category of homicide and is defined as an unlawful killing of
another human being without malice aforethought.
The common law distinction between voluntary manslaughter and the less severe offense of
involuntary manslaughter continues to appear in many state statutes. Other statutes distinguish
between degrees of manslaughter, and a third approach combines both voluntary and involuntary
manslaughter within a single statute that punishes the crime of manslaughter. Voluntary man-
slaughter is the killing of another human being committed in a sudden heat of passion in response
to adequate provocation. Adequate provocation is considered a provocation that would cause a
reasonable person to lose self-control. Involuntary manslaughter is the killing of another human
being as a result of criminal negligence. Criminal negligence involves a gross deviation from the
standard of care that a reasonable person would practice under similar circumstances.
Voluntary Manslaughter
One function of criminal law is to remind us that we will be prosecuted and punished in the event
that we allow our anger or frustration to boil over and assault individuals or destroy their prop-
erty. Voluntary manslaughter seemingly is an exception to the expectation that we control our
emotions. This offense recognizes that a reasonable person, under certain circumstances, will be
provoked to lose control and kill. In such situations, it is only fair that an individual should receive
a less serious punishment than an individual who kills in a cool and intentional fashion.
Voluntary manslaughter requires that an individual kill in a sudden and intense heat of pas-
sion in response to adequate provocation. Heat of passion is commonly described as anger but is
sufficiently broad to include fear, jealousy, and panic.
The law of provocation is based on the reaction of the reasonable person, a fictional bal-
anced, sober, and fair-minded human being with no physical or mental imperfections. Adequate
provocation is defined as conduct that is sufficient to excite an intense passion that causes a reason-
able person to lose control. The common law restricted adequate provocation to a limited number
of situations: aggravated assault or battery, mutual combat defined as a fight voluntarily entered
into by the participants, a serious crime committed against a close relative of a defendant, and one
spouse observing the adultery of the other spouse. Keep in mind that the provocation must cause
a reasonable person to lose control (objective component) and the defendant, in fact, must have
lost control and killed in the heat of passion (subjective component).
The defense of sudden heat of passion is unavailable if a reasonable person’s passion would
have experienced a cooling of blood between the time of the provocation and the time of the
killing. Some common law courts followed an ironclad rule that limited the impact of provocation
to twenty-four hours. The modern approach is to view the facts and circumstances of a case and to
determine whether a reasonable person’s “blood would have cooled” and whether the defendant’s
“blood had cooled.” In a frequently cited case, the victim was sodomized while unconscious. The
perpetrator spread news of the defendant’s victimization throughout the community and sub-
jected the victim to what the victim viewed as humiliating comments and embarrassment. The
defendant boiled over in rage after two weeks of this harassment and killed the perpetrator. The
court ruled that the cumulative impact of the harassment would not be taken into consideration
and that too much time had passed to recognize involuntary manslaughter.43
Voluntary Manslaughter Reconsidered

Voluntary manslaughter involves several “hurdles”:
•• Provocation. An individual must be reasonably and actually provoked and must kill in the
heat of passion.
•• Cooling of Blood. An individual must have reasonably and actually not “cooled off.”
The question remains whether the law should recognize voluntary manslaughter. An individ-
ual who loses control and impulsively kills clearly poses a threat to society and might be viewed
to be as dangerous as an individual who intentionally and calmly kills. Should we accept that a
“reasonable person” can be driven to kill in the heat of passion and therefore should be subject to
less severe punishment than other categories of killers?
Another question is whether the states should follow MPC Section 210.3(1) and allow the jury
to decide for itself whether there is adequate provocation to reduce a defendant’s guilt from mur-
der to manslaughter. California, in reaction to a series of cases in which defendants unsuccessfully
claimed they had acted in a heat of passion when the victim had attempted to sexually molest
them, adopted a law in 2014 prohibiting defendants from raising the “gay panic defense.”
The Legal Equation

Voluntary manslaughter = Killing another person
+ intent to kill
+ udden heat of passion based on adequate

s
provocation.
You Decide 7.3 Steven S. and Joyce M. Girouard Their relationship was rocky, and there is some
had been married for about two indication that Joyce resumed a relationship with a for-
months on October 28, 1987, after mer boyfriend.
having known each other for roughly Steven overheard Joyce tell her friend on the tele-
three months. They met while work- phone that she had asked for a discharge because her
ing together in the military. husband did not love her anymore. Joyce refused to
answer Steven’s question; and, upset by her lack of Steven left the bedroom with his pillow and
response, Steven kicked away Joyce’s plate of food. entered the kitchen. He took a long-handled kitchen
Joyce followed Steven into the bedroom and knife, which he hid behind the pillow. Joyce continued
climbed onto Steven’s back, pulled his hair, and said, taunting Steven, claiming that the marriage had been a
“What are you going to do, hit me?” Joyce added, “I mistake. Steven lunged at Joyce and stabbed her nine-
never did want to marry you and you are a lousy f--- teen times. Steven was convicted of first-degree mur-
and you remind me of my dad [who had impregnated der and, on appeal, claimed that he should have been
her when she was 14]. . . . What are you going to do?” convicted of voluntary manslaughter.
She added that she had filed charges against him in Do you agree with Steven? See Girouard v. State,
the Judge Advocate General (JAG) and that he would 583 A.2d 718 (Md. 1991).
probably be court-martialed.
Involuntary Manslaughter
Involuntary manslaughter involves the unintentional killing of another without malice and typ-
ically includes negligent manslaughter, the negligent creation of a risk of serious injury or
death of another, as well as misdemeanor manslaughter (also referred to as unlawful-act man-
slaughter), the killing of another during the commission of a criminal act that does not amount to
a felony. Some states, such as California, also provide for vehicular manslaughter, or the kill-
ing of another that results from the grossly negligent operation of an automobile or from driving
under the influence of intoxicants.
Negligent Manslaughter
Negligent manslaughter arises when an individual commits an act that he or she is unaware creates
a high degree of risk of human injury or death under circumstances in which a reasonable person
would have been aware of the threat. Some courts require recklessness, meaning that a defendant
must have been personally aware that his or her conduct creates a substantial risk of death or seri-
ous bodily harm. Other courts do not clearly state whether they require negligence or recklessness.
Alabama Criminal Code Section 13A-6-4(a) provides that a person “commits the crime of
criminally negligent homicide if he causes the death of another person by criminal negligence.”
Missouri Criminal Code Section 565.024 provides that the crime of involuntary manslaughter
involves “recklessly” causing the death of another person. The MPC uses a negligence standard
and holds individuals criminally responsible where they are “grossly insensitive to the interests
and claims of other persons in society” and their conduct constitutes a “gross deviation from ordi-
nary standards of conduct.”
You Decide 7.4 Robert Strong, age fifty-seven, less occasions he had stopped a follower’s heartbeat
emigrated from “Arabia” to China and breathing and had plunged knives into the individu-
and then to Rochester, New York, al’s chest without injuring the person. The defendant
three years later. The defendant performed this ceremony on Kenneth Goings, a recent
ar ticulated the three central recruit to the religion, and the wounds from the hatchet
beliefs of his religion as “cosmetic consciousness, mind and three knives that Strong inserted proved fatal. One
over matter and psysiomatic psychomatic conscious- of Strong’s followers testified that the defendant had
ness.” He contended that “mind over matter” empow- previously performed this ritual without causing injury.
ered a “master” or leader to lie on a bed of nails without Was Strong “guilty only of the crime of criminally negli-
bleeding, walk through fire, and perform surgical opera- gent homicide?” See People v. Strong, 37 N.Y.2d 568
tions without anesthesia. He also claimed that on count- (1975).


On June 17, 2015, Dylann Storm Roof, age twenty-one, Roof, who had not finished high school, purchased
a slight young Caucasian man with a bowl haircut, a 45-caliber handgun with money given to him by his
entered Emanuel African Methodist Episcopal (AME) parents. According to friends, in the days leading to the
Church in Charleston, South Carolina, during Bible killings, he seemed obsessed with defending the white
Study and asked for and took a seat next to Pastor race against what he viewed as the rising power of
Clementa C. Pinckney. An hour after arriving, Roof sud- African Americans and advocated segregation between
denly stood and pulled out a pistol and in response African Americans and whites. Roof’s friends report-
to an effort to calm him down announced that “[y]ou edly did not take him seriously when he talked about
[African Americans] are raping our women and taking starting a race war by undertaking the mass killing of
over the country. And you have to go.” When Tywanza African Americans. He had been arrested five months
Sanders, twenty-six, told Roof to shoot him rather than earlier for unlawful possession of a prescription drug
Susie Jackson, his eighty-seven-year-old aunt, Roof and was arrested two weeks later for misdemeanor
replied, “[i]t doesn’t matter [because] I’m going to trespass at a shopping mall from which he earlier had
shoot all of you.” Roof told one woman that he would been banned. At the time of Roof’s arrest, the police
allow her to live “so she can tell the story of what hap- seized assault rifle parts and six 40-round magazines
pened.” All of the African American victims were shot in his trunk.
multiple times by Roof, whose image was captured by South Carolina indicted Roof for nine counts of
a number of security cameras. murder. The federal government later announced that
Nine people—three men and six women age twen- it would charge Roof with a hate crime. South Caro-
ty-nine to eighty-seven—were killed by Roof, including lina is one of five states that does not enhance pen-
pastor, state senator, and civil rights leader Pinckney, alties for bias-motivated offenses. U.S. Department of
age forty-one. Pinckney was a highly respected voice Justice officials pointed out that Roof had knowingly
for justice and a conciliatory figure in South Carolina. entered a renowned African American church and had
The other deceased individuals included a library man- selected African American victims. Nationally, roughly
ager, a former county administrator, a speech therapist half of hate crimes are based on race, 20 percent are
who also worked for the church, and two ministers. motivated by religion, 18 percent are directed against
Emanuel AME Church, known as “Mother Emanuel,” individuals because of their sexual orientation, and
is the oldest African American congregation south of the remainder are based on ethnicity or because of an
Baltimore, Maryland. The members of the congrega- individual’s disability. Some commentators called for
tion convened in secret in the years prior to the Civil Roof to be charged with terrorism and pointed out that
War when African American churches were prohibited, similar acts when carried out by Muslims are labeled
and the church contains a shrine to one of its found- as terrorism although are considered ordinary crimes
ers, Denmark Vesey, who helped to organize a slave when directed against African Americans and Muslim
revolt in 1822. Vesey, along with thirty-five other Afri- Americans.
can American slaves, was executed when the plans In the aftermath of the attack, South Carolina gov-
for a slave revolt were uncovered and 313 suspected ernor Nikki R. Haley called on the state legislature to
conspirators were arrested. The church was burned remove the Confederate flag from the grounds of the
down by a white mob in retribution and subsequently state capitol. The flag originally was flown over the
was rebuilt in 1891. In the 1960s, “Mother Emanuel” state house in 1962 as a symbol of resistance to the
was a center of civil rights activity, and the Rever- civil rights movement. Supporters of the flag objected
end Dr. Martin Luther King Jr. spoke at the church in to the legislature’s removal of the flag and insisted
1962. Observers were struck by the fact that at Roof’s that it is a symbolic acknowledgment of the heritage of
arraignment family members of the victims, while want- their ancestors who fought in the Civil War. Would you
ing to see Roof punished, expressed forgiveness and prosecute Roof for a hate crime? Can crimes like those
prayed for Roof’s soul. committed by Roof be deterred?
THE BEGINNING OF HUMAN LIFE

We have seen that murder entails the killing of a human being. Shooting a corpse under the false
belief that the individual is alive is not murder. At what point does life begin? The common law
rule adopted in 1348 provided that a defendant was not criminally responsible for the murder of
a child in a mother’s womb unless the child was born alive with the capacity for an independent
existence. Following the child’s birth, the question was whether the defendant’s acts were the prox-
imate cause of death. This rule reflected the fact that doctors were unable to determine whether an
unborn child was alive in the mother’s womb at the time of an attack.
In Keeler v. Superior Court, the California Supreme court held that the “born alive” rule barred
the defendant’s conviction for the death of a fetus.44 The California legislature responded by
amending the definition of murder to include the unlawful killing of “a human being, or a fetus,
with malice aforethought.”45
Roughly twenty states continue to follow some form of the born alive rule. In State v. Lamy, the
New Hampshire Supreme Court reversed a defendant’s manslaughter and negligent homicide con-
viction. The inebriated defendant drove at one hundred miles per hour down the wrong side of the
street, hit a taxi, and killed a passenger who was seven months pregnant. The state was unable to
show that the fetus was born alive because the prosecutor failed to demonstrate that the child was
able to live on its own without a life support machine. D.E. “was never able to breathe without the
aid of a respirator, required medication to maintain his blood pressure and never acquired . . . any
brain function. . . . D.E. never exhibited any spontaneous sign of life such as beating of the heart,
pulsation of the umbilical cord, or definite movement of voluntary muscles.”46
A number of states have abandoned the common law born alive rule in the last few decades.
Roughly fifteen states impose criminal liability when the prosecution is able to establish beyond a
reasonable doubt that the fetus at the time of injury was viable, meaning that the fetus was capable
of living separate and apart from the mother. In Commonwealth v. Cass in 1984, the Massachusetts
Supreme Judicial Court ruled that the “infliction of prenatal injuries resulting in the death of a via-
ble fetus, before or after it is born, is homicide. . . . We believe that our criminal law should extend
its protection to viable fetuses.”47
Keep in mind that the U.S. Supreme Court recognized in Roe v. Wade in 1973 that women
have a right to an abortion as part of their constitutional right to privacy. A state may limit this
right during the last phase of pregnancy, other than in those instances when an abortion is
necessary to protect the health or life of the mother. The decision to hold an attacker criminally
responsible for the death of a viable fetus does not limit the right of a woman to voluntarily
consent to an abortion by a licensed physician. The MPC maintains the common law born alive
rule in order to avoid a possible conflict between the law of abortion and the criminal law rule
concerning the fetus.48
The trend is to extend homicide laws to the “earliest stages of pregnancy.” In People v. Davis,
the California Supreme Court held that California Penal Code Section 187(a), which defined mur-
der as the “unlawful killing of a human being, or a fetus,” extended protections to the postembry-
onic stage that occurs in humans “seven or eight weeks after fertilization.”49 Other state statutes are
broader than the decision of the California Supreme Court. These state laws use the terms gestation,
conception, fertilization, and postfertilization. Alabama Code Section 13A-6-1 defines human beings
as “unborn children in utero at any stage of development, regardless of viability.” South Carolina
Code Section 16-3-1083 has a similar law that states that the murder of a pregnant woman results
in liability for a “double homicide.”
The U.S. Congress adopted the Unborn Victims of Violence Act of 2004, which declares that
it is a crime to cause the death of a fetus in utero when the offender has knowledge of the victim’s
pregnancy or when the offender intended to injure or cause the death of the fetus.50
A significant number of state courts have ruled that child abuse statutes as well as homicide
statutes apply to a fetus.51 The South Carolina Supreme Court, however, held that a woman was
properly convicted of child neglect who caused her baby to be born with cocaine metabolites in its
system by reason of her ingestion of crack cocaine during the third trimester of her pregnancy.52
THE END OF HUMAN LIFE

The question of when life ends seems like a technical debate that should be the concern of doctors
and philosophers rather than lawyers and criminal justice professionals.
The traditional definition of death required the total stoppage of the circulation of the blood
and the cessation of vital functions, such as breathing. This definition was complicated by technol-
ogy that, over the last decades, developed to the point that a “brain dead” individual’s breathing
and blood flow could be maintained through artificial machines despite the fact that the brain had
ceased to function.
In 1970, Kansas became the first state to legislate that death occurs when an individual expe-
riences an irreversible cessation of breathing and heartbeat or there is an absence of brain activity.
A majority of state legislatures and courts now have adopted a brain death test for death. The
circulatory and respiratory and brain death tests are incorporated as alternative approaches in the
Uniform Determination of Death Act, a model law developed by the American Bar Association and
American Medical Association.
The brain death test has also been adopted by courts in states without a statute defining death.
In the Arizona case of State v. Fierro, the deceased, Victor Corella, was shot in the chest and head by
a rival gang member. Corella was rushed to the hospital where he was operated on and, although
his brain had ceased to function, he was placed on a life support system. The doctors, convinced
that nothing could be done to save Corella’s life, removed him from the life support machine after
four days. The defendant argued that the removal of Corella from the life support machine was the
proximate cause of death. The Arizona Supreme Court ruled that under Arizona law, death could
be shown by either a lack of bodily function or brain death and concluded that the victim was
legally dead before being placed on life support.53
Terri Schiavo
In 1976, the New Jersey Supreme Court held that Karen Ann Quinlan was entitled to the removal of her feeding tube.
The Court noted that “[w]e have no doubt . . . that if Karen were herself miraculously lucid for an interval . . . and
perceptive of her irreversible condition, she could effectively decide upon discontinuance of the life-support appa-
ratus, even if it meant the prospect of natural death.” See In re Quinlan, 355 A.2d 647 (N.J. 1976).
In Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990), the U.S. Supreme Court held that
an individual in a persistent vegetative state has a liberty interest in refusing medical treatment, which must
be balanced against the state interest in the preservation of life and ensuring that decisions reflect a patient’s
wishes. A state, according to the Court, may require that the individual’s preferences be demonstrated by “clear
and convincing evidence” and is not required to accept the “substituted” judgment of family members.
In 1990, Terri Schiavo, age twenty-six, collapsed in her Florida home and suffered massive brain damage as a
result of a lack of oxygen. She remained in a coma for ten weeks. Terri was diagnosed as being in a persistent veg-
etative state in which she experienced normal sleep–wake cycles, although she did not respond to external stimuli.
A total of nine state court decisions between 2000 and 2003 culminated in a judicial order ordering removal of
Terri’s feeding tube. In October 2003, one week after the final judicial order removing the feeding tube, the Florida
state legislature passed a law giving Governor Jeb Bush the authority to intervene in the case. Governor Bush
ordered reinstatement of the feeding tube. The law subsequently was overturned as unconstitutional by the Florida
Supreme Court. Terri’s parents insisted that Terri responded to familiar voices and music, and they filed a series
of unsuccessful judicial appeals before turning to the federal government. The Congress, with strong support from
Republicans, passed and President George W. Bush signed an order transferring jurisdiction to the federal courts.
The federal courts refused to intervene.
Terri passed away on March 31, 2005, at age forty-one. She managed to live for thirteen days following the
removal of the feeding tube. Terri’s death had been the subject of nineteen state and federal court decisions, leg-
islation at both the state and federal levels, and four Supreme Court denials of review.
The Schiavo case raised the issue of whether the courts and the medical profession should make life and
death decisions based on their view of the “value and quality of human life.” Michael Schiavo and two other wit-
nesses testified that Terri had remarked that she would not want her life perpetuated on a machine. On the other
hand, we have no idea what Terri would have decided under the circumstances, and the notion that individuals
have a “right to die” is open to debate. Critics warn that there is a temptation, as the population grows increasingly
older, to make the denial of food and fluids (“passive euthanasia”) an accepted part of the practice of medicine.
THE YEAR-AND-A-DAY RULE

The common law year-and-a-day rule was established in 1278 and provides that an individ-
ual is criminally responsible only for a death that occurs within one year of his or her criminal
act. The basis for the rule was that medicine was not as advanced as it is today and that if an
individual remained alive for a year and a day before dying, the victim’s death may have resulted
from a cause other than the criminal attack. Under such circumstances, a defendant would not be
held liable for murder.
The trend is for state courts and legislatures to abolish the year-and-a-day rule. In 2001, the
U.S. Supreme Court affirmed Tennessee’s rejection of the year-and-a-day [rule] and explained that
“practically every court recently to have considered the rule has noted advances in medical and
related science have so undermined the usefulness of the rule as to render it without question
obsolete.”54 Another argument against the year-and-a-day rule is that a family should not be forced
to remove a crime victim from life support in order to prevent a defendant from escaping prosecu-
tion for murder.55 California has adopted a presumption that a death that occurs three years and a
day following a criminal attack is based on factors not related to the criminal attack.56
CORPUS DELICTI
Corpus delicti or “body of crime” or “substance of the crime” is a confusing common law doc-
trine that arises most frequently in homicide cases. Think about corpus delicti as proof that a crime
has been committed. Professor LaFave explains that corpus delicti is satisfied by evidence that a
crime has been committed without establishing the additional fact that the defendant was respon-
sible for the crime. Keep in mind that corpus delicti also is used at times to refer to the fact that the
prosecution must establish all elements of a crime beyond a reasonable doubt.57
Corpus delicti provides that a criminal prosecution requires proof of the prohibited harm
(death) and proof that the harm resulted from a criminal act rather than as a consequence of
natural causes or accident. In an arson case at common law, corpus delicti required proof of the
intentional burning and damage of the dwelling house of another. The prosecution at trial, after
establishing the corpus delicti, has the burden of establishing beyond a reasonable doubt that the
defendant was responsible for the unlawful burning.
The elements of corpus delicti may not be based solely on an individual’s extrajudicial confes-
sion or statements, and this evidence is required to be supplemented by evidence that corroborates
the details of the defendant’s confession or statements. There is fear that an extradjudicial confes-
sion may result from coercion or confusion, and the corroborating evidence requirement protects
a defendant from being convicted of a crime that he or she did not commit. The corpus delicti rule
was embraced in the United States following an early nineteenth-century Vermont case in which
two brothers confessed to the murder of an individual who later was found to be alive and living
in New Jersey.
The corpus delicti rule ordinarily is easily established in a homicide case based on the testi-
mony of the police, medical personnel and records, scientific evidence, and eyewitnesses. In homi-
cide cases involving a “missing body,” corpus delicti is more difficult to establish. The prosecution
in these cases must rely on a defendant’s extradjudicial statements or confession along with cir-
cumstantial evidence. Allowing the prosecution to rely on circumstantial evidence to establish the
death of the victim and to establish the cause of death prevents a guilty individual from escaping
punishment by disposing of the victim’s body.
In a recent Maryland case, a state court of appeals relied on the defendant’s statements to the
police along with circumstantial evidence to “sufficiently establish” that the defendant’s wife, who had
disappeared, was the victim of foul play. The victim, who was described as responsible and organized,
had no contact with her family or friends for a number of years. During that time, she had not used her
credit cards, and she had abandoned her car and dogs. Her calendar indicated that she had made plans
for the next several months, and she had not been located despite a nationwide media blitz.
In a Virginia “missing body” case, the corpus delicti of the victim’s murder was established by
the defendant’s incriminating statements, along with the discovery of the victim’s blood-soaked
clothes and indications of a violent struggle at the house where the victim was last seen.
CASE ANALYSIS
In People v. Mehserle, Officer Johannes Mehserle was convicted of the negligent manslaughter of
Oscar Grant. Why did the California appellate court find that Mehserle was negligent? This verdict
led to demonstrations protesting the verdict of negligent homicide. Would you have held Mehserle
liable of a more serious offense?
Did Officer Mehserle Negligently Kill Oscar Grant?
People v. Mehserle, 206 Cal. App. 4th 1125 (2012), Marchiano, P. J.
Defendant Johannes Mehserle served as a police officer ground. Grant protested, “I can’t breathe. Just get
for the Bay Area Rapid Transit District (BART). Shortly off of me. I can’t breathe. I quit. I surrender. I quit.”
after 2:00 a.m. on January 1, 2009, while responding Defendant ordered Grant to give up his arms, pre-
to a report of a fight on a BART train, he shot and sumably so he could handcuff him. Grant responded
killed BART passenger Oscar Grant during a tense that he could not move. Defendant repeatedly pulled
confrontation. The defendant was attempting to arrest at Grant’s right arm, which apparently was under
and handcuff Grant for the misdemeanor of obstruct- Grant’s body.
ing a police officer. While Grant was lying facedown Defendant testified as follows.
on the BART platform, the defendant shot Grant, who He did not intend to shoot Grant, but only to
was unarmed, in the back. The defendant contended “Tase” him. He mistakenly drew and fired his hand-
he meant to pull his Taser and shock Grant to subdue gun. . . . Defendant did not hear Grant complain that
him, but drew his handgun by mistake and fired the he could not breathe. Defendant did not notice that
fatal shot. Officer Pirone had restrained Grant by placing his
Defendant carried two weapons: a black model knee on Grant’s neck.
226 40-caliber Sig Sauer handgun and a bright yellow Defendant saw Grant’s right hand go into his
Taser International X26 Taser. The handgun weighed pocket as if he were grabbing for something. Although
more than three times as much as the Taser. The hand- he did not see a weapon, he thought Grant might
gun had no manual safety switch, while the Taser had a be reaching for one. He decided to “Tase” Grant. He
safety switch that also functioned as an on/off switch. stood up to get sufficient distance to properly deploy
The Taser had a red laser sight; the handgun did not. the Taser, and announced, “I’m going to tase him. I’m
In the small hours of the early morning of New Year’s going to tase him.”
Day 2009, Grant boarded a BART train in San Francisco Defendant was not aware he had mistakenly
with his fiancée, Sophina Mesa, and several other friends. drawn his handgun until he heard the shot. He looked
The group was bound for the Fruitvale BART station. The down and saw he was holding his handgun, . . . and
train was very crowded with New Year’s Eve celebrants, did not notice the lack of a red laser sight which would
and people were standing in the aisles. have emanated from his Taser.
As the train approached the Fruitvale BART sta- We find sufficient evidence that [the defendant’s]
tion in Oakland, Grant began to argue with a fellow conduct of mistakenly drawing and firing his hand-
passenger and the two men started “tussling around.” gun instead of his Taser constitutes criminal negli-
They attempted to strike each other, but the train was gence. . . . [H]e believed he was “Tasing” an arrestee,
so crowded they were reduced to pushing and shoving. but mistakenly, and criminally negligently, drew and
The aggression spread into a large fistfight, involving fired his handgun with lethal results.
at least 10 men. CALCRIM No. 580 defines criminal negligence as
Passengers used the train intercom to report the follows. “A person acts with criminal negligence when:
fight to the operator, who in turn contacted BART
central control. Central control apparently contacted 1. He or she acts in a . . . way that creates a
BART police, whose dispatcher contacted officers in high risk of death or great bodily injury;
the field with a report of a fight at the Fruitvale BART AND
station in the train’s “lead car, no weapons, all black
clothing, large group of B[lack] M[ales].” 2. A reasonable person would have known
Officer Anthony Pirone ordered Grant off the that acting in that way would create such a
train. . . . Grant did not comply. Pirone said, “I’ve risk.
asked you politely. I’m going to have to remove you in
front of all these people now.” Pirone grabbed Grant [T]he jury could have reasonably found that
by his hair and the scruff of his neck and forced him when defendant did decide to use his Taser, he was
off the train. . . . Pirone forced Grant to his knees. criminally negligent in mistaking his handgun for his
A passenger’s video shows Pirone drawing his Taser Taser. . . . Defendant had drawn his Taser earlier. The
and pointing it. . . . Grant pleaded with Pirone not to handgun weighed more than three times as much
“Tase” him because “I have a daughter.” as the Taser. The Taser was bright yellow. The hand-
Pirone and defendant placed Grant on his stomach. gun was black. The Taser had an on/off safety switch.
Pirone used his knees to pin Grant’s neck to the The handgun did not. The Taser had a red laser sight.
The handgun did not. The handgun was holstered the Taser’s bright yellow color as measures to prevent
on defendant’s right, or dominant side, with a two- handgun/Taser confusion. A reasonable jury could
step release mechanism requiring defendant to push conclude that a reasonably prudent person could
down and forward and then back on a separate safety distinguish between the two weapons, and drawing
switch. The Taser, in contrast, was holstered on defen- the deadly weapon—heavier, of a different color, and
dant’s left, or nondominant side, for a cross-draw by on the dominant side of the body with a compli-
defendant’s right hand and had only a safety strap and cated release mechanism—under the circumstances,
safety hood. After . . . incidents of handgun/Taser con- amounted to criminal negligence. Thus, the jury could
fusion, . . . several police agencies changed their Taser have reasonably found defendant’s conduct . . . was
policies to require nondominant-side holstering and not a mere mistake.
CHAPTER SUMMARY
The killing of another human being violates the fun- states, aggravated murder carries life imprisonment.
damental right to life and is considered the most A homicide qualifies as aggravated or capital murder
serious criminal offense. The common law gradually when it is found to have been committed in a heinous
distinguished between murder (killings committed or atrocious fashion.
with malice aforethought) and the less serious crime Second-degree murder involves the intentional
of manslaughter (killings committed without malice killing of a human being with malice aforethought
aforethought). that is not committed in a premeditated and deliber-
We generally measure the beginning of human ate fashion. Depraved heart murder includes killings
life from viability, the point at which a fetus is able resulting from a knowingly dangerous act committed
to live independently from the mother. Death is mea- with reckless and wanton disregard as to whether oth-
sured by the brain death test, or the failure of the brain ers are harmed. Felony murder entails the death of an
function. individual during the commission of or attempt to
Malice is the intent to kill with ill will or hatred. commit a felony. This category of murder tends to be
Aforethought means a design to kill. Malice afore- limited to dangerous felonies; and in various states,
thought is expressed when there is a deliberate intent felony murders are categorized as first-degree murder
to kill or implied where an individual possesses the rather than second-degree murder.
intent to cause great bodily harm or the intent to Manslaughter comprises voluntary and involun-
commit an act that may lead to death or great bodily tary manslaughter. Voluntary manslaughter is the kill-
harm. Judges gradually expanded the concept of mal- ing of another in a sudden and intense heat of passion
ice aforethought to include various forms of criminal in response to an adequate provocation. Adequate
intent. provocation is defined as conduct that is sufficient to
There is no single approach to defining the law of excite an intense passion that would cause a reason-
murder or manslaughter in state statutes. The division able person to lose control. Only a limited number
of homicide into degrees is intended to divide killings of acts are considered to constitute adequate provo-
by the “moral blameworthiness of the individual.” cation, but some judges have vested the discretion
This division is typically based on factors such as the to determine provocation in jurors. The heat of pas-
perpetrator’s intent, the nature of the killing, and the sion is considered to have “cooled” after a reasonable
surrounding circumstances of the killing. period of time.
First-degree murder is the deliberate and premedi- Involuntary manslaughter includes negligent
tated killing of another with malice aforethought. An manslaughter and misdemeanor manslaughter, also
individual who is capable of devising a plan to take termed unlawful-act manslaughter. Negligent man-
the life of another is considered a serious threat to slaughter involves the creation of a risk of the serious
society. Premeditation may be formed instantaneously injury or death of another. Courts, in practice, do not
and does not require a lengthy period of reflection. clearly distinguish between a negligence and reckless-
Thirty-one states recognize the death penalty. ness standard. Misdemeanor manslaughter involves
Killings viewed as deserving of capital punishment are a killing committed during the commission of a mis-
categorized as capital first-degree murder or aggravated demeanor. Some states expand misdemeanor man-
first-degree murder. Conviction results in the death slaughter to include nonviolent felonies and, for this
penalty or life imprisonment. In non-death-penalty reason, term this offense unlawful-act manslaughter.
1. Discuss the historical origins and development of 7. What acts constitute adequate provocation? What
criminal homicide into murder and manslaugh- must the defendant prove to establish heat of
ter. Can you distinguish between murder and passion? At what point does a defendant’s blood
manslaughter? “cool”?
2. Differentiate first-degree murder from first-degree 8. Should the law recognize the offense of voluntary
capital or aggravated homicide. manslaughter? Why not?
3. What is the difference between first- and sec- 9. Discuss the difference between negligent homi-
ond-degree murder? cide and misdemeanor manslaughter. Why is
misdemeanor manslaughter termed unlawful-act
4. Define depraved heart murder.
manslaughter in some states?
5. Why does the law provide for the offense of fel-
10. Discuss the purpose of the various grades of mur-
ony murder? What are the arguments for and
der and dividing homicide into murder and man-
against the felony murder rule?
slaughter. Why do we make all these technical
6. Define voluntary manslaughter. distinctions between types of homicide?
LEGAL TERMINOLOGY
agency theory of felony murder first-degree murder murder

aggravating factors grading negligent manslaughter
brain death test heat of passion premeditation and deliberation
capital murder intent-to-do-serious-bodily-harm proximate cause theory of felony
murder murder
cooling of blood
involuntary manslaughter reasonable person
corpus delicti
justifiable homicide recklessness
criminal homicide
malice aforethought second-degree murder
depraved heart murder
manslaughter vehicular manslaughter
excusable homicide
misdemeanor manslaughter voluntary manslaughter
felony murder
mitigating circumstances year-and-a-day rule

OTHER CRIMES AGAINST
8 THE PERSON
Was Dominguez guilty of kidnapping

based on dragging the victim twenty- 2. Know the elements of the crime of stalking.
five feet from the side of the road into 3. Know the definition of rape under the common
an embankment? law and the strict requirements for rape under
the common law.
Forensic evidence determined Perez had been beaten and 4. List some of the changes in the law of rape
choked to death and that she had been forcibly raped,
resulting from rape reform in the 1970s and
causing substantial bruising to her posterior vaginal wall
and cervix. . . . [Dominguez] followed the victim after she 1980s.
got out of the taxi and, with the intent to rape her, forced 5. Compare and contrast the extrinsic and intrin-
her from the side of Southside Road, down an embank- sic tests for the actus reus of rape/sexual
ment and into an orchard. Once there, he (possibly with
assault.
Martinez’s assistance) raped and killed her, burying her
jeans and discarding her shoes at the scene before drag- 6. Know the difference between fraud in the
ging her lifeless body further into the walnut orchard and factum and fraud in inducement.
burying her. An investigating officer testified the drop from
the surface of Southside Road to where the victim’s bloody 7. Understand the standard for the mens rea of
jeans were buried was approximately 10 to 12 feet, down rape/sexual battery.
a “fairly steep” hill. This place, which is where the pros-
ecutor argued the rape occurred, was about 25 feet from 8. Summarize the law of statutory rape.
the road. (People v. Dominguez, 39 Cal.4th 1141 [2006]) 9. State the law on rape/sexual battery and the
In this chapter, learn about sexual assault and withdrawal of consent.
kidnapping.
10. Understand rape shield statutes.
11. Know the role of testimony on rape trauma tes-

Learning Objectives timony at trial.
12. Describe the intent and act requirement for
1. Describe the difference between simple and kidnapping.
aggravated battery and between attempted
battery assault and the placing of another in 13. Distinguish between kidnapping and false
fear of a battery assault. imprisonment.
177
INTRODUCTION
This chapter discusses three categories of crimes against the person. The first is protection against
the threat and infliction of bodily harm (assault and battery), and the second is freedom from
sexual violations (rape and sexual assault and battery). A third category is freedom of movement
(kidnapping and false imprisonment).
Next to homicide, sexual offenses are considered the most serious offenses against the person
and are punished as felonies, even when the victim is not physically injured. This harsh punishment
reflects the fact that nonconsensual acts of sexual intimacy can cause severe physical injury as well as
psychological trauma. Assaults and batteries and false imprisonment are typically misdemeanors (other
than when committed in an aggravated fashion that risks or results in physical injury). Kidnapping
is considered a serious offense that places people in danger and was subject to the death penalty
under the common law.
There clearly is no more fundamental or important interest than protecting the life and
bodily integrity of the individual. This is the basic and essential expectation of all members of a
community. Imagine a society in which each of us was constantly fearful of an attack to our bodily
integrity. Are there geographic areas of American society and the world that come close to this type
of “lawlessness”?
ASSAULT AND BATTERY

Assault and battery, although often referred to as a single crime, in fact are separate offenses.
A battery is the application of force to another person. An assault may be committed either by
attempting to commit a battery or by intentionally placing another in fear of a battery. Notice that
an assault does not involve physical contact. An assault is the first step toward a battery, and the
law takes the position that it would be unfair to hold an individual liable for both an assault and
a battery. As a result, the assault “merges” into the battery, and an individual is held responsible
only for the battery. A Georgia statute provides that an individual “may not be convicted of both
the assault and completed crime.”1
State statutes typically include assault and battery under a single “assault statute.” Both
offenses are considered misdemeanors. Serious assaults and batteries are punished as aggravated
misdemeanors, and aggravated batteries are categorized as felonies.
The Elements of Battery

Modern battery statutes require physical contact that results in bodily injury or offensive touching,
contact that is likely to be regarded as offensive by a reasonable person. Assault and battery are
satisfied under the Model Penal Code (MPC) by an intentional, purposeful, reckless, or negligent
intent. The Texas Penal Code follows the MPC and declares that it is a battery to “intentionally,
knowingly, or recklessly [cause] bodily injury to another.”2
Most state statutes narrowly limit the required intent. Illinois punishes the intentional or
knowing causing of bodily harm to an individual or physical contact with an individual of an
insulting or provoking nature.3 Georgia limits battery to the intentional causing of “substantial
physical harm or visible bodily harm to another.” This includes, but is not limited to, substantially
blackened eyes, substantially swollen lips, and substantial other bruises to body parts.4 California
defines a battery as “any willful and unlawful use of force or violence upon the person of another.”5
In thinking about battery, you should be aware that a battery is not confined to the direct
application of force by an individual. It can include causing substantial bodily harm by poison-
ing, bombing, a motor vehicle, illegal narcotics, or an animal. Minnesota, for instance, punishes
causing “great or substantial harm” by intentionally or negligently failing to keep a dog prop-
erly confined.6 In State v. Sherer, the defendant placed random phone calls to over thirty women
in Bozeman, Montana, in which he impersonated a doctor treating urinary tract infections.7 He
directed the women to engage in a self-exam over the phone involving a knife, a razor blade, or
fingernail polish remover. The Montana Supreme Court ruled that aggravated assault does not
CHAPTER 8 Other Crimes Against the Person 179
require that the defendant personally direct force toward a victim, and that the resulting injury
was precisely what Sherer intended to accomplish. Sherer’s communications were held to be the
cause of the victims’ personal physical abuse. In states with statutes punishing offensive physical
contact, an uninvited kiss or sexual fondling may be considered a battery. A Washington court
held that assault and battery includes spitting.8
You should also keep in mind that not every physical contact is a battery. We imply consent to
physical contact in sports, in medical operations, while walking in a crowd, or when a friend greets
us with a hug or kiss. The law accepts that police officers and parents are justified in employing
reasonable force. Reasonable force may also be used in self-defense or in defense of others.
The last point is that, as illustrated in the next section, states differ significantly in their
approach to defining aggravated batteries or batteries that deserve a longer sentence.
Simple and Aggravated Battery

We earlier mentioned that a battery is a misdemeanor. Aggravated batteries are felonies. An aggra-
vated battery typically requires
•• serious bodily injury,

•• the use of a dangerous or deadly weapon, or
•• the intent to kill, rape, or seriously harm.
The Georgia battery statute punishes a second conviction for a simple battery with impris-
onment of between ten days and twelve months with the possibility of a fine of not more than
$1,000.9 An aggravated battery in Georgia requires an attack that renders a “member” of the vic-
tim’s body “useless” or “seriously disfigured” and is punishable by between one and twenty years in
prison. The penalty is enhanced to between ten and twenty years when the offense was knowingly
directed at a police or correctional officer, and to between five and twenty years when directed
at an individual over sixty-five, committed in a public transit vehicle or station, or directed at a
student or teacher. An aggravated battery is punished by between three and twenty years in prison
when directed at a family member.10
Some idea of the range of acts that are punished as aggravated battery is illustrated by exam-
ining various provisions of state criminal codes. For example, Illinois lists as an aggravated battery
a battery committed by an individual who is “hooded, robed or masked, in such manner as to
conceal his identity.”11 South Dakota considers the serious physical injury on an unborn child to
be an aggravated assault.12 Florida punishes as aggravated a battery that intentionally or know-
ingly is committed against a woman who is pregnant and who the offender knows is pregnant.13
A Minnesota statute punishes as an aggravated battery the selling or provision of illegal narcotics
that “causes great bodily harm” by imprisonment for not more than ten years and by payment of
a fine of not more than $20,000.14
California considers a battery aggravated when committed with a deadly weapon, a caustic
or flammable chemical, a Taser or stun gun, or when the battery results in grievous bodily harm.
A battery also is aggravated in California when committed against any person on school or park
property, on the grounds of a public or private hospital, or against police officers, firefighters,
correctional officers, public transportation operators, the elderly, and other specified individuals.15
States also have adopted statutes punishing caregivers who intentionally or recklessly cause
injury to a “vulnerable elderly person,” endanger the health of a “vulnerable elderly individual,”
or subject the elderly individual to sexual abuse.16
In 2012, Samuel Mullet Sr., along with fifteen members of a breakaway Amish sect, were con-
victed in federal district court of assault and other crimes for attacking and cutting the beards of
men and the hair of women who opposed Mullet’s dissident sect.17
Dangerous Weapon Battery

Dangerous weapon battery is considered an aggravated battery under state statutes. In
Massachusetts, a battery through the use of a dangerous weapon may result in imprisonment for
ten years.18
A dangerous weapon is an instrumentality that may be used to inflict serious bodily harm.
This may be an object like a gun, knife, or hatchet designed to inflict substantial bodily harm
or an object that may be used to inflict substantial harm. Ordinary objects may be transformed
into dangerous weapons based on how they are used. This includes beer bottles, wooden boards,
pool cues, and boots. In State v. Basting, the Minnesota Supreme Court held that a trained boxer’s
landing of two blows that broke the victim’s nose did not constitute a battery with the use of a
dangerous weapon.19 The court examined the totality of the circumstances and concluded that the
use of fists or feet may constitute a dangerous weapon based on the size and strength of the parties,
the vulnerability of the victim, the duration and severity of the attack, the presence or absence of
victim provocation, and the nature and extent of the injuries.
A defendant’s hands or feet have been determined to constitute a dangerous weapon when a
“brutal and prolonged attack” is directed against a “vulnerable” and “defenseless” victim. In State
v. Davis, the victim was seven months pregnant at the time the defendant attacked her. When
she tried to run from the defendant, he grabbed her, and she fell to the ground on her hands and
knees. The defendant slapped her and repeatedly kicked her as if he was “jump-starting a Harley
and the defendant punched the victim five to ten times in her face, torso and chest.”20 Kicking a
victim who is on the ground in the head with cowboy boots also was found to constitute a dan-
gerous weapon battery.21 In State v. Coauette, a Minnesota appellate court held that the firing of
a paint ball gun at a young girl, which resulted in swelling and scratching, did not constitute a
battery with the use of a dangerous weapon.22 The court noted that paint ball guns “are designed
and manufactured to launch paintballs. And paintballs are intended and designed to break on
contact and simply—as part of the game—splash a dose of nontoxic liquid paint on the human
target. A paintball gun is not—by design or intent—‘calculated or likely to produce death or great
bodily harm.’”
Mayhem
The common law crime of mayhem is included in the criminal codes of several states, including
California. California defines mayhem as depriving a human being of a “member of his or her
body, or disabl[ing], disfigur[ing], or render[ing] it useless, or cut[ting] or disabl[ing] the tongue, or
put[ting] out an eye, or slit[ting] the nose, ear, or lip.” Mayhem includes intentionally depriving
a “human being of a limb, organ, or member of his or her body” and is punishable by life impris-
onment with the possibility of parole.23 A well-known case of “malicious wounding” involved
Lorena Bobbitt who, while her husband John was asleep, dismembered his sexual organ and left
the house and tossed it out the car window onto the highway. Lorena claimed that John had raped
her. She was subsequently found not guilty by reason of insanity and was committed to a mental
institution for observation.
California Penal Code Section 206 punishes torture with life imprisonment. “Every person
who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge,
extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined . . . upon
the person of another, is guilty of torture.”24 In 2006, attorney Richard Hamlin was convicted of
torture for a course of abuse against his wife over a four-year period. Hamlin was found to have
beat her, stabbed her, pistol-whipped her, threatened her with a sword, and punched her.
In summary, a battery involves the following:
•• Act. The application of force that results in bodily injury or offensive contact. Aggravated
battery statutes require a serious bodily injury, the intent to cause great bodily harm, or
the use of a dangerous weapon. The contact must be regarded as offensive by a reasonable
person.
•• Intent. The intentional or knowing application of force. Some states include a reckless or
negligent intent.
•• Consent. An implied or explicit consent may constitute a defense under certain circumstances.
Assault
An assault may be committed by an attempt to commit a battery or by placing an individual in fear
of a battery. Georgia defines an assault as an attempt to “commit a violent injury to the person of
another; or . . . an act which places another in reasonable apprehension of immediately receiving
a violent injury.”25
California limits assault to an “an unlawful attempt, coupled with a present ability, to commit
a violent injury on the person of another.”26 Illinois, on the other hand, provides that a person
commits an assault when, “without lawful authority, he engages in conduct that places another
in reasonable apprehension of receiving a battery.”27 An assault is a misdemeanor, punishable
in California by imprisonment by up to six months in the county jail and by a possible fine
of $2,000.28 Ohio is among the states whose criminal code uses the term menacing rather than
assault.29
A small number of states, including New York, recognize the offense of an attempted assault.
The overwhelming majority of jurisdictions reject that an individual may be prosecuted for an
“attempt to attempt a battery” on the grounds that this risks the conviction of individuals who have
yet to take clear steps toward an assault.30 A Georgia court in the nineteenth century also pointed
out that prosecuting an individual for an attempt to commit a battery “is simply absurd. As soon
as any act is done towards committing a violent injury on the person of another, the party doing
the act is guilty of an assault, and he is not guilty until he has done the act. . . . An attempt to act is
too [confused] for practical use.”31 Do you agree that an attempt to commit an assault is “absurd”?
Aggravated Assault
Aggravated assault is a felony and is generally based on factors similar to those constituting an
aggravated battery.
Georgia provides three forms of aggravated assault that are punishable by between five and
twenty years in prison: assault with intent to murder, rape, or rob; assault with a deadly weapon;
and discharge of a firearm from within an automobile. The statute also punishes as an aggravated
assault an assault on a police or correctional officer, a teacher, or an individual sixty-five years of
age or older, or an assault committed during the theft of a vehicle engaged in public or commercial
transport.32
Illinois lists as an aggravated assault an assault committed while “hooded, robed or masked,”
and an assault committed with “a deadly weapon or any device manufactured and designed to be
substantially similar in appearance to a firearm.” An individual also commits an aggravated assault
in Illinois when he or she knowingly and without lawful justification “shines or flashes a laser
gunsight or other laser device that is attached or affixed to a firearm . . . so that the laser beam
strikes near or in the immediate vicinity of any person.”33 Illinois also punishes under a separate
statute “vehicular endangerment,” the dropping of an item off a bridge with the intent to strike a
motor vehicle.34
The Elements of Assault

In considering an attempted battery assault, keep in mind:
•• Intent. An attempt in most states to commit a battery requires an intent (purpose) to commit
a battery.
•• Act. An individual is required to take significant steps toward the commission of the battery.
•• Present Ability. Some states require the present ability to commit the battery. In these juris-
dictions, an individual would not be held liable for an assault where the assailant is unaware
that a gun is unloaded. South Dakota, on the other hand, provides for a battery “with or
without the actual ability to seriously harm the other person.”35
•• Victim. The victim need not be aware of the attempted battery.
The assault of placing another in fear of a battery requires the following:
•• Intent. The intent (or purpose) to cause a fear of immediate bodily harm.
•• Act. An act that would cause a reasonable person to fear immediate bodily harm. Words ordi-
narily are not sufficient and typically must be accompanied by a physical gesture that, in
combination with the words, creates a reasonable fear of imminent bodily harm.
•• Victim. The victim must be aware of the assailant’s act and possess a reasonable fear of immi-
nent bodily harm. A threat may be conditioned on the victim’s meeting the demands of the
assailant.
Model Penal Code

Section 211.1. Assault
(1) Simple Assault. A person is guilty of assault if he
(a) attempts to cause or purposely, knowingly, or recklessly causes bodily injury to another;
or
(b) negligently causes bodily injury to another with a deadly weapon; or
(c) attempts by physical menace to put another in fear of imminent serious bodily injury.
Simple assault is a misdemeanor unless committed in a fight or scuffle entered into by mutual
consent, in which case it is a petty misdemeanor.
(2) Aggravated Assault. A person is guilty of aggravated assault if he

(a) attempts to cause serious bodily injury to another, or causes such injury purposely,
knowingly, or recklessly under circumstances manifesting extreme indifference to the
value of human life; or
(b) attempts to cause or purposely or knowingly causes bodily injury to another with a
deadly weapon.
Aggravated assault under paragraph (a) is a felony of the second degree; aggravated assault
under paragraph (b) is a felony of the third degree.
Analysis
1. The MPC eliminates the common law categories and integrates assaults and batteries into
a single assault statute.
2. Assaults are graded into categories based on the gravity of the harm intended or actually
caused.
3. Grading is not based on the identity of the victim.
4. Actual or threatened bodily injury or serious bodily injury is required. Offensive contact is
excluded.
5. Deadly weapons include poisons, explosives, caustic chemicals, handguns, knives, and
automobiles.
The Legal Equation

Battery = nlawful bodily injury or offensive contact with
U
another
+ urposeful, knowing, reckless, negligent bodily

p
injury, or offensive contact with another.
Attempted battery assault = Intent to injure
+ an act undertaken to commit a battery.

Threatened battery assault = Intent to place in immediate fear of a battery
+ ct undertaken that places a reasonable person

a
in fear of battery.
You Decide 8.1 Officer O’Donnell pulled over finger at the officer and said, ‘Pow.’” O’Donnell, “‘[t]hink-
an automobile for speeding in a ing Carter had a weapon and was going to shoot,’”
“high crime area” of Charlottesville, reached for his weapon. A “split second” later, O’Donnell
Virginia, at 11 p.m. O’Donnell realized “it was only [Carter’s] finger.” O’Donnell testified:
asked the driver for his license and “The first thing I thought was that I was going to get
registration, and the driver responded in a “hostile” fash- shot—it’s a terrifying experience, and if I could have got-
ion. Officer O’Donnell examined the interior of the car ten my weapon, I would have shot him.” O’Donnell, who
with his flashlight. Carter was seated in the front passen- was “visibly shaken,” asked Carter “if he thought it was
ger seat with his right hand extended down toward his funny,” and Carter stated, “Yes, I think it is funny.” Is
leg. “Extending the index finger on his right hand straight Carter guilty of assaulting Officer O’Donnell? See Carter
out and the thumb straight up, [Carter] pointed his index v. Commonwealth, 594 S.E.2d 284 (Va. Ct. App. 2004).
STALKING
The crime of stalking is recognized in every state. Some of you may recall the stalking and
killing of young television actress Rebecca Schaeffer and rock star and former member of the
Beatles John Lennon, as well as the attack on tennis star Monica Seles. Margaret Mary Ray stalked
late-night talk show host David Letterman for a number of years. A recent study estimates that
one out of every six women and one out of every nineteen men in the United States will be the
victim of stalking during her or his lifetime.36 In the late 1980s, California and Florida became
the first states to adopt legislation punishing the crime of stalking. Every state and the District of
Columbia over the course of the next ten years adopted similar legislation. The offense of stalking
was developed because the type of acts that constitute stalking in many instances did not fall
within the definition of a criminal assault or other types of crime. Stalking often involves a series
of legal acts such as telephone calls, e-mails, and driving past an individual’s home, which create
anxiety, fear, and terror.
Stalking statutes, although differing from one another, share several general elements.
Acts. The acts that constitute stalking include following another person, placing another under
surveillance, repeated unwanted contact, lying in wait, threatening, vandalizing, or a combi-
nation of these acts.
Cyberstalking. Stalking is punished when carried out through electronic communication or a
combination of electronic communication, verbal expressions, and acts.
Multiple Acts. A series of acts of harassment are needed. A single act is sufficient where an indi-
vidual violates an order of protection prohibiting contact with the victim.
Intent. A purposeful or knowing intent to harass and to place another person in fear of harm.
Victim. The victim or the victim’s family must have a reasonable apprehension of immediate
or future injury, and a reasonable person would possess such apprehension.
Gender Neutral. The victim may be a man or a woman.
Order of Protection. A judicial order of protection shields a victim by prohibiting an individual
from continuing to engage in stalking.
Punishment. Stalking is a felony, and the penalty is aggravated when the stalking takes place in
violation of a court order specifically prohibiting these types of acts.
There have been more than fifty constitutional challenges to stalking statutes in over twenty
states based on the claim that the laws are vague and fail to inform individuals of the conduct that
is prohibited. These challenges for the most part have been rejected by the judges.
The Illinois statute provides that a person commits stalking when he or she “on at least 2
separate occasions” follows another person or places the person under surveillance or any combi-
nation of these two acts. This must be combined with the transmittal of a threat of immediate or
future bodily harm, or the placing of a person in reasonable apprehension of immediate or future
bodily harm, or the creation of a reasonable apprehension that a family member will be placed in
immediate or future bodily harm. These acts, when combined with the causing of bodily harm, the
restraining of the victim, or the violation of a judicial order prohibiting such conduct, constitute
aggravated stalking.37
The California stalking statute, Penal Code Section 649, provides that “[a]ny person who will-
fully, maliciously, and repeatedly follows or willfully and maliciously harasses another person, and
who makes a credible threat with the intent to place that person in reasonable fear for his or her
safety, or the safety of his or her immediate family, is guilty of the crime of stalking.” Stalking is
punished by imprisonment in a county jail for not more than one year, or by a fine of not more
than $1,000, or by both a fine and imprisonment, or by imprisonment in the state prison. The
punishment is enhanced where the stalker is in violation of a court order prohibiting the behavior.
A federal law, 18 U.S.C. § 2261(A)(1), makes it a crime to cross state lines with the intent to
kill, injure, harass, or intimidate an individual and punishes one who commits an act of violence
against a spouse, intimate partner, or dating partner.
Illinois, along with other states and the federal government, has passed laws to combat the
new crime of cyberstalking. This involves transmitting a threat through an electronic device of
immediate or future bodily harm, sexual assault, confinement, or restraint against an individual or
family member of that person. The threat must create a “reasonable apprehension of immediate or
future bodily harm, sexual assault, confinement, or restraint.”38
The California Penal Code, in Section 646.9(h), provides that a credible threat may be made
through an electronic communication device, “including telephones, cellular phones, computers,
video recorders, fax machines or pagers.”
Florida, in Section 784.048, defines cyberstalking as “to engage in a course of conduct to
communicate, or to cause to be communicated, words, images, or language by or through the use
of electronic mail or electronic communication, directed at a specific person, causing substantial
emotional distress to that person and serving no legitimate purpose.”
The courts confront the challenge of distinguishing between free speech and freedom of move-
ment and stalking.
You Decide 8.2 Defendant Kevin Ellis and punishing him and asking how she could want to be
Sarah S. attended the same high friends and yet not want to talk to him. Defendant sent
school and met while they both her an additional e-mail in which he asked Sarah to give
were sophomores. They shared a him a chance to be her friend again. Kevin approached
table at lunchtime, and Sarah her several weeks later and apologized and asked if
allegedly felt sorry for Kevin because he did not have a they could do something together. Sarah responded
lot of friends. During the spring of their junior year, Kevin “perhaps.” He then e-mailed Sarah, who stated she
sent Sarah an e-mail revealing that he had a crush on was unavailable. Kevin explained that he was only try-
her. Sarah responded that she had a boyfriend and that ing to be her friend. At some point over the summer,
there was “no chance” they could ever be anything other Sarah requested that Kevin never call her at home
than friends. Kevin waited outside her classes to talk to again. Kevin, following an after-school sporting event,
her and bought her a number of small gifts and contin- approached Sarah and her brother and asked for a ride
ued to send her e-mails. Sarah occasionally included to his car in an adjacent lot, which they refused. In
the defendant on e-mails she sent to a large group. October, Kevin spotted the victim along with her brother
Kevin during the summer break called Sarah twice and mother at a shopping mall and approached the
at her home. The second time, she quickly ended the victim’s brother in the checkout line and attempted to
conversation, and the defendant sent Sarah several engage him in a conversation.
e-mails. Sarah responded that she wanted to be friends, Sarah’s father was the chief of police and
but “you need to back off a little bit.” Kevin replied with approached Kevin and told him not to contact or harass
an expletive-filled angry e-mail that asked why she was Sarah. Kevin approached Sarah the next day at school,
and Sarah told him that she had been trying to tell him prosecution argued that the defendant engaged in a
to leave her alone for months. Defendant sent her an course of conduct that “would cause a reasonable per-
e-mail that day in which he said that he “just need[ed] son to fear for his or her physical safety or would cause
a friend” and that he was “only asking for some closure a reasonable person substantial emotional distress.”
now.” Kevin later approached Sarah between classes at Would you convict Kevin of stalking Sarah? State v.
school, and her boyfriend stepped between them. The Ellis, 979 A.2d 1023 (Vt. 2009).
THE COMMON LAW OF RAPE

The common law treated rape as a capital crime punishable by death.39 In the United States,
only homicide has been historically considered more serious than rape. In 1925, nineteen states
and the District of Columbia, as well as the federal government, punished rape with capital
punishment. This was particularly controversial because the penalty of death for rape was almost
exclusively employed against African Americans, particularly when accused of raping Caucasian
women. By 1977, only Georgia provided capital punishment for rape. In that same year, the
U.S. Supreme Court declared the death penalty for rape unconstitutional on the grounds that it
was disproportionate to the harm caused by the rape.40 This holding was affirmed in Kennedy v.
Louisiana, in which the Court held that the death penalty was excessive punishment for the rape
of a child.41
Today, most states divide rape into degrees of seriousness that reflect the circumstances of the
offense. Aggravated rape may result in incarceration for a significant period of time and, in some
jurisdictions, for life in prison. As discussed below, the term rape has been replaced in a number of
state statutes by the term sexual assault.
The law of rape was rooted in the notion that a man’s daughters and wife were his property,
and that rape involved a trespass on a male’s property rights. In fact, for a brief period of time, the
common law categorized rape as a trespass subject to imprisonment and fine. William Blackstone
recounts that under ancient Hebraic law, the rape of an unmarried woman was punishable by a
fine of fifty shekels paid to the woman’s father and by forced marriage without the privilege of
divorce. The commentary to the MPC observes that the notion of “the wife as chattel” is illustrated
by the fact that as late as 1984, forty states recognized a “marital exemption” that provided that
a husband could not be held liable for the rape of his wife. Seventeenth-century English jurist Sir
Matthew Hale explained that this exemption was based on the fact that a wife by “matrimonial
consent and contract” had forfeited the privilege of refusing sexual favors to her husband.42
The law of rape is no longer an expression of property rights and today is designed to punish
individuals who violate a victim’s bodily integrity, psychological health and welfare, and sexual
independence. The stigma and trauma that result from rape contribute to the reluctance of rape
victims to report the crime to law enforcement authorities. Another factor contributing to the
hesitancy of victims to report a rape is a lack of confidence that the criminal justice system will
seriously pursue the prosecution and conviction of offenders.43
The criminal justice system is fairly effective in prosecuting what Professor Susan Estrich calls
“real rape,” or cases in which the victim is attacked by an unknown male. In such instances, the
prosecution has little difficulty in demonstrating that the victim was forcibly subjected to sexual
molestation. A greater challenge is presented in the area of so-called acquaintance rape, or date
rape. In these cases, although no less serious, the perpetrator typically admits that sexual inter-
course occurred and claims that it was consensual, while the victim characterizes the interaction
as rape.44 The reluctance to report rape may be most prevalent in the largely undocumented area
of same-sex rape, which is a particularly serious problem in correctional institutions.45
In reading about rape, keep in mind that jurors and judges are likely to bring a host of preju-
dices and preconceptions regarding the proper behavior of men and women to their consideration
of the facts. Although rape is categorized as a sexual offense, commentators stress that rape is a
crime that involves the assertion of control and power over victims, most of whom are women.
What types of issues do you anticipate may arise in rape prosecutions?46
The Elements of the Common Law of Rape

The common law defined rape as the forcible carnal knowledge of a woman against her will.
Carnal knowledge for purposes of rape is defined as vaginal intercourse by a man with a woman
who is not his wife. The vaginal intercourse is required to be carried out by force or threat of severe
bodily harm (“by force or fear”) without the victim’s consent.47
The common law of rape reflects a distrust of women, and various requirements were imposed
to ensure that the prosecutrix (victim) was not engaged in blackmail or in an attempt to conceal
a consensual affair or was not suffering from a psychological illness. The fear of an unjust convic-
tion was reflected in Sir Hale’s comment that rape “is an accusation easy to be made, hard to be
proved, but harder to be defended by the party accused though innocent.” Sir Hale stressed that
there was a danger that a judge and jury would be emotionally carried away by the seriousness of
the charge and convict a defendant based on false testimony.48
The prosecution, as noted, was required to overcome a number of hurdles under the common
law in order to convict the defendant.49
•• Immediate Complaint. The absence of a prompt complaint by the victim to authorities was
evidence that the complaint was not genuine.
•• Corroboration Rule. The victim’s allegation of rape required corroboration, evidence such
as physical injury or witnesses.
•• Sexual Activity. The victim’s past sexual conduct or reputation for chastity was admissible as
evidence of consent or on cross-examination to attack her credibility.
•• Judicial Instruction. The judge was required to issue a cautionary instruction to the jury that
the victim’s testimony should be subject to strict scrutiny because rape is a crime easily
charged and difficult to prove.
The crucial evidence in a prosecution for rape under the common law was a demonstration
that the female “victim” did not consent to the sexual intercourse. Blackstone writes that a “nec-
essary ingredient” in the crime of rape is that it is against the woman’s will. He notes that it is a
felony to forcibly ravish “even a concubine or harlot because the woman may have forsaken that
unlawful course of life.”50
The victim’s lack of consent was demonstrated through outward resistance. In reference to
sexual advances, a victim was required to resist to the utmost in order to establish a lack of con-
sent. This expectation of combat against an attacker was viewed as reflecting “the natural instinct
of every proud female to resist.”51 In Brown v. State, a sixteen-year-old woman recovering from the
measles was attacked on a path near her family farm. The young woman was a virgin and testified
that she tried as “hard as I could to get away” and “screamed as hard as I could . . . until I was
almost strangled.” The Wisconsin Supreme Court ruled that the prosecutrix failed to demonstrate
that “she did her utmost” to resist. This not only requires “escape or withdrawal,” but involves resis-
tance “by means of hands and limbs and pelvic muscles.” The alleged victim also failed to corrob-
orate her complaint by “bruises, scratches and ripped clothing.”52 Courts did rule that resistance to
the “utmost” was not required when the woman reasonably believed that she confronted a threat
of “great and immediate bodily harm that would impair a reasonable person’s will to resist.”53
In the mid-twentieth century, judges began to relax this harsh resistance requirement. A
few courts continued to require a fairly heavy burden of earnest resistance. Most, however,
adopted the position that a victim was required to engage in reasonable resistance under the
circumstances.54
Resistance is not required under the common law standard when a victim is incapable of
understanding the nature of intercourse as a result of intoxication, sleep, or a lack of conscious-
ness.55 Another exception is so-called fraud in the factum or “fraud in the nature of the act.”
In People v. Minkowski, a woman consented to treatment for menstrual cramps by a doctor who
proceeded to insert a metal instrument. During the procedure, he withdrew the metal object and
without the consent of the patient inserted his sexual organ. The California court ruled that this
was rape because the victim consented to a medical procedure and did not consent to intercourse.56
This is distinguished from fraud in inducement or consent to intercourse that results from a
misrepresentation as to the purpose or benefits of the sexual act. In one well-known case, a female
consented to intercourse with a donor after being tricked into believing that the donor had been
injected with a serum that would cure her alleged disease. The California appellate court ruled that
this was not rape because the victim consented to the “thing done” and the fraud related to the
underlying purpose rather than to the fact of the sexual interaction.57
Rape Reform
During the 1970s and 1980s, a number of states abolished the special procedures surrounding the
common law of rape. This included the corroboration and prompt reporting provisions and the
judge’s cautionary instructions to the jury. Another important development that we will discuss
later in the chapter is the adoption of rape shield laws prohibiting the introduction of evidence
concerning a victim’s past sexual activity.
The commentary to the MPC justifies these reforms on the grounds that rape trials had
become focused on the sexual background and resistance of victims rather than on the conduct of
defendants. The extraordinary resistance standard placed women in a “no win” situation. Resistance
might lead to violent retaliation; a failure to resist might result in the defendant’s acquittal.58
A number of states adopted new sexual assault statutes that fundamentally changed the law
of rape. The statutes treat rape as an assault against the person rather than as an offense against
sexual morality. These statutes refer to “criminal sexual conduct” or “sexual assault” rather than
rape. The modified statutes widely differ from one another and typically incorporate one or more
of the following provisions59:
•• Gender Neutral. A male or a female may be the perpetrator or the victim of rape.
•• Degrees of Rape. Several degrees of rape are defined that are distinguished from one another
based on the seriousness of the offense. These statutes provide that involuntary sexual pen-
etration is more serious than involuntary contact and that the use of force results in a more
serious offense than an involuntary contact or penetration that is accomplished without the
use of force.
•• Sexual Intercourse. “Sexual intercourse” is expanded to include a range of forced sexual activ-
ity or forced intrusions into a person’s body, including oral and anal intercourse and the
insertion of an object into the genital or anal opening of another. Some statutes also pro-
hibit “sexual contact” or the intentional and nonconsensual touching of an intimate portion
of another individual’s body for purposes of sexual gratification.
•• Consent. Some statutes provide that consent requires free, affirmative, and voluntary coop-
eration or that resistance may be established by either words or actions.
•• Coercion. There is explicit recognition that coercion may be achieved through fraud or psy-
chological pressure as well as through physical force.
•• Marital Exemption. A husband or wife may be charged with the rape of a spouse.
•• Rape Shield Statutes. Evidence of a victim’s prior sexual activity with individuals other than
the defendant is inadmissible in evidence.60
The important point to keep in mind is that these statutes have removed the barriers that have
made rape convictions so difficult to obtain. States such as Michigan have adopted far-reaching
reforms, whereas states such as Georgia have introduced only modest changes. A number of states
as noted above now use the term sexual assault rather than rape in their criminal statutes to avoid
the adjudication of criminal charges being influenced by the preconceptions and prejudices asso-
ciated with rape.
An additional modern innovation in the law of rape is that some courts permit victims to
present expert witnesses on the issue of rape trauma syndrome (discussed in this chapter). This
expert evidence is intended to support the victim’s contention that she was raped by pointing out
that the victim’s psychological and medical condition is characteristic of rape victims. In other
instances, experts are employed to educate the jurors that rape victims often have a delayed reac-
tion and that the jurors should not conclude that an individual was not raped because the com-
plainant did not immediately bring charges of rape or was seemingly calm and collected following
the alleged attack.61
Punishment and Sexual Assault

Sexual assault in Vermont involves compelling another person to participate in a sexual act without
consent by threatening or coercing the other person, by placing the other person in fear of imminent
bodily injury, by substantially impairing the ability of the other person through drugs or intoxicants
without his or her knowledge or against his or her will, or when the victim is under fifteen years of
age and the perpetrator is at least nineteen years of age. Sexual assault is punishable by a minimum
of three years and a maximum of life imprisonment and by a fine of up to $25,000. Aggravated
sexual assault in Vermont entails any one of a long list of factors including causing serious physical
injury to the victim or to another; the perpetrator being joined by others in restraining, assaulting,
or sexually assaulting the victim; the sexual act being committed under circumstances that consti-
tute kidnapping; the perpetrator previously having been committed of sexual assault; the perpetrator
being armed and threatening the victim with a deadly weapon or threatening to cause imminent
serious bodily injury or applying deadly force; or the victim being under the age of thirteen and the
perpetrator being at least eighteen. Aggravated sexual assault is punishable by between ten years in
prison and life in prison and by a fine of up to $25,000. The statute of limitations for bringing a charge
of sexual assault is six years, although there is no statute of limitations for aggravated sexual assault.62
In Indiana, an individual commits the crime of rape by engaging in sexual penetration with a
person by force or threat of force, when the victim is unaware that sexual intercourse is occurring,
or when the victim is unable to consent because of a mental disability. Rape is punishable by six
to twenty years in prison and by a fine of up to $10,000. Aggravated rape involves sexual inter-
course when the perpetrator uses or threatens to use deadly force, severely injures an individual
other than the victim, is armed with a deadly weapon, gives the victim drugs, or knew that the
victim had been given drugs without the victim’s knowledge. Aggravated rape is punishable by
twenty to fifty years in prison and by a fine of up to $10,000. Indiana extends the five-year statute
of limitations an additional five years if DNA evidence is discovered or in the event of a confession
by the perpetrator or other new evidence.63 Roughly thirty-four states have a statute of limitations
of between three and thirty years for rape or sexual assault, although some states extend the statute
of limitations if DNA evidence is discovered.
Individuals convicted of sexual offenses in virtually every state are required to register as sexual
offenders. The U.S. Supreme Court in Stogner v. California64 and in Smith v. Doe65 held that registra-
tion does not constitute criminal punishment and does not result in an offender being subjected
to “double jeopardy.” Offenders are required to register with government authorities, and their
name, criminal conviction, photo, residence, and other information is posted on the Internet. The
Court held that this does not constitute “double jeopardy” because it is a civil regulation intended
to inform and to protect the public rather than to punish sexual offenders. Offenders are free to
live their life without physical restraint. A number of communities restrict sexual offenders’ abil-
ity to live near schools, playgrounds, and other areas in which children are found. In 2014, the
Pennsylvania Supreme Court held that the sex offender law, which required juvenile sex offenders
to register for life, violated due process because it was not “universally true” that these offenders
continue to pose a threat to the community for their entire lives.66
The Actus Reus of Modern Rape

The actus reus of rape or what in most states is termed sexual assault requires the sexual penetration
of the body of a rape victim by force. There are three approaches to defining the actus reus. One
group of states adheres to the common law and punishes genital copulation. A second group of
states that has followed the MPC expands this to include anal and oral copulation. A third group
of states includes digital penetration and penetration with an instrument as well as genital, anal,
and oral sex. The MPC and states such as Utah punish this last form of penetration as a less serious
form of sexual assault.67
The FBI, until recently, followed the common law definition of rape in the Uniform Crime
Reports. The definition of rape was modified and is defined as “[t]he penetration, no matter how
slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of
another person, without the consent of the victim.”
Virtually all jurisdictions have adopted gender-neutral statutes that provide that women as well
as men may be the perpetrators or victims of rape. A woman, for instance, may be an accomplice
to the rape of a male by restraining a male victim while he is being subjected to homosexual rape.
As for sexual penetration, California’s statute reflects the majority rule by providing that “sexual
penetration, however slight, is sufficient to complete the crime.” An emission is not required.68
An Arizona appellate court noted that it was following the majority rule in affirming the rape
conviction of an impotent defendant who was unable to attain an erection and only achieved a
penetration of roughly one inch.69
The essence of the actus reus of the common law crime of rape remains the employment of force
to cause another individual to submit to sexual penetration without consent. How much force is
required? Professor Wayne LaFave observes that courts have followed two distinct approaches.70
The first is the extrinsic force approach that requires an act of force beyond the physical
effort required to accomplish penetration. This ensures that the penetration is without the victim’s
consent. A young college student entered Berkowitz’s dorm room to visit Berkowitz’s roommate.
Berkowitz approached the young woman who had taken a seat on the floor, straddled her, and
began fondling her. The victim objected, and Berkowitz attempted to place his penis in her mouth.
She continued to say “no.” Berkowitz pushed the victim down on the bed and had intercourse
with her. She did not physically resist or vocally protest although she continued to say “no.” The
Pennsylvania Supreme Court reversed Berkowitz’s rape conviction and held that “[w]here there is a
lack of consent, but no showing of either physical force, a threat of physical force, or psychological
coercion, [the] ‘forcible compulsion’ requirement . . . is not met.” The degree of “forcible compul-
sion must be sufficient to prevent resistance by a person of reasonable resolution.” In other words,
in Berkowitz, the Pennsylvania Supreme Court held that the defendant did not use sufficient force
or sufficient threat of force to prevent a reasonable female from physically resisting the assault.
Absent resistance, the Supreme Court concluded that the prosecution had failed to establish a lack
of consent on the part of the victim.71
Keep in mind that the force requirement may be satisfied by a threat of force as well as by the
application of force. Statutes make this clear by stating that penetration may be accomplished by
“force or threat of force,” by “force or coercion,” or by “force or fear.” In other words, actual force
is not required. There are two requirements that must be satisfied. First, there must be a threat of
death or serious personal injury. Second, the victim’s fear that the assailant will carry out the threat
must be reasonable. The California statute provides that sexual intercourse constitutes rape where
accomplished by “threatening to retaliate in the future . . . and there is a reasonable possibility
that the perpetrator will execute the threat. . . . Threatening to retaliate means a threat to kidnap
or falsely imprison or to inflict extreme pain, serious bodily injury, or death.” The California stat-
ute also states that the threat requirement is satisfied where a public official threatens to “incar-
cerate, arrest, or deport the victim or another.”72 Michigan provides that a person is guilty of
criminal sexual conduct where an individual engages in sexual penetration with another under
circumstances in which the “actor is armed with a weapon or any article . . . fashioned . . . to lead
the victim to reasonably believe it to be a weapon.”73
The intrinsic force standard requires only the amount of force required to achieve penetration.
The intrinsic force standard is based on the insight that there may be a lack of consent despite the
fact that the perpetrator employs little or no force to achieve penetration. The thinking is that the
stress on force and resistance under the extrinsic standard has “worked to the unfair disadvantage
of the woman who, when threatened with violence, chose . . . quite rationally to submit to her
assailant’s advances rather than risk death or serious bodily harm.”74
In M.T.S., the seventeen-year-old defendant and fifteen-year-old victim were kissing one
another when the defendant unexpectedly “penetrated” the young woman on three instances in
rapid succession. The New Jersey Supreme Court held that M.T.S. had committed a rape based on
the young woman’s lack of consent. The Court stressed that the New Jersey statute had categorized
rape as a sexual battery and did not employ the term rape. This suggests that the focus of the law
is on whether the female consented to the sexual interaction and that “in order to convict under
the sexual assault statute . . . the State must prove beyond a reasonable doubt that there was sexual
penetration and that it was accomplished without the affirmative and freely given permission of
the alleged victim.”75 Professor Joshua Dressler notes that the central question under the intrinsic
test is whether the female expressed a “‘yes’ in words or action—before proceeding.”76
We have already mentioned that force is not required where penetration is achieved through
fraud or when the victim is unconscious, asleep, or insane and is unaware of the nature of the
sexual penetration. The California statute provides for rape when the victim is “prevented from
resisting by any intoxicating or anesthetic substance, or any controlled substance” or where an

individual is “unconscious of the nature of the act.”77
Several states have extended the actus reus for rape and declare that it is criminal to use a
position of trust to cause another person to submit to sexual penetration. Texas, for instance,
Read has provisions covering public servants, therapists, and nurses. Clergy are held liable for causing
Commonwealth
another person to submit or participate in a sexual act by “exploiting the other person’s emotional
v. Berkowitz and
In the Interest of dependency.”78 Pennsylvania defines “forcible compulsion” to mean “physical, intellectual, moral,
M.T.S. on the emotional or psychological force either express or implied.”79
study site: study
.sagepub.com/
lippmaness2e.
Mens Rea
Rape at common law required that the male defendant intended to engage in vaginal intercourse
with a woman who he knew was not his wife, through force or the threat of force. There was no
clear guidance as to whether a defendant was required to be aware that the intercourse was with-
out the female’s consent. This issue remained unsettled for a number of years and only has been
resolved in the last several decades with the view that rape is a general intent crime.
The majority of states accept an “objective test” that recognizes it is a defense to rape that a
defendant honestly and reasonably believed that the rape victim consented. This doctrine was first
recognized by the California Supreme Court in People v. Mayberry. The prosecutrix claimed that
she had been kidnapped while shopping and had involuntarily accompanied the kidnapper to an
apartment where she was raped by the defendant and another male. The defendant denied the
accusations and characterized the victim’s story as “inherently improbable.”
The California Supreme Court ruled that the defendant was entitled to have the jury receive
a mistake of fact instruction, reasoning that the state legislature must have intended that such a
defense be available, given the seriousness of the charge. The court accordingly held that a defen-
dant who “entertains a reasonable and bona fide belief that a prosecutrix voluntarily consented to
accompany him and to engage in sexual intercourse . . . does not possess the wrongful intent that
is a prerequisite . . . to a conviction of rape by means of force or threat.”80
The objective test typically requires equivocal conduct, meaning that the victim’s nonconsen-
sual reactions were capable of being reasonably, but mistakenly, interpreted by the assailant as
indicating consent. In the prosecution of heavyweight boxing champion Mike Tyson for the rape
of a contestant in a beauty pageant that he was judging, the Indiana Court of Appeals held that
Tyson was not entitled to a reasonable mistake of fact defense. Tyson’s testimony indicated that
the victim freely and fully participated in their sexual relationship. The victim, on the other hand,
testified that Tyson forcibly imposed himself on her. The appellate court ruled that “there is no rec-
itation of equivocal conduct by D.W. [the victim] that reasonably could have led Tyson to believe
that D.W. . . . appeared to consent . . . [N]o gray area existed from which Tyson can logically argue
that he misunderstood D.W.’s actions.”81

A 2007 Department of Justice study determined that hundred public and private institutions have adopted
one in five college women has been a victim of sexual the “Yes Means Yes” standard. Affirmative consent
assault. In 2014, California followed the recommenda- under the California law is defined as follows:
tion of a White House task force on sexual assault on “Affirmative consent” means affirmative, con-
campus and adopted a “Yes Means Yes” law designed scious, and voluntary agreement to engage in sexual
to combat sexual assaults on campus. Colleges and activity. It is the responsibility of each person involved
universities receiving state financial aid funds under in the sexual activity to ensure that he or she has the
the California statute are required to adopt an affirma- affirmative consent of the other or others to engage in
tive consent standard in determining whether a sexual the sexual activity. Lack of protest or resistance does
assault occurred. New York later became the second not mean consent, nor does silence mean consent.
state to adopt a statewide, campus affirmative con- . . . The existence of a dating relationship between the
sent law, and it is estimated that as many as eight persons involved, or the fact of past sexual relations
between them, should never by itself be assumed to involved in a sexual interaction and that is easily
be an indicator of consent. An individual who is inebri- applied by university panels. The affirmative consent
ated or under the influence of narcotics is considered standard also will provide greater confidence in the
to be incapable of consent and the fact that the indi- fairness of the process of adjudicating sexual assaults
vidual accused of sexual assault is intoxicated is not on campus.
a defense. Critics assert that the law is unworkable because
This legal standard does not modify the legal stan- there is a lack of certainty regarding what is required
dard followed in prosecutions in the criminal or civil to establish affirmative consent and as a result indi-
justice systems. viduals will be subject to liability without definite stan-
Affirmative consent is ongoing, meaning that the dards. Legally regulating sexual relationships between
fact that two individuals were in a relationship or have young people is bound to fail. Sexual interactions are
engaged in sexual activity in the past is not a defense. not based on contract negotiations and often are spon-
Consent may be revoked at any time. In adjudicating taneous without either party asking for the consent of
guilt, disciplinary committees are required by the U.S. the other. A university panel will find it almost impossi-
Department of Education to apply a “preponderance ble to reconstruct the sexual interaction between the
of the evidence” standard (51 percent) rather than the individuals and to disentangle conflicting versions of
“beyond a reasonable doubt” standard that is followed what transpired.
in the criminal justice process. Critics also point out that the consequences of
The rationale for the affirmative consent standard a student being held liable for sexual assault are too
is that the traditional requirement that the assailant serious for guilt to be based on a “more likely than
must use a degree of force inconsistent with consent not” rather than “beyond a reasonable doubt” stan-
in most instances requires women to say “no” and dard. Application of the “more likely than not” standard
to resist in order to successfully establish a sexual in the past has led to a number of legal actions against
assault. The California and New York laws by requir- universities by individuals who have been determined
ing that that an individual provide affirmative consent to be responsible for sexual assault and expelled or
are thought to provide a needed degree of restraint suspended by college disciplinary committees.
on overly aggressive sexual partners, particularly when In the last analysis, critics contend that the affir-
one or both of the partners are inebriated. mative consent law is part of a trend toward the intro-
Proponents of the affirmative consent law argue duction of an unhealthy degree of political correctness
that there is a need for a clear standard that will on college campuses. Do you support the California
prevent misunderstandings between the individuals affirmative consent law?
You Decide 8.3 The victim was an eighteen- was—he was so much bigger than I was, and, you
year-old high school senior who at know, I was in a room alone with him, and there was
the time was working as a sales nothing, no buildings around us, or anything, and I
clerk. She was at work when the mean [it] wouldn’t [have] helped if I wouldn’t—help me
defendant, Randy Jay Goldberg, if I didn’t. It was like being trapped or something.” On
entered the store and claimed that he was a freelance cross-examination, she said she was “afraid” she was
talent agent and that the victim was an excellent can- “going to be killed.”
didate for a successful modeling career. The defen- Goldberg “pushed” her down on the bed and tried
dant actually was a community college student driving “to move [her legs] in different ways, and [she] kept
his mother’s Cadillac Eldorado. Goldberg drove the vic- pulling them together, and telling him that [she] didn’t
tim to a condominium, which he said was his studio. want to do it, and just wanted to go home.” He kept tell-
They entered the bedroom, and the defendant per- ing her “just to relax.” But she was “just really scared,”
suaded the victim to remove one item of clothing after and she was “shaking and my voice was really shaking”
another. The victim said that she removed her clothes and she “kept on telling him [she] wanted to go home”
because she “was really scared of him” and that and that “[she] didn’t want to do this”; that she “didn’t
“[t]here was nothing I could do.” When asked what want to be a model, and [she] didn’t want to do it any
caused her to be frightened, she said, “Because he more. Just to let [her] alone.” When asked “And what
(Continued)
(Continued)
was his reaction?” she testified that Goldberg was A person is guilty of rape in the first degree if
“really cool.” the person engages in vaginal intercourse with
another person by force against the will and
And then he put his arms up on my stomach without the consent of the other person and:
and his torso was in between my legs. He said
just take your time; take a deep breath. And ...
then he moved up on me and placed his penis (3) threatens or places the victim in fear that
in my vagina. the victim . . . will be imminently subjected
. . . I squeezed my legs together and got really to death, suffocation, strangulation, disfigure-
tense, and I just started crying real hard. And ment, serious physical injury, or kidnapping.
I told him not to do that to me. . . . [After ejac- Would you convict Goldberg of rape? See Goldberg
ulating h]e got up and he said that if I can’t v. State, 41 Md. App. 58 (1979).
enjoy it, then he can’t enjoy it.
The relevant Maryland statute for first-degree rape

at the time read as follows:
Statutory Rape
Having sexual relations with a juvenile was not a crime under early English law as long as there
was consent. This was modified by a statute that declared that it was a felony to engage in vaginal
intercourse with a child younger than the age of ten, regardless of whether there was consent. This
so-called statutory rape was incorporated into the common law of the United States. American
legislatures gradually raised the age at which a child was protected against sexual intercourse to
between eleven and fourteen. Statutory rape is based on several considerations82:
•• Understanding. A minor is considered incapable of understanding the nature and conse-

quences of his or her act.
•• Harmful. Sexual relations are psychologically damaging to a minor and may lead to
pregnancy.
•• Social Values. This type of conduct is immoral and is contrary to social values.
•• Vulnerability. The protection of females is based on the fact that males are typically the
aggressors and take advantage of the vulnerability of immature females.
The general rule is that statutory rape is a strict liability offense in which a male is guilty of
rape by engaging in intercourse with an “underage” female. This rule is intended to ensure that
males will take extraordinary steps to ensure that females are of the age of consent.
Commentators have viewed strict liability for statutory rape as unjust in the case of a young
woman who is physically mature and misrepresents her age. Defendants also have unsuccessfully
claimed that males are singled out for prosecution while females rarely are charged with statutory
rape. One reform is to provide that defendants can offer a “promiscuity defense” and document
that the victim has had multiple sex partners and can be presumed to have possessed the capacity
to appreciate the nature of her act and to have knowingly consented to a sexual relationship. A
second approach is to divide the offense into various categories and to provide for more severe
penalties for sexual relationships involving younger women. A third approach involves so-called
Romeo and Juliet laws, which recognize that young people will engage in sexual experimenta-
tion and that statutory rape should not be a crime where the parties are roughly the same age, or it
should be punished less severely. Forty-five states now recognize statutory rape as a gender-neutral
offense; only five states still restrict guilt to males.83
You Decide 8.4 The Maryland statutory rape Maryland’s functional tests required for graduation and
law in 1993 provided that it was a received only a certificate of attendance rather than
felony punishable by not more than a high school diploma. He was introduced by a friend
twenty years in prison for a person to Erica Frazier, thirteen, and was told that she was
to engage in vaginal intercourse sixteen. The two of them talked on various occasions,
with an individual “who is under 14 years of age and the and one evening they engaged in sexual intercourse
person performing the act is at least four years older after she invited him to climb through her bedroom win-
than the victim.” dow. Erica subsequently gave birth to a baby. Raymond
Raymond Leonard Garnett is described as a twen- was convicted of statutory rape and was sentenced to
ty-year-old, mentally challenged young man with an IQ a suspended sentence of five years in prison and five
of fifty-two. He read on the third-grade level, performed years’ probation, and was ordered to pay restitution to
arithmetic on a fifth-grade level, and interacted with Erica and to Erica’s family.
others socially at the level of someone eleven or twelve Do you agree with the verdict and the sentence?
years of age. Raymond was unable to pass any of See Garnett v. State, 632 A.2d 797 (Md. 1993).
Withdrawal of Consent
In 2003, Illinois became the first state to pass a law on the withdrawal of consent. This legisla-
tion provides that a person “who initially consents to sexual penetration or sexual conduct is not
deemed to have consented to any sexual penetration or sexual conduct that occurs after he or she
withdraws consent during the course of that sexual penetration or conduct.”84 Read People v.
The Illinois law was passed in reaction to disagreement among courts in California as to John Z. on the
whether an individual who continues sexual intercourse following the other party’s withdrawal of study site: study
.sagepub.com/
consent is guilty of rape. The California Supreme Court resolved this conflict in People v. John Z.,
lippmaness2e.
holding that “forcible rape occurs when the act of sexual intercourse is accomplished against the
will of the victim by force or threat of bodily injury and it is immaterial at what point the victim
withdraws her consent, so long as that withdrawal is communicated to the male and he thereafter
ignores it.”85 The decision in John Z. has been followed by courts in a majority of states. Do you
believe that a male who continues sexual relations under such circumstances is guilty of rape?
Rape Shield Statute

The common law permitted the defense to introduce evidence concerning a victim’s prior sexual
relations with the accused, prior sexual relations with individuals other than the accused, and evi-
dence concerning the alleged victim’s reputation for chastity. Would you find this type of evidence
valuable in determining the defendant’s guilt or innocence?
The law continues to permit the introduction of evidence relating to sexual activity between
the accused and victim. The assumption is that an individual who voluntarily entered into a rela-
tionship with a defendant in the past is more than likely to have again consented to enter into
a relationship with the accused. The thinking is that the defendant is entitled to have the jury
consider and determine the weight (importance) to attach to this evidence in determining guilt.
Rape shield laws prohibit the defense from asking the victim about or introducing evidence
concerning sexual relations with individuals other than the accused or introducing evidence con-
cerning the victim’s reputation for chastity. The common law assumed that such evidence was
relevant in that an individual who has “already started on the road of [sexual unchastity] would
be less reluctant to pursue her way, than another who yet remains at her home of innocence and
looks upon such a [pursuit] with horror.”
The other reason for this evidence was the belief that the jury should be fully informed con-
cerning the background of the alleged victim in order to determine whether her testimony was
truthful or was the product of perjury or of a desire for revenge.86
Rape shield laws prohibiting evidence relating to a victim’s general sexual activity are based
on several reasons:
•• Harassment. To prevent the defense attorney from harassing the victim.

•• Relevance. The evidence has no relationship to whether the victim consented to sexual rela-
tions with the defendant and diverts the attention of the jury from the facts of the case.
•• Prejudice. The evidence biases the jury against the accused.
•• Complaints. Victims are not likely to report rapes if they are confronted at trial with evidence
of their prior sexual activity.
Rape shield laws do not prohibit the introduction of an accused’s past sexual activity in every
instance. The Sixth Amendment to the U.S. Constitution guarantees individuals a fair trial and
provides that individuals have the right to confront the witnesses against them. Courts have per-
mitted the introduction of a victim’s past activity with others in those instances when it is rele-
vant to the source of injury or semen or reveals a pattern of activity or a motive to fabricate. For
instance, the fact that a victim had a sexual relationship with a man other than the accused before
going to the hospital may be relevant for the source of injury or semen.
Consider the issue that confronted the trial court in State v. Colbath. The defendant and victim
were in a bar. The victim made sexually provocative remarks to the defendant and permitted him
to feel her breast and buttocks and rubbed his sexual organ. The two went to the defendant’s trailer
where they had sexual intercourse. The defendant’s significant other arrived and assaulted the
woman, who defended her behavior by contending that she had been raped by the defendant. The
trial judge rejected the defendant’s effort to introduce evidence of the alleged victim’s public sexual
displays with other men in the bar and evidence that the victim had left the bar with other men
prior to her approaching the defendant. The New Hampshire Supreme Court, however, held that
despite the rape shield law, the defendant’s Sixth Amendment right to confront witnesses against
him required admission of evidence of the victim’s conduct in the bar because it might indicate
that at the time the victim met the defendant, she possessed a “receptiveness to sexual advances.”87
On the other hand, in People v. Wilhelm, a Michigan appellate court upheld a ruling excluding
evidence that the victim had exposed her breasts to two men who were sitting at her table in a
bar and that she permitted one of them to fondle her breasts. The court ruled that the victim’s
conduct in the bar did not indicate that she would voluntarily engage in sexual intercourse with
the defendant.88
You Decide 8.5 Stephen F. (Child) appeals his bedroom. Child had been a friend of B.G.’s brother
convictions for two counts of crimi- and family for nine years, and he usually slept on the
nal sexual penetration and argues couch in the living room when he spent the night. B.G.
that the trial court improperly testified that after Child had headed for bed in the
excluded evidence of the alleged living room, he returned to her room and forced her to
victim’s past sexual activities. Child claimed that this engage in sexual conduct, including oral, vaginal, and
evidence would have demonstrated her motive to fabri- anal intercourse. The morning after the incident, B.G.
cate. Under Sections 30-9-11 through 30-9-15 of New told her mother that Child had raped her. Child was
Mexico Statutes, evidence of the victim’s past sexual convicted of two counts of criminal sexual penetration.
conduct and opinion evidence of the victim’s past sex- Child contended that the intercourse was consensual
ual conduct or of reputation for past sexual conduct and claimed that B.G. lied because she feared that
shall not be admitted unless, and only to the extent, the she would be punished by her religious parents. B.G.
court finds that the evidence is material to the case and previously had been punished by her parents after hav-
that its inflammatory or prejudicial nature does not out- ing had consensual sexual relations with her then boy-
weigh its probative value. friend. B.G. reportedly had told Child that her mother
Child (age fifteen) and the alleged victim (B.G., age “was really upset . . . [about my having engaged in
sixteen) engaged in sexual intercourse. Child, B.G., sex with my boyfriend;] she said that it was going
and B.G.’s brother had been watching movies in B.G.’s to take her a long time to trust me again, . . . about
three or four months[,] . . . and I wasn’t allowed to go issue: (1) whether there is a clear showing that com-
out on dates with guys.” Child’s theory was that B.G. plainant committed the prior acts; (2) whether the cir-
was motivated to fabricate the claim of rape because cumstances of the prior acts closely resemble those
she feared the punishment and disapproval of her of the present case; (3) whether the prior acts are
parents, devout Christians who “don’t believe in sex clearly relevant to a material issue, such as identity,
before marriage.” The State of New Mexico opposed intent, or bias; (4) whether the evidence is necessary
Child’s motion to permit the cross-examination of the to the defendant’s case; [and] (5) whether the pro-
complaining witness in regard to her prior sexual con- bative value of the evidence outweighs its prejudicial
duct with her boyfriend on the grounds that this was effect.
intended to portray the complaining witness as an indi- As a judge, would you permit Child to cross-exam-
vidual who is likely to engage in sexual activity outside ine the complaining witness in regard to her sexual con-
of marriage. According to the appellate court, there duct with her boyfriend? See State v. Stephen F., 152
are five areas to consider in making a decision on this P.3d 842 (N.M. Ct. App. 2007).
Rape Trauma Syndrome

Rape trauma syndrome refers to attitudes and behaviors that
scientists have identified after exhaustive study as being asso- Table 8.1 Top Ten States’ Rates of Rape in
ciated with being a rape victim (see discussion of rape trauma 2014 (per 100,000 Population)
syndrome earlier in the chapter). The Kansas Supreme Court
was the first court to admit expert witness testimony on rape State Rate
trauma syndrome.89 Every state court system has recognized
Alaska 75.3
the discretion of the trial court judge to permit the prosecu-
tion to introduce expert witness testimony on rape trauma New Mexico 51.4
syndrome.90
The expert witness testifies as to the behavior characteristic South Dakota 48.4
of an individual suffering from rape trauma syndrome evidence. Montana 42.0
Expert witnesses are witnesses whose academic or practical
background and experience make them specially qualified to Michigan 40.9
testify on a technical area that is outside the experience and
Arkansas 39.8
knowledge of the average juror. The expert, in most instances,
may not testify as to whether the victim is suffering from rape Colorado 39.6
trauma syndrome. This is a determination for the jury.
Courts have allowed experts to testify on rape trauma North Dakota 37.3
syndrome where the behavior of the alleged victim following Kansas 37.0
the rape does not conform to the type of behavior that the
average juror may believe is uncharacteristic of a rape victim. Arizona 36.6
The Colorado Supreme Court explained that expert testi- National rate, 26.4
mony is required because “[t]he lay notion of what behavior
logically followed the experience of being raped may not be
consistent with the actual behavior which social scientists Source: Kathleen O’Leary Morgan and Scott Morgan, eds.
have observed from studying rape victims.”91 State Rankings 2016: A Statistical View of America. Thousand
Expert witnesses testifying on the rape trauma syndrome Oaks, CA: CQ Press, 2016, p. 39.
also may be used by the prosecution to help the jury under-
stand the possible explanation for the victim’s delayed report of rape and submissive behavior and
to help resolve the dispute over whether the victim consented.92
The jury has responsibility for determining whether the victim’s reaction following the rape
is consistent with the rape trauma syndrome. Expert witness testimony on rape trauma syndrome
provides the jurors with prosecution evidence to help them understand the victim’s behavior fol-
lowing the alleged rape. The jurors may determine that even if the victim’s behavior matches the
rape trauma syndrome, they doubt her credibility (believability) or find the defense witnesses more
credible. The Indiana Supreme Court allowed a defendant to introduce expert witness testimony
on rape trauma syndrome to impeach the credibility of a victim who returned the evening fol-
lowing the alleged rape to the bar from which she claimed she had been abducted for a night of
drinking and dancing.93
SEXUAL BATTERY
Battery, as noted, also may involve an uninvited, offensive physical contact. California defines
sexual battery as the “touching against the will of the person touched” for the “specific purpose
of sexual arousal, sexual gratification or sexual abuse.” Sexual battery is punished by incarceration
in jail for up to six months and a fine of as much as $2,000. The fine is enhanced when the defen-
dant is the employer of the victim. In those instances when the defendant has a prior felony and
the victim is a minor, the defendant is subject to a prison sentence of between two and four years
and a fine of up to $10,000.94
A domestic battery in California against a spouse, a former spouse, or the mother or father
of the assailant’s child that results in a “traumatic condition” is punished as an aggravated felony.
This includes a “wound or external or internal injury including an injury resulting from strangu-
lation or suffocation.”95
Domestic battery typically is incorporated into statutes punishing domestic violence or vio-
lent crimes committed against any member of a household. Indiana defines the crime of domestic
violence as an “offense or the attempt to commit an offense” that “has as an element” of the “use
of physical force” or “the threatened use of a deadly weapon.” A court may impose a civil order
of protection against an individual who is demonstrated by a preponderance of the evidence to
pose a credible threat to an individual protected under the domestic violence statute. The order of
protection may require that the assailant vacate the home, pay child support, remain at a distance
from the victim, and turn over all firearms to the police. Individuals convicted of domestic vio-
lence also may be required to attend counseling sessions.96
The U.S. Congress established the offense of “interstate domestic violence” in 18 U.S.C. §
2261. This statute establishes criminal penalties for any “person who travels in interstate or foreign
commerce . . . with the intent to kill, injure, harass, or intimidate a spouse, intimate partner, or
dating partner, and . . . in the course or as a result of such travel, commits or attempts to commit a
crime of violence against that spouse or intimate partner.” A violation of this statute is punishable
by a minimum penalty of five years in prison.
The federal government and sixteen states provide criminal penalties for female genital mutila-
tion, a practice in which the sexual organs of young women are bound, to prevent premarital sex-
ual relations. The federal statute punishes “whoever knowingly circumcises, excises, or infibulates
the whole or any part of the labia majora or labia minora or clitoris of another person.” Those who
violate this statute are subject to a fine and imprisonment of not more than five years when the
victim is a person younger than eighteen.97

In late November 2004, Eagle County, Colorado, pros- of its entire budget. Basketball fans of the Lakers
ecutor Mark Hurlbert charged Los Angeles Lakers expressed relief that the twenty-four-year-old Bryant,
superstar basketball player Kobe Bryant with sexually who if convicted faced a possible prison sentence of
assaulting a nineteen-year-old woman. Fifteen months up to life, would be available to play for the Lakers.
later, the same prosecutor stood before the trial court Bryant entered the National Basketball Association
and was granted a motion by the judge to dismiss right out of high school at age eighteen and had been
the case. The prosecutor explained that the victim no selected to play in the NBA All-Star Game five times
longer desired to testify against Bryant. and already had played on three championship teams.
The Eagle County prosecutor’s office had spent Experts predicted that he would rank among the best
$230,000 on this unsuccessful prosecution, 10 percent players in league history by the time he retired.
Bryant insisted that the intercourse had been con- was willing to speak, leading to a blizzard of supportive
sensual. Observers, nevertheless, predicted that Bry- as well as skeptical comments. Two Lakers fans were
ant would never recover from the public humiliation. sufficiently upset to issue death threats against the
His squeaky clean public image had been tarnished by complainant, resulting in their imprisonment.
the public admission that he had committed adultery Documents and testimony from closed court
against his wife of two years, who had given birth to hearings were leaked to the press. This information
the couple’s first child in January. In fact, he admitted indicated that the complainant had sexual intercourse
during a police interview following his arrest that he with at least one other individual after she left Bryant
earlier had been involved with yet another woman. The and before she contacted the police. The judge would
transcript of Bryant’s conversation with the police indi- later rule that the defense was entitled to introduce
cates that he was primarily concerned with whether his evidence of the complainant’s sexual activity during
public image would be damaged and with the reaction the three days prior to her hospital examination on
of his wife. He initially denied intercourse with the com- July 1, 2003, on the grounds that this was relevant to
plainant and changed his mind after the investigators the cause of her injuries, the source of DNA, and her
informed him that the physical evidence indicated that credibility as a witness. Information was also leaked
the two had engaged in intercourse. documenting that she received a substantial amount
Several days following Bryant’s arrest, he pur- of money from a state victim compensation fund to
chased a $4 million diamond ring for his wife, who sup- address mental health concerns stemming from her
ported her husband throughout his legal ordeal. It later alleged sexual assault by Bryant.
was revealed that Bryant had contemplated divorce The news stories on Bryant marveled over the fact
several months earlier and that, as a result, his wife that he was able to attend court hearings and then fly
had been hospitalized and placed on life support. The hundreds of miles to Lakers games and still perform
mere bringing of the sexual assault charge against Bry- at a high level. Speculation focused on whether Bryant
ant resulted in his losing multimillion-dollar endorse- would continue to play with the Lakers when his contract
ments with leading American corporations. expired. This question was answered several months
The alleged victim worked at the front desk at a prior to the dismissal of the charges, when Bryant signed
spa located in a small mountain town one hundred a seven-year contract for more than $136.4 million.
miles west of Denver where Bryant was staying while Following the dismissal of the charges against
preparing for knee surgery at a nearby clinic. Bryant Bryant, fans expressed relief, and the Lakers issued
invited her to his room. She initially alleged that he a statement of support. Bryant circulated a press
immediately assaulted her and then later indicated release in which he recognized that although he viewed
that Bryant unexpectedly escalated a consensual the affair as consensual, “she did not,” and he issued
encounter and that she had cried and at least twice an apology to the complainant and her family for his
said “no” as he pushed her over a chair and entered behavior. Advocates for victims of sexual assault were
her from the rear. quoted as bemoaning that the Bryant case would have
The media quickly shifted the focus from Bryant the impact of discouraging women from bringing com-
to the unnamed victim, whose name later was mis- plaints of rape to prosecutors who, in turn, would be
takenly posted on an Eagle County court Web site. reluctant to file charges.
Press reports indicated that she was a former high In 2016, Bryant retired from the NBA having played
school cheerleader who reportedly had auditioned for on five championship teams and having earned an
the show American Idol and was described by some Olympic gold medal. Even his harshest critics rank him
acquaintances as desperate for attention and notori- as an all-time great player.
ety. Other sources told of two suicide attempts during As a prosecutor, would you have brought the Bry-
the past year and her hospitalization by the University ant case to trial? Do athletes receive preferential treat-
of Northern Colorado campus police, who feared that ment when accused of sexual abuse? On the other
she posed a “danger to herself.” The media inter- hand, are they more often than not the target of false
viewed every resident of the victim’s hometown who allegations?
KIDNAPPING
Kidnapping at common law was the forcible abduction or stealing away of a person from his or
her own country and sending him or her into another country. This misdemeanor was intended
to punish the taking of an individual to an isolated location where the victim was outside of the
protection of the law. Imagine the fear you would experience in the event that you were locked in
a basement under the complete control of an abusive individual.
Kidnapping became of concern in 1932 with the kidnapping of the twenty-month-old son of
Charles Lindbergh, the aviation hero who piloted the “Spirit of St. Louis” in the first flight across
the Atlantic. Lindbergh paid the $50,000 ransom demanded for the return of Charles Jr., who later
was found dead in the woods five miles from the Lindbergh home. A German immigrant, Bruno
Hauptmann, was prosecuted for felony murder, convicted, and executed. The question whether
Hauptmann was the perpetrator continues to be a topic of intense debate.
The Lindbergh kidnapping resulted in the adoption of the Federal Kidnapping Act, known as
the “Lindbergh Law.” This law prohibits the kidnapping and carrying of an individual across state
lines for the purpose of obtaining a ransom or reward. Six states shortly thereafter adopted new
statutes significantly increasing the penalty for kidnapping. This trend continued, and by 1952, all
but four states punished kidnapping with death or life imprisonment.
The Lindbergh Law excluded parents from coverage. In 1981, Congress addressed the 150,000
abductions of children by a parent involved in a custody dispute in the Parental Kidnapping
Prevention Act. The statute provides for FBI jurisdiction when a kidnapped child is transported
across state lines. The abduction of children by a parent or relative involved in a custody dispute
is also the subject of specific state statutes punishing a “relative of a child” who “takes or entices”
a child younger than eighteen from his or her “lawful custodian.”
The last decades have been marked by a string of high-profile kidnappings of wealthy corporate
executives and members of their families. In 1974, Patricia Hearst, heiress to the Hearst newspaper
fortune, was kidnapped from her campus apartment at the University of California at Berkeley.
The abduction was carried out by the Symbionese Liberation Army (SLA), a self-proclaimed revo-
lutionary group. The case took on a bizarre character when Hearst participated in bank robberies
intended to finance the activities of the group. Hearst was later apprehended and convicted at trial
despite her claim of “brainwashing.” The major figures in the SLA were subsequently killed in a
shoot-out with the Los Angeles police.
More recently, we have seen the 1993 abduction and killing of twelve-year-old Polly Klaas
and the kidnapping, in 2002, of twelve-year-old Elizabeth Smart. Elizabeth was later found to
have been forced into a “marriage” with her abductor, a handyman in the Smart home. In 2009,
Jaycee Lee Dugard was rescued eighteen years after having been abducted at age eleven. The latest
tragic incident involves the kidnapping and decade-long confinement of three young women by
a Cleveland bus driver.
Following American intervention into Iraq, foreigners were regularly kidnapped by criminal
gangs who “sold” the victims to political groups opposed to the presence of the United States.
The terrorists typically threatened to kill the hostage unless the company for which the prisoner
worked or his or her country of nationality agreed to withdraw from Iraq. In a related incident,
Wall Street Journal reporter Daniel Pearl was kidnapped and beheaded by an extremist group in
Pakistan. The terrorist group’s Britain-born leader, Ahmed Omar Saeed Sheikh, was later prose-
cuted and sentenced to death in Pakistan. The taking of hostages is recognized as a crime under
the International Convention Against the Taking of Hostages, which requires countries signing
the treaty either to prosecute offenders or to send them to a nation claiming the right to prosecute
the offender.
The U.S. Congress has also enacted the Victims of Trafficking and Violence Protection Act
of 2000 and the PROTECT Act of 2003 that together combat the international sexual trafficking
industry. Roughly one million children, most of whom are girls, have been persuaded to leave
or are forcibly abducted from their mostly rural villages in poor countries and forced into sexual
slavery or low-wage industrial labor.
Kidnapping Statutes
Kidnapping statutes vary widely in their requirements. California Penal Code Section 202 provides
that
[e]very person who forcibly, or by any other means of instilling fear, steals or takes, or holds,
detains, or arrests any person in this state, and carries the person into another country,
state, or county, or into another part of the same county, is guilty of kidnapping.
The mens rea of kidnapping, although subject to dispute, is commonly thought to be an intent
to move or to confine the victim without his or her consent. Wisconsin Statute Section 940.31
provides that kidnapping is the carrying of another from one place to another without his or her
consent and with the “intent to cause him or her to be secretly confined or imprisoned or to be car-
ried out of this state or to be held to service against his or her will.” Some statutes require holding
an individual for a specific purpose such as detaining a person for ransom or as a hostage. Florida
requires a specific intent, whether to hold an individual for ransom or reward, to serve as a shield
or hostage, to inflict bodily harm, to terrorize the victim, or to interfere with the performance of
any governmental or political function. Texas considers the intentional or knowing abduction of
another person with the intent to commit these acts as “aggravated kidnapping.”
Criminal Act
The essence of kidnapping is the actus reus of the forcible movement of a person as provided under
the North Carolina statute “from one place to another.” The central issue is the extent of the
movement required. The traditional rule in American law is that any movement, no matter how
limited, is sufficient. In the well-known California case of People v. Chessman, Caryl Chessman was
convicted of kidnapping when he forced a rape victim to move twenty-two feet into his car. The
California Supreme Court noted that it is “the fact, not the distance of forcible removal, which
constitutes kidnapping in this State.”98
Most courts abandoned this approach after realizing that almost any rape, battery, or rob-
bery involves some movement of a victim. This led to prosecutors charging defendants with the
primary crime as well as kidnapping and resulted in life imprisonment for crimes that otherwise
did not merit this harsh penalty. In 1969, the California Supreme Court rejected the Chessman
standard in People v. Daniels. The defendants entered the victims’ apartments and forced them at
knifepoint to move a few feet into another room where they were robbed and raped. The court
reversed the kidnapping convictions on the grounds that the victims’ movements were a central
step in the rape or robbery and should not be considered as constituting the independent offense
of kidnapping.99
Courts now generally limit the application of kidnapping statutes to “true kidnapping situa-
tions and [do] not . . . apply it to crimes which are essentially robbery, rape or assault . . . in which
some confinement or asportation occurs as a subsidiary incident.” The MPC requires that the indi-
vidual is moved a “substantial distance” from where he or she is “found.”
Kidnapping statutes are no longer thought to include unlawful confinements or movements inci-
dental to the commission of other felonies. Under this standard, courts require that for a movement to
be considered kidnapping, it “must be more than slight, inconsequential, or an incident inherent in
the crime.” Judges have ruled that for the movement to constitute kidnapping, it must meaningfully
contribute to the commission of the primary crime by preventing the victim from calling for help,
reducing the defendant’s risk of detection, facilitating escape, or increasing the danger to the victim.
In Faison v. State, the defendant moved a woman from her office to a bathroom in the rear
of the office to commit a rape. A Florida District Court affirmed the defendant’s conviction and
established a three-part test for kidnapping.100
[I]f a taking or confinement is alleged to have been done to facilitate the commission of
another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the
other crime substantially easier of commission or substantially lessens the risk of
detection.
In People v. Aguilar, the defendant followed Nancy C., age sixteen, as she walked down a resi-
dential street. He grabbed her and inserted his fingers in her vagina. She screamed, and he dragged
her 133 feet down the street to an area that was not illuminated by a street light and pushed her
onto the hood of a car and reinserted his fingers in her vagina. The California appellate court held
that Nancy’s movement was not merely incidental to the rape. Her movement facilitated the rape
and increased the danger to Nancy. Once having moved Nancy, the defendant threw her to the
ground, grabbed her neck, choked her, bit her, slammed her onto a car hood, and held her down
on the hood with a knife at her neck.101
The movement or detention of the victim must be unlawful, meaning without the victim’s
consent by force or threat of force. The Wisconsin statute requires that the movement of an indi-
vidual must be undertaken “without his or her consent” and by “force or threat of imminent
force.” This excludes movements undertaken as a result of a lawful arrest, court order, or consent.
An Arkansas court held that where the victim voluntarily accepted the defendant’s offer of a ride to
a friend’s house, the victim revoked her consent when the perpetrator prevented her from leaving
the automobile by displaying and threatening her with a firearm, ordering her to place her hands
under her thighs, and taking her to his home where she was raped.
Courts are divided over whether an individual is “forcibly” moved where the defendant fraud-
ulently misrepresents his or her intended destination. The California Supreme Court held that a
victim’s movement was “accomplished by force or any other means of instilling fear” where a rapist
falsely represented that he was a police officer and informed the eighteen-year-old victim that she
faced arrest unless she accompanied him to a store from which she was suspected of having stolen
merchandise. The court concluded that this “kind of compulsion is qualitatively different than if
defendant had offered to give Alesandria [the victim] a ride, or sought her assistance in locating a
lost puppy, or any other circumstance suggesting voluntariness on the part of the victim.”102
Some states follow the MPC in reducing the seriousness of the kidnapping where the victim
was “voluntarily released . . . in a safe place.” This provides an incentive for a defendant to limit
the harm inflicted on victims.
A related crime is child abduction, an offense that requires the state to prove that the
Read People v.
defendant “intentionally lure[d] or attempt[ed] to lure a child under the age of 16 into a motor
Aguilar on the vehicle . . . without the consent of the parent . . . of the child for other than a lawful purpose.”103
study site: study In People v. Hampton, the defendant was convicted for attempting to persuade a young woman,
.sagepub.com/ who told him that she was in eighth grade, into his car with the promise that “I will buy you
lippmaness2e. anything you want.”104
Model Penal Code

Section 212.1. Kidnapping
A person is guilty of kidnapping if he unlawfully removes another from his place of residence or
business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines
another for a substantial period in a place of isolation, with any of the following purposes:
(a) to hold for ransom or reward, or as a shield or hostage; or

(b) to facilitate commission of any felony or flight thereafter; or
(c) to inflict bodily injury on or to terrorize the victim or another; or
(d) to interfere with the performance of any governmental or political function.
Kidnapping is a felony of the first degree unless the actor voluntarily releases the victim alive
and in a safe place prior to the trial, in which case it is a felony of the second degree (ten years).
A removal or confinement is unlawful . . . if it is accomplished by force, threat, or deception, or, in
the case of a person who is under the age of 14 or incompetent, if it is accomplished without the
consent of a parent, guardian, or other person responsible for general supervision of his welfare.
Analysis
1. Kidnapping is defined to include any of three acts. First, removing victims from the protection
of the home or business is intended to punish the taking of individuals from the safety and
security of a home or business and placing them in danger. Second, removing individuals
“a substantial distance from the vicinity” where they are located is intended to ensure that
punishment is not imposed for “trivial changes of location.” Third, confining an individual for
a substantial period of time in an isolated location with a specified intent is intended to punish
the “frightening and dangerous” removal of a victim from a safe environment to an “isolated”
location where he or she is outside the protection of the law. No movement or asportation is
required in regard to confining an individual. The requirement that the detention is for a
“substantial period of time” in a “place of isolation” is intended to avoid punishing a defen-
dant for a detention that is merely incidental to a rape or other crime of violence.
2. Kidnapping is defined to require one of four specified purposes that commonly appear in
kidnapping statutes.
3. An unlawful removal must be accomplished through force, threat, or deception, or in the
case of an “incompetent” juvenile under the age of fourteen, without the consent of a
parent or guardian.
4. The reduction in punishment for kidnapping to a second-degree felony when the perpetra-
tor releases the victim “alive and in a safe place” provides an incentive for the kidnapper
to abandon the criminal enterprise. The defendant would remain liable for any battery or
sexual assault.
The Legal Equation

Kidnapping = Intent to detain and move or to detain and hide without consent
+ act of detention and moving or detention and hiding
+ through the unlawful use of force or threat of force.
FALSE IMPRISONMENT
Within the common law and in state statutes, false imprisonment is defined as the intentional
and unlawful confinement or restraint of another person. The Idaho statute simply states that false
imprisonment is the “unlawful violation of the personal liberty of another.” False imprisonment
is generally considered a misdemeanor, punishable in Idaho by a fine not exceeding $5,000, or by
imprisonment in the county jail for no more than one year, or both.105
As with kidnapping, false imprisonment is a crime that punishes interference with the free-
dom and liberty of the individual. False imprisonment requires an intent to restrain the victim.
Arkansas and other states follow the MPC and provide that false imprisonment may be commit-
ted by an individual who “without consent and without lawful authority . . . knowingly restrains
another person so as to interfere with his liberty.”106 The detention must be unlawful and without
the victim’s consent. A restraint by an officer acting in accordance with the law or by a parent
disciplining his or her child does not constitute false imprisonment. The consent of the victim
constitutes a defense to false imprisonment. A farmer who secured his wife with a chain while he
went to town was not held liable for false imprisonment where the evidence indicated that she
requested him to manacle her to the bed.107
The actus reus is typically described as compelling the victim to “remain where he did not
want to remain or go where he did not want to go.”108 The confinement may be accomplished
by physical restraint or by a threat of force of which the victim is aware. Confinement may also
be achieved without force or the threat of force when, for instance, the perpetrator locks a door.
Professors Perkins and Boyce point out that an individual is not confined because he is prevented
from moving in one or in several directions so long as he may proceed in another direction. An
individual may also be confined in a moving bus or in a hijacked airplane.109
False imprisonment may overlap with kidnapping or with assault and battery or robbery, and
several states have eliminated the crime. In these states, people who are unlawfully detained are
able to seek damages in civil court. The major difference between the crimes of kidnapping and false
imprisonment is that false imprisonment does not require an asportation (movement). In addition,
kidnapping statutes that punish the confinement as well as the movement of a victim often provide
that the victim must be “secretly confined” or “held in isolation” for a specific purpose (e.g., to
obtain a ransom). The MPC provides that the confinement for kidnapping must be for a “substan-
tial period.”110 False imprisonment, in contrast, requires a detention that may take place in public
or in the privacy of a home and may be for a brief or lengthy period. States such as Alabama provide
for the punishment of aggravated false imprisonment where an individual “restrains another per-
son under circumstances which expose the latter to a risk of serious physical injury.”111
The challenge often is to distinguish false imprisonment from kidnapping. In Cole v. State, a
Florida appellate court held that the robber ordering store employees to move into a closet to pre-
vent them from phoning the police was the type of act that normally accompanied the robbery of
a store and that this constituted false imprisonment rather than kidnapping.112
Model Penal Code

Section 212.3. False Imprisonment
A person commits a misdemeanor if he knowingly restrains another unlawfully so as to interfere
substantially with his liberty.
Section 212.2. Felonious Restraint

A person commits a felony of the third degree if he knowingly:
(1) restrains another unlawfully in circumstances exposing him to risk of serious bodily
injury; or
(2) holds another in a condition of involuntary servitude.
Analysis
1. The MPC requires a substantial interference with an individual’s liberty. This eliminates
prosecutions for relatively modest interference with an individual’s liberty.
2. An individual must knowingly restrain another person. As a result, it is sufficient that a
defendant is aware that his or her conduct will result in the detention of another
individual.
3. Felonious restraint is intended to punish as felonies restraints that create a risk of serious
bodily injury or involuntary servitude.
The Legal Equation

False imprisonment = Restraint by
+ force, threat of force, or constructive force.
You Decide 8.6 Joy Salem and Sarah Gibeson opened one Sunday afternoon. He displayed a gun and
were employed by the Jewelry ordered the women to give him the key to the jewelry
Mar t. Victor Maurice Hoard cases. Hoard demanded the keys to Gibeson’s car and
entered the store shortly after it directed the women into the office at the back, fifty feet
from where they were standing, tied their ankles and threatened the women, pulled the office phone out of
wrists with duct tape, and taped their mouths. He then the wall, and left the store. After some other customers
began taking jewelry from the cases. When customers helped release the women, Gibeson saw that her car
entered the store, Hoard told them it was closed for had been stolen by Hoard.
maintenance or performing inventory. Was Hoard guilty of kidnapping? People v. Hoard,
Gibeson tried to call 911 on her cell phone, but 103 Cal. App. 4th 599 (2002).
she dropped the phone. Hoard returned to the office,
CASE ANALYSIS
In State v. Jones, the Idaho Supreme Court decided whether Jones was guilty of raping A.S.
Was There Sufficient Evidence of A.S.’s Resistance to Hold Jones Guilty of

Forcible Rape?
State v. Jones, 299 P.3d 219 (Idaho 2013)
On May 27, Jones went to A.S.’s apartment to watch Afterwards, Jones and A.S. went to the bedroom
movies. He spent the night and remained there in and shared a cigarette. Jones helped A.S. into bed and
the morning after Carpenter left for work and A.S.’s once again started to have sexual intercourse with her.
children went to school. At the time, A.S. was taking She testified that:
an antihistamine for a bee sting and a prescription
anti-anxiety medication, both of which caused her [H]e got off me and pulled his clothes back
to feel drowsy. As a result of her drowsiness she laid on and put mine back on. And then he sat
down on the living room couch and started to “drift me back up and asked me if he could have sex
off.” Jones went into the living room, sat next to her, with me. And I just kept saying over and over
and started stroking her hair. A.S. testified that after he again, no, my kids are going to be home soon.
“grabbed a handful of hair and pulled” hard enough to Eventually, Jones left the apartment.
hurt her, she was nonresponsive in hopes that “if [she]
just laid there and didn’t move he would leave [her] A.S. drove to Carpenter’s brother’s house and told
alone.” She further stated that: the brother’s girlfriend that she had been raped. They
took A.S. to the hospital where she told the staff that
After he was done pulling my hair, he left she had been sexually assaulted, but that she did not
me alone for a little bit. And then he grabbed want to press charges. But law enforcement was con-
my chest and squeezed my breast really hard. tacted, and A.S. provided a statement to police while
. . . He apparently didn’t get the reaction he at the hospital.
wanted, and he moved down to my vaginal On May 29, A.S. met with a detective, who
area. . . . He started touching me outside, and arranged for A.S. to make a recorded call to Jones. A.S.
then he started putting his fingers inside me confronted Jones regarding the incidents, and Jones
really hard. Jones then proceeded to pull down is heard on tape apologizing. . . . Additionally, A.S. is
A.S.’s pants and underwear, and “pushed [her] clearly heard saying, “You think this is okay to do to
legs apart and started having sex with [her].” people who are unconscious?” . . . Toward the end of
In response, A.S. “just froze,” and testified the tape, A.S. asks Jones to describe what he did to
that she was “paralyzed” with fear. her—he states that: “I think that I pushed things too
(Continued)
(Continued)
far and I guess it’s rape. I did it. You obviously didn’t admission, A.S. “didn’t respond” physically, or even
want any part of it.” verbally, to Jones’ advances—she “just froze.” Idaho’s
The Idaho Code defines forcible rape as follows: forcible rape statute expressly requires resistance.
Satisfying this element with inactivity strains the defi-
Rape is defined as the penetration, however nition of resistance, essentially nullifying the resis-
slight, of the oral, anal or vaginal opening tance requirement. Though studies have shown that
with the perpetrator’s penis accomplished “freezing up” is indeed a legitimate, understandable
with a female under any one (1) of the fol- reaction of victims of sexual assault, this Court has
lowing circumstances: no authority to jettison the resistance requirement—
modifying this State’s statutes is the Legislature’s
... province alone. As the statute is plainly written, some
quantum of resistance is required, and A.S. did not
(3) Where she resists but her resistance is over- resist Jones’ advances on May 28. There was insuffi-
come by force or violence. I.C. § 18-6101(3). cient evidence on the element of resistance to support
The statute only requires “resistance.” It does not the conviction of forcible rape I so we need not con-
differentiate between physical or verbal resistance. . . . sider the issue of force. The conviction . . . is accord-
Whether the evidence establishes the element of resis- ingly reversed.
tance is a fact-sensitive determination based on the [We recognize] that many women demon-
totality of the circumstances, including the victim’s strate “psychological infantilism”—a frozen fright
words and conduct. Based on the plain language of response—in the face of sexual assault. . . . The “frozen
I.C. § 18–6101(3), we hold that the extrinsic force stan- fright” response resembles cooperative behavior. . . .
dard applies in Idaho. Section 18–6101(3) defines forc- Indeed, . . . the “victim may smile, even initiate acts,
ible rape as “penetration, however slight,” “[w]here [a and may appear relaxed and calm.” . . . Subjectively,
woman] resists but her resistance is overcome by force however, she may be in a state of terror. [Also] the vic-
or violence.” Were we to construe “force” as encom- tim may make submissive signs to her assailant and
passing the act of penetration itself, it would effectively engage in propitiating behavior in an effort to inhibit
render the force element moot. . . . [W]e conclude that further aggression. . . . These findings belie the tradi-
some force beyond that which is inherent in the sexual tional notion that a woman who does not resist has
act is required for a charge of forcible rape. consented. They suggest that lack of physical resis-
We hold that there is insufficient evidence to tance may reflect a “profound primal terror” rather
support a charge of forcible rape. . . . By her own than consent.
CHAPTER SUMMARY
There are four categories of offenses discussed in this laws that prohibit stalking when carried out through
chapter: assault and battery, stalking, sexual assault, electronic communication or a combination of
and kidnapping and false imprisonment. electronic communication and verbal expression
Assault and battery, although often referred to as and acts.
a single crime, are separate offenses. A battery is the Rape at common law was punishable by death,
application of force to another person. An assault may and only homicide was historically considered a more
be committed by attempting to commit a battery or severe crime. Common law rape required the inten-
by intentionally placing another in imminent fear of a tional vaginal intercourse by a man of a woman who
battery. Aggravated assaults and batteries are felonies. was not his wife by force or threat of serious bodily
Stalking entails a series of acts that intentionally injury against her will. The fear of false conviction led
or knowingly are undertaken to intimidate, frighten, to the imposition of various barriers that the victim
or terrorize another individual. This may involve was required to overcome. These included immediate
surveillance, repeated unwanted contact, lying in complaint, corroboration, the admissibility of evi-
wait, threatening, vandalizing, or a combination of dence pertaining to a victim’s past sexual activity, and
these acts. States also have adopted cyberstalking a cautionary judicial instruction. The focus was on the
victim, who was expected to demonstrate her lack of and examines whether a defendant “knows” whether
consent by the utmost resistance. the victim consented. The third approach is the impo-
The law of rape was substantially modified by sition of strict liability that holds defendants guilty
the legal reforms of the 1970s and 1980s that treated whatever their personal belief or the objective reason-
rape as an assault against the person rather than as an ableness of their belief.
offense against sexual morality. Sexual intercourse was Recent legal and statutory developments recog-
expanded to include the forced intrusion into any part nize that individuals may withdraw their consent. The
of another person’s body, including the insertion of continuation of sexual relations under such circum-
an object into the genital or anal opening. Rape was stances constitutes rape.
defined in gender-neutral terms; the marital exemption Statutory rape is a strict liability offense that holds
was abolished; and rape was divided into simple and a defendant guilty of rape based on his intercourse
aggravated rape based on the type of the penetration, with an “underage” female. Several states permit the
use of force, or resulting physical injury. Various stat- defense of a reasonable mistake of age. Rape shield
utes no longer employ the term rape and punish vagi- laws prohibit the prosecution from asking the victim
nal intercourse as one of several forms of sexual assault. about or introducing evidence concerning sexual rela-
The intent of rape reform is to shift attention from tions with individuals other than the accused or intro-
resistance by the victim to the force exerted by the per- ducing evidence relevant to the victim’s reputation for
petrator. There are two approaches to analyzing force. chastity.
The extrinsic force standard requires an act of force Kidnapping is the unlawful and forcible seizure
beyond the physical effort required to achieve sexual and asportation (carrying away) of another without
penetration. The intrinsic force standard requires only his or her consent. This requires the specific intent
that amount of force required to achieve penetration. to move the victim without his or her consent. The
Sexual assault may also be accomplished by threat of actus reus is the moving or detention of the victim.
force, through penetration obtained by fraud, or when Courts differ on the extent of this movement, vari-
the victim is incapable of consent stemming from ously requiring slight or, under the Model Penal Code
unconsciousness, sleep, or insanity. standard, substantial movement. The majority rule
The mens rea of rape at common law was the intent is that the movement must not be incidental to the
to engage in vaginal intercourse with a woman who the commission of another felony and must contribute
defendant knew was not his wife through force or the to the primary crime by preventing the victim from
threat of force against her will. There was no clear guid- calling for help, reducing the defendant’s risk of detec-
ance as to whether a defendant was required to know tion, facilitating escape, or increasing the danger to
that the intercourse was without the female’s consent. the accused.
A majority of states now accept an objective test that False imprisonment is the intentional and unlaw-
recognizes the defense that a defendant honestly and ful confinement or restraint of another person. The
reasonably believed that the victim consented. This restraint may be achieved by force, by threat of force,
requires equivocal conduct by the victim that is capa- or by other means and does not require the victim’s
ble of being reasonably, but mistakenly, interpreted by asportation or secret confinement. False imprison-
the assailant as indicating consent. The English House ment is a misdemeanor other than when committed
of Lords rule, in contrast, adopts a subjective approach in an aggravated fashion.
1. Distinguish an assault from a battery. 6. Why does “date rape” present a challenge to
prosecutors?
2. What are the requirements of a battery? Describe
the difference between a simple battery and an 7. How did the common law define rape? List some
aggravated battery. of the barriers to establishing rape under the com-
3. Discuss the two ways to commit an assault. mon law.
4. What is the relationship between the crime of 8. Describe the changes in the law of rape introduced
stalking and a criminal assault? by the reform statutes of the 1970s and 1980s.
5. What was the original justification for the crime 9. What elements distinguish a simple or second-
of rape? degree rape from aggravated or first-degree rape?
10. Distinguish the standard of extrinsic force from 14. May an individual who withdraws consent claim
the intrinsic force standard in the law of rape. to be the victim of rape?
11. In addition to force, what other means might 15. What is the purpose of rape shield laws? Are there
a perpetrator employ to satisfy the actus reus exceptions to rape shield laws?
requirement in the law of rape?
16. What is the definition of kidnapping? What
12. What are the three approaches to the defense of are the various approaches to the asportation
mistake of fact in the mens rea of rape? requirement?
13. Is a defendant’s belief that another individual 17. Distinguish between false imprisonment and
is above the age of lawful consent a defense to kidnapping.
statutory rape? What of the female’s past sexual
experience?
LEGAL TERMINOLOGY
acquaintance rape domestic violence rape shield laws

aggravated assault earnest resistance rape trauma syndrome
aggravated battery extrinsic force reasonable resistance
aggravated rape false imprisonment resist to the utmost
aggravated sexual assault fraud in inducement Romeo and Juliet laws
assault and battery fraud in the factum sexual assault
child abduction intrinsic force sexual battery
corroboration kidnapping stalking
cyberstalking mayhem statutory rape
dangerous weapon battery prompt complaint torture
domestic battery prosecutrix withdrawal of consent

9 CRIMES AGAINST PROPERT Y
Is Alvarez guilty of false pretenses as a Learning Objectives

result of his false claim of having
received the Congressional Medal of 1. Know the elements of larceny.
Honor? 2. Understand embezzlement and the difference
between larceny and embezzlement.
Xavier Alvarez won a seat on the Three Valley Water Dis-
trict Board of Directors in 2007. On July 23, 2007, at 3. State the elements of false pretenses and the
a joint meeting with a neighboring water district board, distinction between false pretenses and lar-
newly seated Director Alvarez arose and introduced him- ceny by trick.
self, stating “I’m a retired marine of 25 years. I retired 4. Explain the purpose of theft statutes.
in the year 2001. Back in 1987, I was awarded the Con-
gressional Medal of Honor. I got wounded many times by 5. List the elements of receiving stolen property
the same guy. I’m still around.” Alvarez has never been and the purpose of making it a crime to receive
awarded the Congressional Medal of Honor, nor has he stolen property.
spent a single day as a marine or in the service of any
6. Define forgery and uttering.
other branch of the United States armed forces. . . . The
summer before his election to the water district board, 7. Know the elements of robbery and the differ-
a woman informed the FBI about Alvarez’s propensity for ence between robbery and larceny.
making false claims about his military past. Alvarez told
her that he won the Medal of Honor for rescuing the Amer- 8. State the elements of carjacking and the differ-
ican ambassador during the Iranian hostage crisis, and ence between carjacking and robbery.
that he had been shot in the back as he returned to the 9. Understand the difference between robbery
embassy to save the American flag. Alvarez reportedly and extortion.
told another woman that he was a Vietnam veteran heli-
copter pilot who had been shot down but then, with the 10. Know the common law of burglary and the
help of his buddies, was able to get the chopper back changes to the law of burglary introduced by
into the sky. . . . After the FBI obtained a recording of the burglary statutes.
water district board meeting, Alvarez was indicted in the
11. Understand the law of trespass and the differ-
Central District of California on two counts of violating 18
U.S.C. § 704(b), (c)(1). Specifically, he was charged with ence between burglary and trespass.
“falsely represent[ing] verbally that he had been awarded 12. Know the mens rea and actus reus of arson.
the Congressional Medal of Honor when, in truth and as
[he] knew, he had not received the Congressional Medal 13. State the law of criminal mischief and the three
of Honor.” (United States v. Alvarez, 567 U.S. ___ [2012]) categories of acts that constitute criminal mis-
chief under the Model Penal Code.
In this chapter, learn about false pretenses.
207
INTRODUCTION
Seventeenth-century English philosopher John Locke asserted in his influential Second Treatise of
Government that the protection of private property is the primary obligation of government. Locke
argued that people originally existed in a “state of nature” in which they were subject to the sur-
vival of the fittest. These isolated individuals, according to Locke, came together and agreed to
create and to maintain loyalty to a government that, in return, pledged to protect individuals and
to safeguard their private property. Locke, as noted, viewed the protection of private property as
the most important duty of government and as the bedrock of democracy.
Locke’s views are reflected in the Fifth Amendment to the U.S. Constitution, which prohibits
the taking of property without due process of law. Even today, those individuals who may not
completely agree with Locke recognize that the ownership of private property is a right that pro-
vides us with a source of personal enjoyment, pride, profit, and motivation and serves as a measure
of self-worth.
A complex of crimes was developed by common law judges and legislators to protect and pun-
ish the wrongful taking of private property. As we shall see, each of these crimes was created at a
different point in time to fill a gap in the existing law. The development of these various offenses
was necessary because prosecutors ran the risk that a defendant would be acquitted in the event
that the proof at trial did not meet the technical requirements of a criminal charge. Today, roughly
thirty states have simplified the law by consolidating these various property crimes into a single
theft statute.
In this chapter, we will review the main property crimes. These include the following:
•• Larceny. A pickpocket takes the wallet from your purse and walks away.
•• Embezzlement. A bank official steals money from your account.
•• False Pretenses. You sell a car to a friend who lies and falsely promises that he or she will pay
you in the morning.
•• Receiving Stolen Property. You buy a car knowing that it is stolen.
•• Forgery and Uttering. A friend takes one of your checks, makes it payable to himself or herself,
signs your name, and cashes the check at your bank.
•• Robbery. You are told to hand over your wallet by an assailant who points a loaded gun at you.
•• Extortion. You are told to pay protection to a gang leader who states that otherwise you will
suffer retaliatory attacks in the coming months.
We also will look at the newly developing area of carjacking. In thinking about the property crimes
discussed in this chapter, consider that they all involve the seizure of the property of another indi-
vidual through a wrongful taking, fraud, or force.
The last part of the chapter discusses four crimes that threaten the security of an individual’s
home. The notion that the home is an individual’s castle is deeply ingrained in the American
character. The home is a safe and secure shelter where we are free to express our personalities and
interests without fear of uninvited intrusions.
•• Burglary. An individual breaks into your home with the intent to commit a felony.
•• Trespass. Members of a street gang gather in your front yard to sell narcotics.
•• Arson. An angry neighbor sets your house on fire.
•• Malicious Mischief. A neighbor angry over your parking in his or her space defaces your home.
LARCENY
Early English law punished the taking of property by force, a crime that evolved into the offense
of robbery. It became apparent that additional protections for property were required to meet the
needs of the expanding British economy. Goods now were being produced, transported, bought,
and sold. Robbery did not cover acts such as the taking of property under the cover of darkness
from a loading dock. Robbery also did not punish employees who stole cash from their employers
or a commercial shipper who removed goods from a container that was being transported to
the market. Accordingly, the law of larceny was gradually developed to prohibit and punish the
CHAPTER 9 Crimes Against Property 209
nonviolent taking of the property of another without his or her consent. The goods that are stolen
were not required to be in the immediate presence of the individual.
Common law larceny is the trespassory taking and carrying away of the personal property of
another with the intent to permanently deprive that individual of possession of the property. You
should be certain that you understand each element of larceny:
•• Trespassory
•• taking and
•• carrying away of the
•• personal property of another with the
•• intent to permanently deprive that individual of
•• possession of the property.
Actus Reus: Trespassory Taking

The “trespassory taking” in larceny is different from the trespass against land. The term trespas-
sory taking in larceny is derived from an ancient Latin legal term and refers to a wrongdoer who
removes goods (chattel) or money from the possession of another without consent. Possession
means physical control over property with the ability to freely use and enjoy the property. Consent
obtained from a person in possession of property by force, fraud, or threat is not valid. An indi-
vidual with title or ownership of property typically also has possession of property. The common
law, as we shall soon see, established various rules to distinguish possession from custody, or the
temporary and limited right to control property.1
As we observed earlier, the law of larceny developed in response to evolving economic condi-
tions in Great Britain. In the fifteenth century, England changed from an agricultural country into
a manufacturing center. Industry depended on carriers to transport goods to markets and stores.
These carriers commonly would open and remove goods from shipping containers and sell them
for personal profit. An English tribunal ruled in the Carrier’s Case, in 1473, that the carrier was a
bailee (an individual trusted with property and charged with a duty of care) who had possession
of the container and custody over the contents. The carrier was ruled to be liable for larceny by
“break[ing] bulk” and committing a trespassory taking of the contents. How did the judge reach
this conclusion? The judge in the Carrier’s Case reasoned that possession of the goods inside the
crate continued to belong to the owner and that the shipper was liable for a trespassory taking
when he broke open the container and removed the contents. Of course, the carrier might avoid a
charge of larceny by stealing an unopened container.2
The law of larceny was also extended to employees. An employee is considered to have cus-
tody rather than possession over materials provided by an employer, such as construction tools
or a delivery truck. The employer is said to enjoy constructive possession over this property or the
authority and intent to control the property. An employee who walks away with the tools or truck
with the intent to deprive the owner of possession of the tools or truck is guilty of larceny. A col-
lege student who drives a pizza delivery truck for a local business has custody over the truck. In the
event that the student steals the truck, he or she has violated the owner’s possessory right and has
engaged in a “trespassory taking.”3
Larceny is not limited to business and commerce. Professors Rollin Perkins and Ronald Boyce
note that when eating in a restaurant, you have custody over the silverware, and removing it from
the possession of the restaurant by walking out the door with a knife in your pocket constitutes lar-
ceny. Another illustration is a pickpocket who, by removing a wallet from your pocket, has taken
the wallet from your possession.4 Professor Joshua Dressler offers the example of an individual who
test drives an automobile at a dealership, returns to the lot, and drives off with the car when the
auto dealer climbs out of the vehicle. The test driver would be guilty of larceny for dispossessing
the car dealer of the auto.5
Asportation
There must be a taking (caption) and movement (asportation) of the property. The movement of
the object provides proof that an individual has asserted control and intends to steal the object.
You might notice that an individual waiting in line in front of you has dropped his or her wallet.
Your intent to steal the wallet is apparent when you place the wallet in your pocket or seize the
wallet and walk away at a brisk pace in the opposite direction.
A taking requires asserting “dominion and control” over the property, however briefly. The
property then must be moved, and even “a hair’s breath” is sufficient.6 A pickpocket who manages
to move a wallet only a few inches inside the victim’s pocket may be convicted of larceny.7
Larceny may be accomplished through an innocent party. A defendant was convicted of lar-
ceny by falsely reporting to a neighbor that the defendant owned the cattle that wandered onto
the neighbor’s property. The neighbor followed the defendant’s instructions to sell the cattle and
then turned the proceeds over to the defendant. The defendant was held responsible for the neigh-
bor’s caption (taking) and asportation (carrying away), and the defendant was convicted of lar-
ceny.8 A defendant was also found guilty of larceny for unlawfully selling a neighbor’s bicycle to
an innocent purchaser who rode off with the bike.9
Various modern state statutes have followed the Model Penal Code (MPC) in abandoning the
requirement of asportation and provide that a person is guilty of theft if he or she “unlawfully
takes, or exercises unlawful control,” over property. The Texas statute provides that an individual
is guilty of larceny where there is an “appropriation of property” without the owner’s consent.
Under these types of statutes, a pickpocket who reaches into an individual’s purse and seizes a
wallet would be guilty of larceny; there is no requirement that the pickpocket move or carry away
the wallet.10
Property of Another
At common law, only tangible personal property was the subject of larceny. Tangible property
includes items over which an individual is able to exercise physical control, such as jewelry, paint-
ings, tools, crops and trees removed from the land, and certain domesticated animals. Property not
subject to larceny at common law included services (e.g., painting a house), real property (e.g., real
estate, crops attached to the land), and intangible property (e.g., property that represents something
of value such as checks, money orders, credit card numbers, car titles, and deeds demonstrat-
ing ownership of property). Crops were subject to larceny only when severed from the land. For
instance, an apple hanging on a tree that was removed by a trespasser was part of the land and was
not subject to larceny. An apple that fell from the tree and hit the ground, however, was consid-
ered to have entered into the possession of the landowner and was subject to larceny. In another
example, wild animals that were killed or tamed were transformed into property subject to larceny.
Domestic animals, such as horses and cattle, were subject to larceny, but dogs were considered to
possess a “base nature” and were not subject to larceny. These categories are generally no longer
significant, and all varieties of property are subject to larceny under modern statutes.
The property must be “of another.” Larceny is a crime against possession and is concerned
with the taking of property from an individual who has a superior right to possess the object. A
landlord who removes the furniture from a furnished apartment that he or she rents to a tenant
is guilty of larceny.
Modern statutes, as noted, have expanded larceny to cover every conceivable variety of property.
For example, the California statute protects personal property, animals, real estate, cars, money,
checks, money orders, traveler’s checks, phone service, tickets, and computer data.11 A number of
states follow Section 223.7 of the MPC and have specific statutes punishing the “Theft of Services.”
These statutes punish the theft of services in restaurants, hotels, transportation, and professional
services as well as the theft of telephone, electric, and cable services.
Mens Rea
The mens rea of larceny is the intent to permanently deprive another of the property. There must
be a concurrence between the intent and the act. The intent to borrow your neighbor’s car is not
larceny. It is also not larceny if, after borrowing your neighbor’s car, you find that it is so much fun
to drive that you decide to steal the auto. In this example, the criminal intent and the criminal act
do not coincide with one another. Several states have so-called joyriding statutes that make it a
crime to take an automobile with an intent to use it and then return it to the owner.
Professor Wayne LaFave points out that in addition to a specific intent to steal, there are cases
holding that larceny is committed when an individual has an intent to deprive an individual
of possession for an unreasonable length of time or has an intent to act in a fashion that will
probably dispossess a person of the property. For instance, you may drive your neighbor’s car from
New York to Alaska with the intent of going on a vacation. The trip takes two months and deprives
your neighbor of possession for an unreasonable period, which constitutes larceny. After arriving
in Alaska, you park and leave the car in a remote area. You did not intend to steal the car, but it is
unlikely that the car will be returned to the owner, and you could also be held liable for larceny
based on your having acted in a fashion that will likely dispossess the owner of the car.12
Lost property or property that is misplaced by the owner is subject to larceny when a defen-
dant harbors the intent to steal at the moment that he or she seizes the property. The defendant
is held guilty of larceny, however, only when he or she knows who the owner is or knows that the
owner can be located through reasonable efforts. Property is lost when its owner is involuntarily
deprived of an object and has no idea where to find or recover it; property is misplaced when the
owner forgets where he or she intentionally placed an object. Property that is abandoned has no
owner and is not subject to larceny, because it is not the “property of another individual.” Property
is abandoned when its owner no longer claims ownership. Property delivered to the wrong address
is subject to larceny when the recipient realizes the mistake at the moment of delivery and forms
an intent to steal the property.
An individual may also claim property “as a matter of right” without committing larceny. This
occurs when an individual seizes property that he or she reasonably believes has been taken from
his or her possession or seizes money of equal value to the money owed to him or her. In these
cases, the defendant believes that he or she has a legal right to the property and does not possess
the intent to “take the property of another.”
You can see that intent is central to larceny. What if you go to the store to buy some groceries
and discover that you left your wallet in the car? You decide to walk out of the store with the gro-
ceries and intend to get your wallet and return to the store and pay for the groceries. Is this larceny?
Grades of Larceny
The common law distinguished between grand larceny and petit larceny. Grand larceny was
the stealing of goods worth more than twelvepence, the price of a single sheep. The death penalty
applied only to grand larceny.
State statutes continue to differentiate between grand larceny and petit larceny. The theft of
property worth more than a specific dollar amount is the felony of grand larceny and is punishable
by a year or more in prison. Property worth less than this designated amount is a misdemeanor and
is punished by less than a year in prison. States differ on the dollar amount separating petit and
grand larceny. South Carolina punishes the theft of an article valued at less than $2,000 as a mis-
demeanor. Stealing an object worth more than $2,000 but less than $10,000 is subject to five years
in prison.13 Theft of an article valued at $10,000 or more is punishable by ten years in prison. Texas
uses the figure of $1,500 to distinguish a theft punishable as a misdemeanor from a theft punish-
able as a felony. Harsher punishment is imposed as the value of the stolen property increases.14
How is property valued? In the case of the theft of money or of a check made out for a specific
amount, this is easily calculated. What about the theft of an automobile? Should this be measured
by what the thief believes is the value of the property? The Pennsylvania statute is typical and
provides that “value means the market value of the property at the time and place of the crime.”
Courts often describe this as the price at which the minds of a willing buyer and a willing seller
would meet.
The application of this test means that judges will hear evidence concerning how much it
would cost to purchase a replacement for a stolen car. What about a basketball jersey worn and
autographed by megastar Michael Jordan? You cannot go to the store and purchase this item. The
Pennsylvania statute states that if the market value “cannot be satisfactorily ascertained, [the value
of the property is] the cost of replacement of the property within a reasonable time after the crime.”
In other words, the court will hear evidence concerning the value of a Michael Jordan autographed
jersey in the same condition as the jersey that was stolen. One difficulty is that courts consider
the absolute dollar value of items and do not evaluate the long-term investment or sentimental
value of the property. The Pennsylvania statute also provides that when multiple items are stolen
as part of a single plan or through repeated acts of theft, the value of the items may be aggregated
or combined. This means that the money taken in a series of street robberies will be combined and
that the perpetrator will be prosecuted for a felony rather than a series of misdemeanors.15
The value of property is not the only basis for distinguishing between grand and petit lar-
ceny. California uses the figure of $950 to distinguish between grand and petit larceny but also
categorizes as grand larceny the theft of “domestic fowls, avocados, olives, citrus or deciduous
fruits . . . vegetables, nuts, artichokes, or other farm crops” of a value of more than $250. California
also considers grand larceny to include the theft of “fish, shellfish, mollusks, crustaceans, kelp,
algae . . . taken from a commercial or research operation.”16
Theft of a firearm, theft of an item from the “person of another,” and theft from a home all
pose a danger to other individuals and are typically treated as grand larceny. The penalty for steal-
ing property may be increased where the stolen items belong to an “elderly individual” or to the
government.
An interesting application of the law of larceny is shoplifting from self-service stores in which
customers examine merchandise and try on clothes in dressing rooms, and carry merchandise
around the store. In People v. Gasparik, the New York Court of Appeals held that stores consent
to customers’ possession of goods for a “limited purpose.” The court held that a customer is not
required to leave the store to be held liable for shoplifting and that there is probable cause to arrest
an individual who acts in a fashion that is “inconsistent with the store’s continued rights” in the
merchandise.17
In many cases, it will be particularly relevant that the defendant concealed the goods under
clothing or in a container. Such conduct is not generally expected in a self-service store and may,
in a proper case, be deemed an exercise of dominion and control inconsistent with the store’s
continued rights. Other furtive or unusual behavior on the part of the defendant should also be
weighed. Thus, if the defendant surveys the area while secreting the merchandise or abandons his
or her own property in exchange for the concealed goods, this may evince larcenous rather than
innocent behavior. Relevant too is the customer’s proximity to or movement toward one of the
Read People v.
Gasparik on the
store’s exits. Certainly, it is highly probative of guilt that the customer was in possession of secreted
study site: study goods just a few short steps from the door or moving in that direction. Finally, possession of a
.sagepub.com/ known shoplifting device actually used to conceal merchandise, such as a specially designed outer
lippmaness2e. garment or a false-bottomed carrying case, would be all but decisive.
The Legal Equation

Larceny = Unlawful taking and carrying away
+ intent to permanently deprive another of property.
You Decide 9.1 Carter entered a paint store stated that the paint had been purchased from the
and placed four 5-gallon buckets store and requested a refund for the paint. A store man-
of paint, valued at $398.92, in a ager recognized Browning as someone she had been
shopping cart. Browning waited for told to look for and contacted an employee of the store
Carter by the “return desk” where who summoned the police. Was Carter guilty of larceny?
customers take items they previously purchased and See Carter v. Commonwealth, 694 S.E.2d 590
wish to return for a refund. As planned, Browning falsely (Va. 2010).
EMBEZZLEMENT
We have seen that larceny requires a taking of property from the possession of another person with
the intent to permanently deprive the person of the property. In the English case of Rex v. Bazeley,
in 1799, a bank teller dutifully recorded a customer’s deposit and then placed the money in his
pocket. The court ruled that the teller had taken possession of the note and that he therefore could
not be held convicted of larceny and ordered his release from custody. The English Parliament
responded by almost immediately passing a law that held servants, clerks, and employees crimi-
nally liable for the fraudulent misdemeanor of embezzlement of property. Today, embezzlement is
a misdemeanor or felony depending on the value of the property.18
The law of embezzlement has slowly evolved, and although there is no uniform definition
of embezzlement, the core of the crime is the fraudulent conversion of the property of another
by an individual in lawful possession of the property. The following elements are central to the
definition of the crime:
Fraudulent (deceitful) conversion (serious interference with the owner’s rights) of the property
(statutes generally follow the law of larceny in specifying the property subject to embez-
zlement) of another (you cannot embezzle your own property) by an individual in lawful
possession of the property (the essence of embezzlement is wrongful conversion by an indi-
vidual in possession).
The distinction between larceny and embezzlement rests on the fact that in embezzlement, the
perpetrator lawfully takes possession and then fraudulently converts the property. In contrast, lar-
ceny involves the unlawful trespassory taking of property from the possession of another. Larceny
requires an intent to deprive an individual of possession at the time that the perpetrator “takes”
the property. The intent to fraudulently convert property for purposes of embezzlement, however,
may arise at any time after the perpetrator takes possession of the property.
Typically, embezzlement is committed by an individual to whom you entrust your property.
Examples would be a bank clerk who steals money from the cash drawer, a computer repair tech-
nician who sells the machine that you left to be repaired, or a construction contractor who takes a
deposit and then fails to pave your driveway or repair your roof. Embezzlement statutes are often
expressed in terms of “property which may be the subject of larceny.” In some states, embezzle-
ment is defined to explicitly cover personal as well as real property (e.g., land).
Keep in mind that if an individual who is not entrusted with property steals the property,
then it is not embezzlement. In Batin v. State, Marlon Javar Batin’s conviction for embezzlement of
money from the “bill validator” of a slot machine was overturned by the Nevada Supreme Court.
Batin worked as a slot mechanic at a casino, and his responsibilities included refilling the “hop-
per,” the part of the machine that “pays coin back,” which is separate from the “bill validator”
of the slot machine where the paper currency is kept. Batin had no duties or authorized access
in regard to the paper currency in the “bill validator,” and he was prohibited from handling the
Read Thomas
money in the “bill validator.” The Nevada Supreme Court concluded that Batin was not entrusted v. State on the
with actual or constructive “lawful possession” of the money he stole, and as a result, his convic- study site: study
tion for embezzlement was overturned. What would have been the result had Batin been charged .sagepub.com/
with larceny?19 lippmaness2e.
Model Penal Code

Section 223.2. Theft by Unlawful Taking or Disposition
Movable Property. A person is guilty of theft if he unlawfully takes or exercises unlawful control
over movable property of another with purpose to deprive him thereof.
Immovable Property. A person is guilty of theft if he unlawfully transfers immovable property of
another or any interest therein with purpose to benefit himself or another not entitled thereto.
Analysis
•• The MPC consolidates larceny and embezzlement.
•• The phrase “unlawfully takes” is directed at larceny, while the exercise of “unlawful control”
over the property of another is directed at embezzlement. In both instances, the defendant
must be shown to possess an intent to “deprive” another of the property. This includes an
intent to permanently deprive the other individual of the property as well as treating prop-
erty in a manner that deprives another of its use and enjoyment.
•• Property is broadly defined to include “anything of value,” including personal property,

land, services, and real estate.
•• Asportation is not required for larceny.
•• Combining larceny and embezzlement means that the prosecution is able to avoid the con-
fusing issues of custody and possession. The “critical inquiry” is “whether the actor had
control of the property, no matter how he got it, and whether the actor’s acquisition or use
of the property was authorized.”
The Legal Equation

Embezzlement = Conversion of property of another
+ intent to permanently deprive another of property.
FALSE PRETENSES
Larceny punishes individuals who “take and carry away” property from the possession of another
with the intent to permanently deprive the individual of the property. Obtaining possession
through misrepresentation or deceit is termed larceny by trick. In both larceny and larceny by
trick, the wrongdoer unlawfully seizes and takes your property.
Embezzlement punishes individuals who fraudulently “convert” to their own use the property
of another that the embezzler has in his or her lawful possession. In other words, you trusted the
wrong person with the possession of your property.
Common law judges confronted a crisis when they realized that there was no criminal remedy
against individuals who tricked another into transferring title or ownership of personal property
or land. Consider the case of an individual who trades a fake diamond ring that he or she falsely
represents to be extremely valuable in return for a title to farmland.
The English Parliament responded, in 1757, by adopting a statute punishing an individual who
“knowingly and designedly” by false pretense shall “obtain from any person or persons money,
goods, wares or merchandise with intent to cheat or defraud any person or persons of the same.”
American states followed the English example and adopted similar statutes.
State statutes slightly differ from one another in their definitions of false pretenses. The essence
of the offense is that a defendant is guilty of false pretenses who
•• obtains title and possession of property of another by

•• a knowingly false representation of
•• a present or past material fact with
•• an intent to defraud that
•• causes an individual to pass title to his or her property.
Actus Reus
The actus reus of false pretenses is a false representation of a fact. The expression of an opinion or
an exaggeration (“puffing”), such as the statement that “this is a fantastic buy,” does not consti-
tute false pretenses. The most important point to remember is that the false representation must
be of a past (this was George Washington’s house) or present (this is a diamond ring) fact. A future
promise does not constitute false pretenses (“I will pay you the remaining money in a year”).
Why? The explanation is that it is difficult to determine whether an individual has made a false
promise, whether an individual later decided not to fulfill a promise, or whether outside events
prevented the performance of the promise. Prosecuting individuals for failing to fulfill a future
promise would open the door to individuals being prosecuted for failing to pay back money they
borrowed or might result in business executives being held criminally liable for failing to fulfill the
terms of a contract to deliver consumer goods to a store. The misrepresentation must be material
(central to the transaction; the brand of the tires on a car is not essential to a sale of a car) and must
cause an individual to transfer title. It would not be false pretenses where a buyer knows that the
seller’s claim that a home has a new roof is untrue or where the condition of the roof is irrelevant
to the buyer.
Silence does not constitute false pretenses. A failure to disclose that a watch that appears to be a
rare antique is in reality a piece of costume jewelry is not false pretenses. The seller, however, must
disclose this fact in response to a buyer’s inquiry as to whether the jewelry is an authentic antique.
Mens Rea
The mens rea of false pretenses requires that the false representation of an existing or past fact be
made “knowingly and designedly” with the “intent to defraud.” This means that an individual
knows that a statement is false and makes the statement with the intent to steal. A defendant who
sells for an exorbitant price a painting that he or she mistakenly or reasonably believes was painted
by Elvis Presley is not guilty of false pretenses.
“Recklessness” or representations made without information, however, are typically sufficient
for false pretenses. Representing that a painting was made by Elvis Presley when you are uncertain
or are aware that you have no firm basis for such a representation would likely be sufficient for
false pretenses.
In other words, the intent requirement is satisfied by knowledge that a representation is untrue,
an uncertainty whether a representation is true or untrue, or an awareness that one lacks sufficient
knowledge to determine whether a representation is true or false.
Defendants are not considered to possess an intent to defraud a victim of property when they
reasonably believe that they actually own or are entitled to own the property. You cannot steal
what you believe you are entitled to own.
Keep in mind that when possession passes to an individual and the owner retains the title, the
defendant is guilty of larceny by trick rather than false pretenses. An individual who obtains the
permission of an auto dealer to take a car for a drive and intends to and, in fact, does steal the car
is guilty of larceny by trick. Obtaining the title to the car with a check that the buyer knows will
“bounce” constitutes false pretenses. Another important difference is that larceny requires a taking
and carrying away of the property. False pretenses require only a transfer of title and possession.
In United States v. Alvarez, the U.S. Supreme Court considered the constitutionality of the fed-
eral Stolen Valor Act of 2005, 18 U.S.C. § 704(b). The law provides:
Whoever falsely represents himself or herself, verbally or in writing, to have been awarded
any decoration or medal authorized by Congress for the Armed Forces of the United States,
any of the service medals or badges awarded to the members of such forces, the ribbon, but-
ton, or rosette of any such badge, decoration, or medal, or any colorable imitation of such
item shall be fined under this title, imprisoned not more than six months, or both.
The prescribed prison term is enhanced to one year if the decoration involved is the Congressional
Medal of Honor, Distinguished Service Cross, Navy Cross, Air Force Cross, Silver Star, or Purple Heart.
Xavier Alvarez won a seat on the Three Valley Water District Board of Directors in 2007 (see
opening vignette). At a joint meeting with a neighboring water district board, Alvarez introduced
himself and noted that “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987,
I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.
I’m still around.” Alvarez had neither served in the military nor been awarded the Congressional
Medal of Honor. In the past, Alvarez had falsely claimed to have rescued the American ambassador
during the Iran hostage crisis and to have been a helicopter pilot during the Vietnam War. Other
misrepresentations included playing hockey for the Detroit Red Wings, working as a police officer,
and having been secretly married to a Mexican movie star.
The U.S. Supreme Court upheld a Court of Appeals decision overturning Alvarez’s conviction.
Justice Anthony Kennedy stated that the government may validly limit false speech that is used to
fraudulently obtain a material benefit such as money or employment. However, “[w]ere the Court
to hold that the interest in truthful discourse [on military medals] alone is sufficient to maintain a
ban on speech, absent any evidence that the speech was used to gain material advantage it would
give government a broad censorial power unprecedented in the Court’s case or in our constitu-
tional tradition.”20
Model Penal Code

Section 223.3. Theft by Deception
A person is guilty of theft if he purposely obtains property of another by deception. A person
deceives if he purposely:
(1) creates or reinforces a false impression, including false impressions as to law, value, intention
or other state of mind; but deception as to a person’s intention to perform a promise shall
not be inferred from the fact alone that he did not subsequently perform the promise;
(2) prevents another from acquiring information which would affect his judgment of a
transaction;
(3) fails to correct a false impression which the deceiver previously created or reinforced, or
which the deceiver knows to be influencing another to whom he stands in a fiduciary or
confidential relationship;
(4) fails to disclose a lien, adverse claim or other legal impediment to the enjoyment of prop-
erty which he transfers or encumbers in consideration for the property obtained, whether
such impediment is or is not valid, or is or is not a matter of official record.
The term “deceive” does not, however, include falsity as to matters having no pecuniary sig-
nificance or puffing by statements unlikely to deceive ordinary persons in the group addressed.
Analysis
•• The term deception is substituted for “false pretense or misrepresentation.”
•• The defendant must possess the intent to defraud. This entails a purpose to obtain the prop-
erty of another and a purpose to deceive the other person.
•• The act requirement is satisfied by a misrepresentation as well as by reinforcing faulty infor-
mation. False future promises are considered to constitute false pretenses.
•• There is no duty of disclosure other than when the defendant contributes to the creation
of a false impression or where the defendant has a duty of care toward the victim (fiduciary
or confidential relationship) or there is a legal claim on the property. A seller also may not
interfere with (destroy or hide) information.
•• False pretenses do not include a misrepresentation that has no significance in terms of the
value of the property (e.g., the political or religious affiliation of a salesperson) or puffing or
nondisclosure.
The Legal Equation

False pretenses = Misrepresentation or deceit
+ intent to steal property
+ v ictim relies on misrepresentation and conveys title and

possession.
THEFT
A number of states have consolidated larceny, embezzlement, and false pretenses into a single
theft statute. The MPC and several state provisions also include within their theft statutes the
property offenses of receiving stolen property, blackmail or extortion, the taking of lost or mistak-
enly delivered property, theft of services, and the unauthorized use of a vehicle.
Larceny, embezzlement, and false pretenses are all directed against wrongdoers who unlaw-
fully interfere with the property interests of others, whether through “taking and asportation,”
“converting,” or “stealing.” The commentary to MPC Section 223.1 explains that each of these
property offenses involves the “involuntary” transfer of property, and in each instance, the perpe-
trator “appropriates property of the victim without his consent or with a consent that is obtained
by fraud or coercion.” An example is the Texas law on consolidation of theft offenses, which com-
bines theft, false pretenses, embezzlement, and other offenses against property.21
How do these consolidated theft statutes make it easier for prosecutors to charge and convict
defendants of a property offense? A prosecutor under these consolidated theft statutes may charge
a defendant with “theft” and, in most jurisdictions, is not required to indicate the specific form of
theft with which the defendant is charged. The defendant will be convicted in the event that the
evidence establishes beyond a reasonable doubt either larceny, embezzlement, or false pretenses. A
prosecutor under the traditional approach would be required to charge a defendant with the sepa-
rate offense of larceny, embezzlement, or false pretenses. The defendant would be acquitted in the
event that he or she was charged with deceitfully obtaining possession and title (false pretenses)
but the evidence established that the defendant had only obtained possession.22
The Pennsylvania consolidated theft statute, Section 3902, provides that conduct considered
theft “constitutes a single offense. An accusation of theft may be supported by evidence that it was
committed in any manner that would be theft under this chapter, notwithstanding the specifica-
tion of a different manner in the complaint or indictment.”
Consolidated statutes typically grade the severity of larceny, embezzlement, and false pretenses
in a uniform fashion based on the value of the property, whether the stolen property is a firearm or
motor vehicle, and factors such as whether the offense took place during the looting of a disaster area.
Model Penal Code

Section 223.1. Consolidation of Theft Offenses
(1) Conduct denominated theft in this Article constitutes a single offense. An accusation of
theft may be supported by evidence that it was committed in any manner that would be
theft under the Article, notwithstanding the specification of a different manner in the
indictment or information, subject only to the power of the Court to ensure a fair trial by
granting a continuance or other appropriate relief where the conduct of the defense would
be prejudiced by lack of fair notice or by surprise.
(2) Grading of Theft Offenses:
(a) Theft constitutes a felony of the third degree if the amount involved exceeds $5,000,
or if the property stolen is a firearm, automobile, airplane, motorcycle, motorboat, or
other motor-propelled vehicle, or in the case of theft by receiving stolen property, if the
receiver is in the business of buying or selling stolen property.
(b) Theft not within the preceding paragraph constitutes a misdemeanor, except that if
the property was not taken from the person or by threat, or in breach of a fiduciary
obligation, and the author proves by a preponderance of the evidence that the amount
involved was less than $50, the offense constitutes a petty misdemeanor.
(c) The amount involved in a theft shall be deemed to be the highest value, by any rea-
sonable standard, of the property or services which the actor stole or attempted to
steal. Amounts involved in thefts committed pursuant to one scheme or course of con-
duct . . . may be aggregated in determining the grade of the offense.
(3) It is an affirmative defense to prosecution for theft that the actor:
(a) was unaware that the property or service was that of another;
(b) acted under an honest claim of right to the property or service involved or that he had
a right to acquire or dispose of it as he did; or
(c) took property exposed for sale, intending to purchase and pay for it promptly, or
reasonably believing that the owner, if present, would have consented.
(4) It is no defense that theft was from the actor’s spouse except that misappropriation of
household and personal effects, or other property normally accessible to both spouses, is
theft only if it occurs after the parties have ceased living together.

In May 2012, a teaching fellow in a government class On the final exam, Levitt and Lin randomly assigned
at Harvard discovered that 125 students or almost half seats to students and increased the number of teach-
of the class had been cheating. In some instances, ing assistants proctoring the test, and the evidence
students submitted identical answers on the take- of cheating disappeared. The professor forwarded the
home test including typographical errors. Roughly half names of students suspected of cheating to the dean,
of the students implicated in the scandal received dis- four of whom admitted to cheating. Pressure from par-
ciplinary probation and were suspended from Harvard ents resulted in the investigation into cheating being
for a year. Harvard has an average of seventeen cases dropped by the university.
a year in which students are suspended for academic Are these incidents the exception or part of a gen-
dishonesty. eral trend? As many as 75 percent of undergraduates
This is only one of various large-scale incidents admit that they have cheated, and over 40 percent of
of cheating on college exams. In 2007, thirty-four stu- graduate students admit to cheating to improve their
dents or nearly 10 percent of the entering MBA class grade. Some researchers dispute whether cheating
at Duke were expelled, were suspended, or flunked for among college students has increased over the years,
collaborating on a take-home test. In the same year, it although they agree that in recent years it is the best
was revealed that eighty-four present and past students as well as the worst students who now engage in
at Diablo Valley College in California paid employees in cheating. A survey by the Center for Academic Integrity
the registrar’s office to change their grades and went conducted between 2010 and 2011 of 1,800 students
so far as to trade sexual favors for grade changes. at nine separate state universities found that
Many of these community college students had their
grades raised from F to A and, on the strength of these 70 percent admitted to cheating on exams,
grades, were admitted to highly competitive four-year
colleges. 84 percent admitted to cheating on written assign-
In 2014, the Air Force Academy launched an inves- ments, and
tigation into whether forty first-year students cheated 52 percent had copied one or more sentences
on a chemistry lab report. This was the fourth inves- from a Web site without citation.
tigation into cheating at the Air Force Academy since
2004. In a demonstration of how a culture of cheat- Males and females cheat in equal numbers.
ing can be perpetuated following college, it earlier Cheating is not confined to four-year colleges; the
was disclosed that dozens of nuclear missile officers survey found that 45.6 percent of community college
at Malmstrom Air Force Base in Montana cheated on students have cheated during their two years at the
their launch proficiency exams. institution.
Dental schools are not immune from cheating. The pressure to cheat begins early in students’
In 2007, dental students at the University of Indiana academic careers. Most students who cheat in college
hacked into a computer system containing X-rays that also cheat in high school. Roughly 15 percent of stu-
the students would be asked to analyze on an exam. dents who engage in academic dishonesty state that
Nine students were expelled, sixteen were suspended, they have no regrets over cheating. Researchers con-
and twenty-one received letters of reprimand. More tend that this pattern of “cutting corners” continues
recently, there has been an investigation of cheating throughout an individual’s life and may result in unethi-
at Stanford. cal behavior, corporate criminality, and marital infidelity.
In 2015, thousands of foreign students were A number of elite high schools have been rocked
expelled from U.S. universities for academic nonper- by cheating scandals in recent years. Eric Anderman, a
formance or cheating. The Department of Justice has professor of educational psychology at The Ohio State
indicted fifteen Chinese nationals in an elaborate University, concludes that 85 percent of all high school
scheme in which they were paid thousands of dol- students cheat at least once prior to their graduation.
lars to take the SAT and various graduate entrance At elite Stuyvesant High School in New York City, a
examinations on behalf of individuals applying to U.S. student photographed pages of a state standardized
universities. examination and sent the photos to other students
Two well-known economists, Steven Levitt of the who had yet to take the test. In Great Neck, New York,
University of Chicago and Ming-Jen Lin at National students were caught paying another person to take
Taiwan University, studied a classroom in which the their SAT, and some of the leading high schools in
instructor suspected that cheating was taking place. Texas also experienced widespread cheating.
The two economists examined test results and found A number of factors are viewed as motivating stu-
that 10 percent of the students likely cheated on the dents to cheat: a misunderstanding of the definition of
midterm because they had a number of the same academic dishonesty, competition for good grades, a
incorrect answers as the person sitting next to them. lack of respect for instructors who seem uninterested in
the class, heavy academic workloads, the small probabil- stakes” machine-graded assignments. In these types
ity of being detected, and the ease of cheating using the of learning environments, learning becomes second-
Internet. Some educators, rather than blaming students, ary to the pursuit of grades, and there is little sense
blame a significant amount of cheating on the structure that education is a rewarding and creative experience.
of college curricula in which students are required to What is your view of the causes of college cheating? Do
take large classes in which they have little interest and you believe this is a “problem” in need of a remedy? Is
in which grades are based on limited number of “high- cheating on a class assignment a criminal offense?
RECEIVING STOLEN PROPERTY

There was no offense of receiving stolen property under the common law. An English court,
in 1602, condemned a defendant who knowingly purchased a stolen pig and cow as an “arrant
knave” and complained that there was “no separate crime of receiving stolen property.” In the late
seventeenth century, the English Parliament passed a law providing that an individual who know-
ingly bought or received stolen property was liable as an accessory after the fact to theft. In 1827,
Parliament passed an additional statute declaring that receiving stolen property was a criminal
offense. This law was later incorporated into the criminal codes of the American states and, today,
is punished as a misdemeanor or felony, depending on the value of the property.
The offense of receiving stolen property requires that an individual
•• receive property,
•• knowing the property to be stolen,
•• with the intent to permanently deprive the owner of the property.
Why do we punish receiving stolen property as a separate offense? Thieves typically sell stolen
property to “fences,” individuals who earn a living by buying and then selling stolen property. The
offense of receiving stolen property is intended to deter “fencing.” Generally, an individual may
not be charged with both stealing and receiving stolen property.
Actus Reus
The actus reus of receiving stolen property requires that an individual control the stolen property,
however briefly. An individual receiving the stolen items may take either actual possession of the
property or constructive possession of the property by arranging for the property to be delivered to
a specific location or to another individual.
Receiving stolen property traditionally was limited to goods that were taken and carried away
in an act of larceny. The trend is to follow the approach of the MPC and to punish the receipt of
stolen property, whether taken through larceny, embezzlement, false pretenses, or another illegal
method.
Most state statutes on receiving stolen property cover both personal and real property. The
MPC limits the statute to personal property on the grounds that this property is disposed of
through fences and that this is not the case with real estate.
Mens Rea
State statutes typically require the mens rea of actual knowledge that the goods are stolen. Other
statutes broaden this standard by providing that it is sufficient for an individual to believe that the
goods are stolen. A court would likely conclude that a jeweler believed that a valuable watch was
stolen that he or she inexpensively purchased from a known dealer in stolen merchandise. A third
group of statutes applies a recklessness or negligence standard to the owners of junkyards, pawn-
shops, and other businesses where they neglect to investigate the circumstances under which the
seller obtained the property. Consider the case of the owner of an art gallery specializing in global
art who regularly buys rare and valuable Asian and African artwork that is thousands of years old
and who, in one instance, buys a piece for next to nothing from individuals who wander into the
shop. These statutes would hold the buyer guilty of receiving stolen property for failing to investi-
gate how the seller obtained the property.
How can we determine whether an individual knows or honestly believes that property is
stolen? Courts generally hold that it is sufficient if a reasonable person would have possessed this
awareness. In most cases, this is inferred from the price, the seller, whether the type of property is
frequently the subject of theft, the circumstances of the sale, and whether the recipient purchased
stolen merchandise from the same individual in the past.
The recipient of stolen property must also have the mens rea to permanently deprive the owner of
possession. A defendant does not possess the required intent who believes that he or she is the actual
owner of the property, because there is no intent to deprive another of possession. The required
Read Hurston
v. State on the
intent is also lacking where the recipient intends to return the property to the rightful owner.
study site: study The required intent to permanently deprive an individual of possession must concur with the
.sagepub.com/ receipt of the property. The MPC, however, provides that the required intent may arise when an
lippmaness2e. individual receives and only later decides to deprive the owner of possession.
Model Penal Code

Section 223.6. Receiving Stolen Property
(1) A person is guilty of theft if he purposely receives, retains, or disposes of movable property
of another knowing that it has been stolen, or believing that it has probably been stolen,
unless the property is received, retained, or disposed with purpose to restore it to the owner.
“Receiving” means acquiring possession, control or title, or lending on the security of the
property.
(2) The requisite knowledge or belief is presumed in the case of a dealer who:
(a) is found in possession or control of property stolen from two or more persons on sepa-
rate occasions;
(b) has received stolen property in another transaction within the year preceding the trans-
action charged; or
(c) being a dealer in property of the sort received, acquires it for a consideration which he
knows is far below its reasonable value.
“Dealer” means a person in the business of buying or selling goods, including a pawnbroker.
Analysis
•• Receiving stolen property is limited to property that can be moved and does not include
real estate.
•• There is no requirement that the purchaser know that the property is in fact stolen; it is suf-
ficient that an individual believe that the property probably has been stolen.
•• A defendant must know or believe that the property probably has been stolen. The intent to
restore the property to the owner is a defense.
•• The required intent may arise after the property is in the possession of the defendant.
•• Knowledge is assumed under certain circumstances, including the fact that an individual is
a “dealer.”
•• The receiver is liable regardless of the method employed by the thief, whether larceny,
embezzlement, false pretenses, or other form of theft.
The Legal Equation

Receiving stolen property = Control over stolen property
+ pproperty
urposely knowing (recklessly, negligently) that
is stolen
+ intent to permanently deprive individual of property.

You Decide 9.2 John L. Clough discovered vari- Lee Sonnier, who presented a driver’s license and pawned
ous items missing from his music the speakers for $225. The four speakers were worth at
club. These items included four least $350. Sonnier appealed her conviction for “theft by
amplifier speakers, which were receiving.” There are three elements of this offense: first,
used by bands that played at the a theft by another person. Second, the defendant received
club. An employee, Gaylord Burton, worked at the club for the stolen property. Third, the defendant received the sto-
several months and disappeared at the same time that len property knowing that it was stolen. Was Sonnier in
the speakers were discovered to be missing. An employee possession of the speakers? Sonnier also claimed that
reportedly had seen Burton taking the speakers on the she lacked actual knowledge that the speakers were sto-
morning of November 2, 1989. The equipment later was len. The speakers were pawned for a reasonable amount
discovered at a pawnshop. An employee of the pawnshop, of money, and a reasonable person would have no notion
Anthony Smith, testified that two men had tried to pawn of the monetary value of the speakers. Should the Texas
the speakers. Smith refused to accept the speakers with- appellate court affirm Sonnier’s conviction? See Sonnier v.
out identification. The two men returned later with Olga State, 849 S.W.2d 828 (Tex. App. 1992).
FORGERY AND UTTERING

The law of forgery originated in the punishment of individuals who used or copied the king’s
seal without authorization. The seal was customarily affixed to documents that bestowed various
rights and privileges on individuals, and employing this stamp without authorization was viewed
as an attack on royal power and prerogative. The law of forgery was gradually expanded to include
private as well as public documents. Forgery is defined as creating a false legal document or the
material modification of an existing legal document with the intent to deceive or to defraud oth-
ers. The crime of forgery is complete upon the drafting of the document regardless of whether it is
actually used to defraud others. Uttering is a separate and distinct offense that involves the actus
reus of circulating or using a forged document.
Forgery and uttering are typically limited to documents that possess “legal significance.” This
means that the document, if genuine, would carry some legal importance, such as conveying prop-
erty or authorizing an individual to drive. A falsified document is not a forgery when it merely
impacts an individual’s reputation or professional advancement, such as a fabricated newspaper
account of a political candidate’s evasion of military service.
The MPC extends forgery and uttering to all varieties of documents. This would include the
attempt several years ago to sell a manuscript that was alleged to be Adolf Hitler’s diary but, in
truth, was a skillfully produced fraud. Fraudulent documents that may be punished as a forgery
under state statutes include checks, currency, passports, driver’s licenses, deeds, diplomas, tickets,
credit cards, immigration visas, and residency and work permits.
There are several elements to establish forgery. Each must be proven beyond a reasonable
doubt:
•• a false document or material modification of an existing document that is

•• written with intent to defraud and,
•• if genuine, would have legal significance.
The elements of uttering are
•• offering a
•• forged instrument that is
•• known to be false and is
•• presented as authentic
•• with the intent to defraud or deceive.
Forgery is similar to other property crimes in that the forger is unlawfully obtaining a benefit
from another individual. The larger public policy behind criminalizing forgery is to ensure that
people are able to rely on the authenticity or truth of documents. You want to be confident that
when you buy a car, the title you receive is genuine and that the automobile has not been stolen.
Combating the forgery of passports and visas has taken on particular importance in securing the
borders of the United States against the entry of terrorists.
Actus Reus
The important point to remember is that forgery is falsely making or materially altering an existing
document. This may entail creating a false document or materially (fundamentally) changing an
existing document without authorization. A material modification is a change or addition that has
legal significance.
A forgery may involve manufacturing a “false identification” for a friend who is too young to
drink, creating false passports for individuals seeking to illegally enter the United States, or fab-
ricating tickets to a sold-out rock concert. Forgery may also involve materially or fundamentally
altering or modifying an existing document. Stealing a check, signing the name of the owner of
the account without authorization, and making the check payable to yourself for $100 is forgery.
In this example, although the check itself is genuine, the details do not reflect the intent of the
owner of the check. On the other hand, merely filling in the date on an undated check would ordi-
narily not constitute a material alteration because this change typically has no legal significance.
In other words, the question in forgery is whether a document is a “false writing.” The docu-
ment itself may be false, or the material statements in the document may be materially false.
Mens Rea
Forgery requires an intent to defraud; this need not be directed against a specific individual.
Uttering
Uttering is offering a document as genuine that is known to be false with the intent to deceive.
This is a different offense from forgery, although the two are often included in a single statute.
Merely presenting a forged check to a bank teller for payment knowing that it is inauthentic com-
pletes the crime of uttering. The teller need not accept the forged check as genuine.
Simulation
Several states follow the MPC in providing for the crime of simulation. This punishes the cre-
ation of false objects with the purpose to defraud, such as antique furniture, paintings, and jewelry.
Simulation requires proof of a purpose to defraud or proof that an individual knows that he or she
is “facilitating a fraud.”
Model Penal Code

Section 224.1. Forgery
(1) A person is guilty of forgery if, with purpose to defraud or injure anyone, or with knowl-
edge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:
(a) alters any writing of another without his authority; or
(b) makes, completes, executes, authenticates, issues or transfers any writing so that it pur-
ports to be the act of another who did not authorize that act, or to have been executed
at a time or place or in a numbered sequence other than was in fact the case, or to be a
copy of an original when no such original existed; or
(c) utters any writing which he knows to be forged in a manner specified in paragraphs (a)
or (b).
“Writing” includes printing or any other method of recording information, money, coins,
tokens, stamps, seals, credit cards, badges, trademarks, and other symbols of value, right,
privilege, or identification.
(2) Forgery is a felony of the second degree if the writing is or purports to be part of an issue
of money, securities, postage or revenue stamps, or other instruments issued by the gov-
ernment, or part of an issue of stock, bonds or other instruments representing interests in
or claims against any property or enterprise. Forgery is a felony of the third degree if the
writing is or purports to be a will, deed, contract, release, commercial instrument, or other
document evidencing, creating, transferring, altering, terminating, or otherwise affecting
legal relations. Otherwise forgery is a misdemeanor.
Analysis
•• This section applies to “any writing” and to “any other method of recording information,
money, coins, credit cards and trademarks and other symbols.” Forgery is not limited to
documents having legal significance. As a result, documents such as medical prescriptions,
diplomas, and trademarks are encompassed within this provision. The section is not limited
to economic harm and may include circulating a false document that injures an individual’s
reputation.
•• Serious forgeries that have the most widespread and serious impact are second-degree felo-
nies, carrying a maximum penalty of ten years. Other forgeries are punishable as felonies of
a third degree, carrying a maximum of five years. Forgeries of documents that do not have
legal significance, such as diplomas, are misdemeanors.
•• Counterfeiting of currency is included in this section rather than being made a separate
offense.
•• Section 1(c) punishes uttering.
The Legal Equation

Forgery = reation of a false document (of legal significance) or material
C
alteration of an existing document
+ fraudulent intent.
Uttering = Passing of a false document (of legal significance)
+ purposely or knowingly deceitful.
You Decide 9.3 McGovern owed $1,800 to license and the traveler’s checks and proceeded to
S c ull. M c G over n p ur c h as e d cash the checks at two banks and collected $2,400.
$2,400 in traveler’s checks from McGovern then reported to the police that the checks
Citibank for purposes of repaying had been stolen from his car, and in accordance with
S c u l l. T h e c h e c k s m a y b e the highly advertised policy concerning traveler’s
redeemed for money at most banks or stores when checks, McGovern was provided with replacement
signed by the individual to whom the check is issued. checks in the amount of $2,400 by Citibank. Did
Scull and McGovern entered into a corrupt arrange- Scull’s impersonation of McGovern constitute forg-
ment designed to reimburse Scull. Scull practiced ery? See United States v. McGovern, 661 F.2d 27 (3rd
McGovern’s signature and took McGovern’s driver’s Cir. 1981).
ROBBERY
Robbery is typically described as aggravated larceny. You should think of robbery as larceny from
an individual with the use of violence or intimidation. Professors Perkins and Boyce observe that
in ancient law, the thief who stole quietly and secretly was viewed as deserving harsher punish-
ment than the robber who openly employed violence. The common law reversed this point of
view and categorized robbery as among the most serious of felonies, which should be treated as a
separate offense deserving of harsher punishment than larceny.23
Robbery is the trespassory taking and carrying away of the personal property of another with
intent to steal. Robbery is distinguished from larceny by additional requirements:
•• The personal property must be taken from the victim’s person or presence.
•• The taking of the personal property must be achieved by violence or intimidation.
The California criminal code defines robbery as the “felonious taking of personal property in
the possession of another, from his person or immediate presence, and against his will, accom-
plished by means of force or fear.” In this chapter, robbery is treated as a property crime, although
the FBI categorizes robbery as a violent crime against the person.24
Actus Reus
The property must be taken from the person or presence of the victim. Property is considered to be on
the person of the victim if it is in his or her hands or pockets or is attached to his or her body (an
earring) or clothing (a key chain).
The requirement that an object must be taken from the “presence of the victim” is much
more difficult to apply. The rule is that the property must be within the proximity and control of
the victim. What does this mean? The prosecution is required to demonstrate that had the victim
not been subjected to violence or intimidation, he or she could have prevented the taking of the
property.
In one frequently cited case, the defendants forced the manager of a drugstore to open a safe at
gunpoint. The defendants then locked the manager in an adjoining room and removed the money
from the safe. An Illinois court found that the money was under the victim’s personal control and
protection and that he could have prevented the theft had he not been subjected to an armed
threat.25 Professor LaFave illustrates the requirement that property be taken from the presence of
the victim by noting that it would not be robbery to immobilize a property owner at one location
while a confederate takes the owner’s property from a location several miles away, because the
owner could not have prevented the theft.26
The property must be taken by violence or intimidation. The Florida statute provides that robbery
involves a taking through “the use of force, violence, assault, or putting in fear.”27 Keep in mind
that it is the use of violence or intimidation that distinguishes robbery from larceny. The line
between robbery and larceny, however, is not always clear. In general, any degree of force is suf-
ficient for robbery. You are walking down the street loosely carrying your backpack when a thief
snatches the backpack out of your grasp. You are so surprised that you fail to resist. Is this robbery?
The consensus is that the incident is not a robbery. This would qualify as robbery in the event that
you are pushed, are shoved, or struggle to hold on to the backpack. It is also robbery where force
is applied to remove an item attached to your clothing or body, such as an earring or necklace.
Does it make sense to distinguish between robbery and larceny based on whether the perpetrator
employed a small amount of force?
The MPC attempts to avoid this type of technical analysis and provides that robbery requires
“serious bodily injury.” This approach has been rejected by most states on the grounds that it
excludes street crimes in which victims are pushed to the ground or receive minor injuries. Before
we leave this topic, we should note that it is a robbery when an assailant steals your personal items
by rendering you helpless through liquor or drugs.
Property may also be seized as a result of intimidation or the fear of immediate infliction of violence.
The threat of immediate harm must place the victim in fear, meaning in apprehension or in antic-
ipation of injury.
The threat may be directed against members of the victim’s family or relatives, and some
courts have extended this to anyone present as well as to the destruction of the home. The threat
must also be shown to have caused the victim to hand over the property.
Again, a threat may be “implied.” This might involve a large and imposing panhandler who
follows an elderly pedestrian down a dark and isolated street and angrily and repeatedly demands
that the pedestrian “give up the money in his or her pocket.” The threat must place the victim in
apprehension of harm and cause him or her to hand over the property. The jury is required to find
that the victim was actually frightened into handing over his or her property. Some courts require
that a reasonable person would have acted in a similar fashion.
Mens Rea
The assailant must possess the intent to permanently deprive an individual of his or her property.
The defendant may rely on the familiar defense that he or she intended only to borrow the prop-
erty or was playing a practical joke. Courts are divided over whether it is a defense that the thief
acted under a “claim of right,” that the thief acted under an honest belief that the victim owed
him money, or that the defendant reasonably believed that he or she owned the property. Some
courts hold that even a claim of right does not justify the resort to force or intimidation to reclaim
property.
Concurrence
The traditional view is that the intent to steal and the application of force or intimidation must
coincide. The violence or intimidation must be employed for the purpose of the taking. This means
that the threat or application of force must occur at the time of the taking. An individual does not
commit a robbery who seizes property and then employs force or intimidation. A pickpocket who
removes a victim’s wallet and resorts to force only in response to the victim’s accusation of theft
is not guilty of robbery.
A number of states have followed the MPC in adopting language that provides that force or
intimidation may occur “in the course of committing a theft.” This is interpreted to mean that
force or threat occurs “in an attempt to commit theft or in flight after the attempt or commis-
sion.” The commentary explains that a thief’s use of force against individuals in an effort to escape
indicates that the thief would have employed force “to effect the theft had the need arisen.” Even
under this more liberal approach, an assailant who knocks the victim unconscious and then forms
an intent to steal would not be guilty of robbery.28 The Florida robbery statute defines robbery
to include force or intimidation “in the course of the taking” of money or other property. This
includes force or threats “prior to, contemporaneous with, or subsequent to the taking of the prop-
erty . . . if it and the act of taking constitute a continuous series of acts or events.”29
Grading Robbery
At common law, the theft of property that terrorized the victim resulted in the death penalty.
Today, robbery statutes generally distinguish between simple and aggravated robbery. This is based
on the degree of dangerousness caused by the defendant’s act and the fear and apprehension expe-
rienced by the victim, rather than the value of the property. The factors that aggravate robbery
include
•• the robber was armed with a dangerous or deadly weapon or warned the victim that the
robber possessed a firearm;
•• the robber used a dangerous instrumentality, such as a knife, hammer, axe, or aggressive
animal;
•• the robber inflicted serious bodily injury; and
•• the robber carried out the theft with an accomplice.
You might question whether we need the crime of robbery. Is there any justification for the
crime of robbery other than historical tradition? Why not simplify matters and merely charge a
defendant with larceny along with assault and battery?
Model Penal Code

Section 222.1. Robbery
(1) A person is guilty of robbery if, in the course of committing a theft, he:
(a) inflicts serious bodily injury upon another; or
(b) threatens another with or purposely puts him in fear of immediate serious bodily
injury; or
(c) commits or threatens immediately to commit any felony of the first or second degree.
An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to
commit theft or in flight after the attempt or commission.
(2) Robbery is a felony of the second degree, except that it is a felony of the first degree if in
the course of committing the theft the actor attempts to kill anyone, or purposely inflicts
or attempts to inflict serious bodily harm.
Analysis
•• The infliction or threat of harm is limited to “serious bodily injury.” The inclusion of the
commission or threat to commit a felony of the first or second degree as an element of rob-
bery is intended to encompass the threat or commission of serious injury to an individual
other than the victim as well as the threat to destroy or the destruction of property.
•• The harm may be inflicted or threatened “in the course of committing the theft.” This
includes violence or the threat of violence to obtain or retain property and to prevent pur-
suit or to escape.
•• The commentary explains that the same punishment is imposed for both robbery and
attempted robbery. It is immaterial whether the assailant actually succeeds in the taking of
property. This reflects the view that the essence of robbery is the placing of individuals in
danger rather than the deprivation of property.
•• The infliction or threat of harm must be immediate.
•• The taking is not required to be from the person or in the presence of the victim. An offender
might threaten the victim in order to extract ransom from an individual who is not present.
•• Robbery is generally punished as a felony of the second degree, subject to ten years’ imprison-
ment. Life imprisonment is viewed as an extreme penalty that is reserved for violent offenders.
The Legal Equation

Robbery = T aking of the property of another from the person or presence of the
person
+ by violence or threat of immediate violence placing another in fear
+ intent to permanently deprive another individual of property.
You Decide 9.4 Elaine Barker was moving and stopped the car “several times while Barker held on
items from a shopping cart into the to a windshield wiper to keep from falling off.” Messina
trunk of her car. Karl Messina “turned the car sharply causing Barker to fall to the
grabbed Barker’s purse from the ground” causing her to suffer a broken foot and lacera-
shopping cart and fled. Barker gave tions that required stitches. Was Messina guilty of a rob-
chase. Messina managed to get into his car and closed bery? Consider that Florida law requires that force be
the door. Barker sat on the hood of Messina’s car in an used “in the course of the taking.” See Messina v. State,
effort to prevent him from driving away. Messina started 728 So. 2d 818 (Fla. Dist. Ct. App. 1999).
CARJACKING
Carjacking is a newly recognized form of property crime that is punished under both federal
and state statutes. California is typical in defining carjacking as a form of robbery and punishes
the taking of a motor vehicle “in the possession of another, from his or her person or immediate
presence . . . against his or her will.” This must be accomplished by “force or fear.” The perpetrator
is not required to intend to permanently steal the automobile. The California statute is satisfied
by an intent to either “permanently or temporarily deprive the victim of possession of the car.”30
Several state statutes provide that force must be directed against an occupant of the car. The
New Jersey statute requires that while committing the unlawful taking of the automobile, there
must be the infliction or use of force against an occupant or person in possession or control of
the motor vehicle.31 Virginia stipulates that the taking be carried out by violence to the person, by
assault, or by otherwise putting a person in fear of serious bodily injury.32
The trend is to find a defendant guilty of carjacking when an automobile is seized and not
to require that the perpetrator move the automobile. A carjacking may be directed against an
occupant of the car or against an individual outside the car who is in possession of the keys and is
sufficiently close to control the vehicle.
The punishment of carjacking is based on the degree of harm and apprehension caused by the
offense. New Jersey punishes carjacking by between ten and twenty years in prison and a fine of
up to $200,000. The Florida statute punishes carjacking with life imprisonment when committed
with a firearm or other deadly weapon.33
EXTORTION
The common law misdemeanor of extortion punished the unlawful collection of money by a
government official. William Blackstone defined extortion as “an abuse of public justice, which
consists in any officer’s unlawful taking, by color of his office, from any man, any money or thing
of value that is not due to him, or more than is due, or before it is due.”34 The law of extortion
was gradually expanded to punish threats by private individuals as well as public officials. The
elements of the statutory crime of extortion are as follows:
•• the taking of property from another by

•• a present threat of future violence or threat to circulate secret, embarrassing, or harmful
information; threat of criminal charges; threat to take or withhold official government
action; or threat to inflict economic harm and other harms listed in the state statute, with
•• a specific intent to deprive a lawful possessor of money or property.
Note that while robbery involves a threat of immediate violence, extortion entails a threat of
future violence or other harms. The threat to disclose secret or embarrassing information is com-
monly referred to as the crime of blackmail. Robbery must be committed in the presence of the
victim, while extortionate threats may be communicated over the phone or in a letter.
The majority of state statutes provide that the crime of extortion is complete when the threat
is made. The prosecution must demonstrate that the victim believed that there was a definite
threat and believed that this threat would be carried out. A Michigan statute punishes “any person
who shall . . . maliciously threaten to accuse another of any crime . . . or . . . maliciously threaten
any injury to . . . [a] person or property . . . with intent to thereby . . . extort money or any pecu-
niary advantage . . . or . . . to compel the person to do . . . any act against his will.”35 Other statutes
require the handing over of money, property, or valuable items in response to the threat. The pros-
ecution must establish a causal relationship between the threat and the conveying of the money
or property. The “handing over” requirement is illustrated by the language of the New York stat-
ute, which provides that an individual is guilty of extortion when he or she “compels . . . another
person to deliver . . . property to himself or to a third person by means of instill[ing] . . . fear.”36
The object of extortion may be money, property, or “anything of value,” including labor or
services. The Iowa Supreme Court ruled that a college student who attempted to extort a date
from a female acquaintance had attempted to extort “something of value for himself” and that
value should be broadly interpreted to include “relative worth, utility, or importance” rather than
“monetary worth.”37
Harrington, a divorce lawyer, represented in a divorce action a female who had been the vic-
tim of severe physical abuse by her husband. Harrington arranged for another female to seduce
the husband, and while the two were in a romantic embrace in bed, Harrington entered and took
photographs. Harrington subsequently threatened to disclose the husband’s adultery unless he
paid his wife a divorce settlement of $175,000. The Vermont Supreme Court ruled that Harrington
“acted maliciously and without just cause . . . with the intent to extort a substantial fee . . . to
[Harrington’s] personal advantage.”38
Several commentators contrast extortion with bribery. Extortion involves taking money, prop-
erty, or anything of value from another through threat of violence or harm. In bribery, money
or a valuable benefit is offered or provided to a public official in return for an official’s action or
inaction. This act may involve a legislator voting in favor of or against a law, a judge acquitting or
convicting a defendant, or a clerk giving priority to an applicant for a driver’s license or passport.
The inaction entails a failure to act, such as a building inspector overlooking safety violations in a
music club. There must be an intent to corruptly influence an official in the conduct of his or her
office. Individuals are held guilty of bribery for offering as well as accepting a bribe.
We next look at the common law offenses developed to protect an individual’s dwelling and at
the incorporation of these common law crimes in state statutes that cover a broad range of struc-
tures and vehicles.
The Legal Equation

Extortion = Specific intent to deprive person of possession of property
+ threat of future violence, circulation of harmful information, economic

harm, or government action.
BURGLARY
Burglary at common law was defined as the breaking and entering of the dwelling house of
another at night with the intention to commit a felony. Burglary was punished by the death pen-
alty, reflecting the fact that a nighttime invasion of a dwelling poses a threat to the home, which
is “each man’s castle . . . and the place of security for his family, as well as his most cherished pos-
sessions.”39 Blackstone observed that burglary is a “heinous offense” that causes “abundant terror,”
which constitutes a violation of the “right of habitation” and which provides the inhabitant of a
dwelling with the “natural right of killing the aggressor.”40 The crime of burglary protects several
interests:
•• Home. The right to peaceful enjoyment of the home.

•• Safety. The protection of individuals against violent attack and fright within the home.
•• Escalation. The prevention of a dangerous confrontation that may escalate into a fatal
conflict.
In 1990, the U.S. Supreme Court noted that state statutes no longer closely followed common
law burglary and that these statutes, in turn, did not agree on a common definition of burglary.
This means that in thinking about burglary, you should pay particular attention to the definition
of burglary in the relevant state statute. As you read this section, analyze how burglary has been
modified by state statutes. In addition, consider whether we continue to need the crime of bur-
glary. What does burglary contribute that is not provided by other offenses?41
Table 9.1 lists the top ten states for property crimes per hundred thousand.
Breaking
Common law burglary requires a “breaking” to enter the home by a trespasser, an individual who
enters without the consent of the owner. A breaking requires an act that penetrates the structure,
Table 9.1 Top Ten States for Property Crimes* in 2014 per 100,000 Population
State Rate
Washington 3,706.1
New Mexico 3,542.3
South Carolina 3,460.3
Louisiana 3,458.8
Florida 3,415.5
Arkansas 3,338.0
Georgia 3,281.2
Arizona 3,197.5
Alabama 3,177.6
Tennessee 3,060.6
National Rate = 2,596.1
Source: Kathleen O’Leary Morgan and Scott Morgan, eds. State Rankings 2016: A Statistical View of America. Thousand
Oaks, CA: CQ Press, 2016, p. 47.
*Property crimes are offenses of larceny theft, burglary, and motor vehicle theft.
such as breaking a window or pushing open an unlocked door. Permanent damage is not required;
the slightest amount of force is sufficient. Why did the common law require a breaking? Most
commentators conclude that this requirement was intended to encourage homeowners to take
precautions against intruders by closing doors and windows. In addition, an individual who resorts
to breaking also typically lacks permission to enter, and the breaking is evidence of an “unlawful”
or “uninvited” entry. A breaking may also occur through constructive force. This entails entry by
fraud, misrepresentation, or threat of force; entry by an accomplice; or entry through a chimney.
Most statutes no longer require a breaking. Burglary is typically defined as an unlawful or
uninvited entry (e.g., lacking permission to enter). Note that it is not burglary under this definition
for an individual to enter a store that is open to the general public. Some courts have interpreted
statutes to cover the entry into a store by arguing that an individual who enters a store while con-
cealing that he or she plans to commit a crime has committed a fraud and therefore has entered
unlawfully. Courts have ruled that breaking into an ATM or other structure “too small for a human
being to live in or do business in is not a ‘building’ or ‘structure’ for the purpose of burglary.”42
Entry
The next step after the breaking is “entry.” This requires only that a portion of an individual’s
body enters the dwelling; a hand, foot, or finger is sufficient. Courts also find burglary when there
is entry by an instrument that is used to carry out the burglary. This might involve reaching into
a window with a straightened coat hanger to pull out a wallet or reaching an arm through a win-
dow to pour flammable liquid into a home. In a recent case, an individual launched an aggressive
verbal attack on his lover’s husband while reaching his arm threateningly through the open door
of the husband’s motor home. A Washington appellate court determined that this was sufficient
to constitute an intent to assault and a conviction for burglary.43 Note the general rule is that it
is not a burglary when an instrument is used solely to break the structure, such as tossing a brick
through a window.44
Another point to keep in mind is that the breaking must be the means of entering the dwelling.
You might break a window and then realize that the front door is open and walk in and steal
a television. There is no burglary because the breaking is not connected to the entry. A burglary
may also be accomplished constructively by helping a small, thin co-conspirator enter a home
through a narrow basement window.
Some statutes provide that a burglary may be committed by “knowingly . . . remaining unlaw-
fully in a building” with the required intent or “surreptitiously (secretly) remaining on the prem-
ises with the intent to commit a crime.” In Dixon v. State, for example, the defendant entered a
church during Sunday services, wandered into the church sanctuary, and stole money from the
collection plate in the pastor’s office. A Florida appellate court ruled that the defendant illegally
entered the sanctuary and surreptitiously remained in the structure when he closed the door to the
pastor’s office during the robbery.45
The important point to keep in mind is that the entry for a burglary must be trespassory,
meaning without consent. Note that stealing a computer from your own dorm room would not
be a burglary. The essence of burglary is the unlawful interference with the right to habitation of
another. In Stowell v. People, the Colorado Supreme Court observed that there is no burglary “if the
person entering has a right to do so, although he may intend to commit and may actually commit
a felony.” Otherwise, a schoolteacher “using the key furnished to her . . . to re-open the school-
house door immediately after locking it in the evening, for the purpose of taking (but not finding)
a pencil belonging to one of her pupils, could be sent to the penitentiary.”46
Dwelling House
The common law limited burglary to a “dwelling house,” a structure regularly used as a place to
sleep. A structure may be used for other purposes and still constitute a dwelling so long as the
building is used for sleep. The fact that the residents are temporarily absent from a summer cottage
does not result in the building’s losing its status as a dwelling. However, a structure that is under
construction and not yet occupied or a dwelling that has been permanently abandoned is not
considered a dwelling. The Illinois burglary statute provides that a dwelling is a “house, apartment,
mobile home, trailer, or other living quarters in which at the time of the alleged offense the own-
ers or occupants actually reside or in their absence intend within a reasonable period of time to
reside.”47
A dwelling at common law included the curtilage, or the land and buildings surrounding the
dwelling, including the garage, tool shed, and barn. A recently decided Washington case held a
defendant liable for a burglary when, with the intent to assault his former wife, he jumped over a
six-foot wooden fence in the backyard of the house she shared with her current lover.48
Most statutes no longer limit burglaries to dwelling houses and typically categorize the
burglary of a dwelling as an aggravated burglary. The California statute extends protection to
“any house, room, apartment, . . . shop, warehouse, store, mill, barn, stable, outhouse, . . . tent,
vessel, . . . floating home, railroad car, . . . inhabited camper, . . . aircraft, . . . or mine.”49 Other
statutes are less precise and provide that a burglary involves a “building or occupied structure, or
separately secure or occupied portion thereof.”50
Dwelling of Another
The essence of burglary under the common law is interference with an individual’s sense of safety
and security within the home. In determining whether the home is “of another,” you need to
examine who resides in the dwelling rather than who owns the dwelling. For example, a husband
who separates from his wife and moves out of the home that he owns with his spouse may be liable
for the burglary of his former home. In Ellyson v. State, the defendant was convicted of burglary for
breaking into the house that he and his estranged wife owned together with the intent of raping
his former wife. The couple was undergoing a divorce, and the court found that his “wife alone
controlled access to the home.”51 Also, an individual generally cannot burglarize a dwelling that he
or she shares with another. A burglary of this dwelling is possible only when the individual enters
into portions of the home under the exclusive control of his or her roommate with the requisite
criminal intent.
The requirement that an entry be of the dwelling of another is not explicitly stated in most
statutes. Despite the failure to include this language, you still cannot burglarize your own home
because an entry must be unlawful, meaning without a legal right, and you clearly are entitled to
enter your own home.
Nighttime
A central requirement of burglary at common law was that the crime be committed at night. The
nighttime hours are the time when a dwelling is likely to be occupied and when individuals are
most apt to be resting or asleep and vulnerable to fright and to attack. Perpetrators are also less
likely to be easily identified during the nighttime hours. The common law determined whether it
was nighttime by asking whether the identity of an individual could be identified in “natural light.”
State statutes no longer require that a burglary be committed at night. However, a breaking
and entering during the evening is considered an aggravated form of burglary and is punished
more severely. States typically follow the rule that night extends between sunset and sunrise or
from thirty minutes past sunset to thirty minutes before sunrise. English law defines nighttime as
extending from six at night until nine in the morning.52
Intent
The common law required that individuals possess an intent to commit a felony within the dwell-
ing at the time that they enter the building. An individual is guilty of a burglary when he or she
enters the dwelling, regardless of whether he or she actually commits the crime or abandons his or
her criminal purpose. The intent must be concurrent with the entry; it is not a burglary when the
felonious intent is formed following entry.
Some judges recognize that individuals who enter a building are guilty of a burglary in the
event that they develop a felonious intent after entering into a building and unlawfully break into
a secured space, such as an office or dorm room.
Barry L. Jewell broke into his estranged wife’s house through a window and beat her lover Chris
Jones in the head with a board until he was unconscious, amputated Jones’s sexual organ with a knife,
and fed the severed organ to the dog. An Indiana appellate court affirmed Jewell’s conviction for
burglary with a deadly weapon along with other offenses. The court found that Jewell had expressed
his intention to “get” Jones. The court noted that “although the fact of breaking and entering is not
itself sufficient to prove that the entry was made with the intent to commit the felony, such intent
may be inferred from the subsequent conduct of the defendant inside the premises.”53
Statutes have adopted various approaches to modifying the common law intent standard.
Pennsylvania requires an intent to commit a crime.54 California broadens the intent to include
any felony or any misdemeanor theft.55 The expansion of the intent standard is justified on the
grounds that an intrusion into the home is threatening to the occupants regardless of whether the
intruder’s intent is to commit a felony or misdemeanor.
Aggravated Burglary
Burglary is typically divided into degrees. Aggravated first-degree burglary statutes generally list
various circumstances as deserving enhanced punishment, including the nighttime burglary of
a dwelling, the possession of a dangerous weapon, or the infliction of injury to others. Second-
degree burglary may include the burglary of a dwelling, store, automobile, truck, or railroad car.
The least serious grade of burglary typically involves entry with the intent to commit a misde-
meanor or nonviolent felony.
Arizona punishes as first-degree burglary the entering of or remaining in a residential or non-
residential structure with the intent to commit a felony or theft while knowingly possessing explo-
sives or a deadly weapon or dangerous instrument. The burglary of a residential structure is a
second-degree burglary, and the least serious form of burglary involves a nonresidential structure
or fenced-in commercial or residential yard.56
Most states also prohibit possession of burglar tools. Idaho punishes as a misdemeanor the pos-
session of a “picklock, crow, key, bit, or other instrument or tool with intent feloniously to break or
enter into any building.” One is guilty of a misdemeanor “who shall . . . knowingly make or alter
any key . . . [to] fit or open the lock of a building, without being requested to do so by some person
having the right to open the same.”57
Burglary is a distinct offense and does not merge into the underlying offense. An individual,
as a result, may be sentenced for both burglary and assault and battery or for both burglary and
larceny. Pennsylvania, however, provides that a burglary merges into the offense “which it was his
intent to commit after the burglarious entry” unless the additional offense was a serious felony.58
Do We Need the Crime of Burglary?

Do we really need burglary statutes? Why not just severely punish a crime committed inside a
dwelling or other building?
The commentary to the MPC points out that punishment for burglary can lead to illogical
results. An individual entering a store with the intent to steal an inexpensive item under some
statutes would be liable for both burglary and shoplifting. On the other hand, an individual who
developed an intent to steal only after having entered the store would only be liable for shoplift-
ing. Does this make sense?
In State v. Stinton, Matthew Allen Stinton violated an order of protection issued by a judge that
prohibited Stinton from harassing his former lover, Tyna McNeill. Stinton nevertheless entered
and attempted to remove his personal property from the home the two formerly shared. He was
held liable for the misdemeanor of violating the order of protection in addition to the felony of
burglary for entering a dwelling with the intent to commit a crime. Stinton unsuccessfully argued
Read Bruce v. that this unfairly transformed his violation of an order of protection into a burglary. Had he con-
Commonwealth, fronted McNeill on the street, Stinton would be held liable only for a misdemeanor. Do you agree
469 S.E.2d 64 with Stinton’s contention?59
(Va. Ct. App.
On the other hand, burglary statutes recognize that there clearly is a difference in the degree
1996), on the
study site: study
of fear, terror, and potential for violence resulting from an assault or theft in the home as opposed
.sagepub.com/ to an assault and theft on the street. Do burglary statutes require reform? Should we return to the
lippmaness2e. common law definition of burglary? The MPC provides a reformed version of the law of burglary.
Model Penal Code

Section 221.1. Burglary
(1) A person is guilty of burglary if he enters a building or occupied structure, or separately
secured or occupied portions thereof, with purpose to commit a crime therein, unless the
premises are at the time open to the public or the actor is licensed or privileged to enter.
It is an affirmative defense to prosecution for burglary that the building or structure was
abandoned.
(2) Burglary is a felony of the second degree (maximum sentence of ten years) if it is perpe-
trated in the dwelling of another at night, or if, in the course of committing the offense,
the actor:
(a) purposely, knowingly or recklessly inflicts or attempts to inflict bodily injury on any-
one; or
(b) is armed with explosives or a deadly weapon.
Otherwise, burglary is a felony of the third degree (a maximum sentence of five years). An
act shall be deemed “in the course of committing” an offense if it occurs in an attempt to
commit the offense or in flight after the attempt or commission.
(3) A person may not be convicted both for burglary and for the offense which it was his
purpose to commit after the burglarious entry or for an attempt to commit that offense,
unless the additional offense constitutes a felony of the first or second degree.
Analysis
•• A burglary is limited to an occupied building or structure. The building or structure need not
be occupied at the precise moment of the burglary; the important point is that the structure
is “normally occupied.” There is no breaking and entering requirement. The MPC does not
punish remaining unlawfully on the premises as burglary.
•• The MPC does not include stores open to the public or motor vehicles or railcars.
•• A burglary may be committed in a separate portion or unit of a building.
•• A burglary involves an intent to commit a “crime” and is not limited to a felony. The bur-
glary is aggravated when perpetrated at night or when it involves the infliction or attempted
infliction of bodily harm or in those instances that the perpetrator is armed with explosives
or a deadly weapon.
•• Most burglaries are punished as felonies in the third degree. The burglary merges into the
completed crime unless the underlying offense is a felony in the second degree (maximum
sentence of ten years) or a serious felony such as rape, violent robbery, or murder (maximum
imprisonment for life).
The Legal Equation

Burglary = Breaking and entering or unlawfully remaining or unlawful entry
+ specific intent to commit a felony or crime
+ inside a dwelling or other structure at night and other aggravating

factors.
You Decide 9.5 Anthony Holt attempted to Stamper reported that the screen was “‘pretty well
remove a window screen from destroyed’” and had to be replaced.
Carolyn Stamper’s home. The win- The defendant claimed that this was not burglary
dow was open roughly four inches, because he did not penetrate the structure of the home.
and the curtains over the window The New Mexico Statute, UJI 14-1410 NMRA, requires the
were drawn other than for a gap of about four inches. jury to find that (1) “[t]he defendant entered [the structure]
Stamper saw Holt at the window as he attempted to remove without permission” and (2) “[t]he entry was obtained by
the aluminum window screen. Holt removed the screen half- breaking or dismantling a part of the structure.” Holt “con-
way from the window and attempted to get the screen free tends that only penetration of an interior protected space,
of the track at the bottom of the window frame. Stamper not the outermost plane of a structure, constitutes an
testified that “while holding the screen, the man’s ‘fingers ‘entry’ for purposes of the breaking-and-entering statute”
were . . . in that area between the window and the screen.’” and that his conviction should be overturned.
Holt, after noticing Stamper, stated, “Oh, I’m sorry,” and Would you convict Holt of breaking and entering
turned and left the premises without opening the window into Stamper’s home? See State v. Holt, 352 P.3d 702
and was convicted of one count of breaking and entering. (NMCA 2015).
TRESPASS
Criminal trespass is the unauthorized entry or remaining on the land or premises of another.
The actus reus is entering or remaining on another person’s property without his or her permission.
An example is disregarding a “no trespassing” sign and climbing over a fence in order to swim at
a private beach. You also may commit a trespass when you swim with the owner’s permission and
then disregard his or her request to leave.
A defiant trespass occurs when an individual knowingly enters or remains on a premises
after receiving a clear notice that he or she is trespassing. Keep in mind that the police, firefighters,
and emergency personnel are privileged to enter any land or premises.
Criminal trespass entails an unauthorized entry, and unlike burglary, there is no requirement
that the intruder intend to commit a felony. Another important point is that statutes punish a tres-
pass on a broad range of private property. The Texas statute provides that an individual commits
a trespass who “knowingly and unlawfully” enters or remains in the dwelling “of another” as well
as in a motor vehicle, hotel, motel, condominium, or apartment building or on agricultural land.
The federal and many state governments also have special statutes that punish trespass in schools,
military facilities, and medical facilities.
A recent development in the law of trespass is the felony of computer trespassing. New York’s
law punishes an individual who “intentionally and without authorization” accesses a computer,
computer system, or network with the intent to delete, damage, destroy, or disrupt a computer,
computer system, or computer network.
Model Penal Code

Section 221.2. Criminal Trespass
(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he
enters or surreptitiously remains in any building or occupied structure, or separately
secured or occupied portion thereof. An offense under this Subsection is a misdemeanor
if it is committed in a dwelling at night. Otherwise it is a petty misdemeanor.
(2) A person commits an offense if, knowing that he is not licensed or privileged to do so, he
enters or remains in any place as to which notice against trespasser is given by:
(a) actual communication to the actor; or
(b) posting in a manner prescribed by law or reasonably likely to come to the attention of
intruders; or
(c) fencing or other enclosure manifestly designed to exclude intruders.
An offense under this Subsection constitutes a petty misdemeanor if the offender defies
an order to leave personally communicated to him by the owner of the premises or other
authorized person. Otherwise it is a violation (punishable by fine).
(3) It is an affirmative defense to prosecution under this Section that:
(a) a building or occupied structure involved in an offense under Subsection (1) was aban-
doned; or
(b) the premises were at the time open to members of the public and the actor complied
with all lawful conditions imposed on access to or remaining in the premises; or
(c) the actor reasonably believed that the owner of the premises or other persons empow-
ered to license access thereto, would have licensed him to enter or remain.
Analysis
•• An accused is guilty of trespass and a petty misdemeanor in the event that the accused
knows that he or she lacks permission to enter and nevertheless enters or surreptitiously
(hiding) remains in any building or occupied structure. This is a misdemeanor if committed
in a dwelling at night and is a petty misdemeanor if committed during the daytime.
•• It is a violation (fine) to enter any other “place” without authorization in which a notice
against trespass is posted or in which a prohibition against trespass is clear from the enclo-
sure surrounding the area. This is a petty misdemeanor where the trespasser defies an order
personally communicated to him.
•• The code requires knowledge of trespass. An individual who accidentally enters on property
or mistakenly believes that he or she possesses authorization to enter or remain upon prop-
erty is not guilty of a trespass.
•• There are three affirmative defenses to trespass.
The Legal Equation

Criminal trespass = ntry or remaining on the property of another without
E
authorization
+ purposely, knowingly, or strict liability.

ARSON
Common law arson is defined as the willful and malicious burning of the dwelling house of
another. The purpose is to protect the home along with the occupants and their possessions.
Common law arson has been substantially modified by state statutes.
Burning
The common law requires a burning. This is commonly defined as the “consuming of the
material” of the house or the “burning of any part of the house.” The burning is not required to
destroy the structure or seriously damage the home. The burning is required to affect only a small
portion of the dwelling, no matter how insignificant or difficult to detect. Even a small “spot” on
the floor is sufficient.
The burning need not involve an actual flame and need merely result in a “charring” of the
structure. This does not include “soot,” “smudging,” “blackening or discoloration or shriveling
from heat,” or “smoke damage.” The common law did not consider an explosion as arson unless
the combustion resulted in a fire.
The trend is for state statutes and courts to broadly interpret arson statutes and to find that
smoke damage and soot are sufficient for arson.60 Some statutes punish the setting of a fire without
regard to damage to property. A New Jersey statute defines third-degree arson without requiring
damage and provides that an individual commits arson when he or she “purposely starts a fire
and recklessly places a person in danger of death or bodily injury or recklessly places a building or
structure in danger of damage or destruction.”61 The Florida statute and other state laws include
explosions that damage dwellings and other protected property under arson.62
Dwelling
Arson at common law must be committed against a dwelling. This is defined by the familiar
formula as a place regularly used for sleeping. The definition reflects the fact that criminal laws
against arson are designed to protect individuals and their right to the peace and security in the
home. The occupants may be absent at the time of the arson, so long as the structure is regularly
used for sleep. The definition of dwelling extends to all structures within the curtilage, the area
immediately surrounding the home. This includes a barn, garage, or tool shed.
Statutes no longer limit arson to a dwelling. Illinois, in addition to prohibiting residential
arson, punishes damage to real property (buildings and land) and to personal property (e.g., per-
sonal belongings). Aggravated arson is directed against injury to individuals resulting from the
arson of “any building or structure, including any adjacent building . . . including . . . a house
trailer, watercraft, motor vehicle or railroad car.” Statutes that include personal property extend
arson to the burning of furniture in a house regardless of whether the fire damages the dwelling.63
Dwelling of Another
The common law required that the burned dwelling was occupied by another individual. As with
burglary, the central issue is occupancy rather than ownership. A tenant would not be guilty of
arson for burning his or her rented apartment that is owned by the landlord; the landlord would
be guilty of arson for burning the house that he or she owns and rents to the tenant. A husband
would not be guilty of arson for burning the home he shares with his wife.
Modern statutes have eliminated the requirement that the arson must be directed at the
dwelling “of another.” Florida holds an individual liable for arson in the first degree “whether the
property [is] of himself or herself or another.”64 Courts have reasoned that a fire poses a threat to
firefighters, as well as to the neighbors, and have held that it is not an unreasonable limitation
on property rights to hold a defendant liable for burning his or her own property. Do you agree?
Willful and Malicious

The mens rea of common law arson is malice. This does not require dislike or hatred. Malice in
arson entails either a purpose to burn or a knowledge that the structure would burn or the creation
of an obvious fire hazard that, without justification or excuse, damages a dwelling. An “obvious
fire hazard” is created when an individual recklessly burns a large pile of dry leaves on a windy day
and in the process creates an unreasonable hazard that burns a neighbor’s house. A negligent or
involuntary burning does not satisfy the requirement for common law arson.
State statutes typically retain the common law intent standard and include language such as “will-
fully and maliciously.” Separate statutes often punish a reckless burning. A number of states also pun-
ish a burning committed by an individual with the specific intent to defraud an insurance company.
Grading
State statutes are typically divided into arson and aggravated arson. Some states provide for addi-
tional categories. Washington provides for knowing and malicious arson and aggravated arson,
as well as for reckless burning. The Washington statute categorizes arson as aggravated based on
various factors, including causing a fire or explosion that damages a dwelling or that is danger-
ous to human life. Aggravated arson also includes causing a fire or explosion on property valued
at $10,000 or more with the intent to collect insurance.65 Washington state punishes aggravated
arson by life imprisonment, along with a possible fine of up to $50,000, while arson is punishable
by ten years, by a fine of up to $20,000, or by both confinement and a fine.66 California enhances
the punishment of “willful and malicious” burning and of “reckless” burning when the perpetrator
has been previously convicted of either offense, a police officer or firefighter is injured, more than
one victim suffers great bodily injury, multiple structures are burned, or the defendant employed
a device designed to accelerate the fire.67
Model Penal Code

Section 220.1. Arson and Related Offenses
(1) Arson. A person is guilty of arson, a felony of the second degree, if he starts a fire or causes
an explosion with the purpose of:
(a) destroying a building or occupied structure of another; or
(b) destroying or damaging any property, whether his own or another’s, to collect insur-
ance for such loss. It shall be an affirmative defense . . . that the actor’s conduct did not
recklessly endanger any building or occupied structure of another or place any other
person in danger of death or bodily injury.
(2) Reckless Burning or Exploding. A person commits a felony of the third degree if he pur-
posely starts a fire or causes an explosion whether on his own property or another’s, and
thereby recklessly:
(a) places another person in danger of death or bodily injury; or
(b) places a building or occupied structure of another in danger of damage or destruction.
(3) Failure to Control or Report Dangerous Fire. A person who knows that a fire is endanger-
ing a life or a substantial amount of property of another and fails to take reasonable mea-
sures to put out or control the fire, when he can do so without substantial risk to himself,
or to give a prompt fire alarm, commits a misdemeanor if:
(a) he knows that he is under an official, contractual, or other legal duty to prevent or
combat the fire;
(b) the fire was started . . . lawfully, by him or with his assent, or on property in his custody
or control.
(4) Definitions. “Occupied structure” means any structure, vehicle or place adapted for over-
night accommodation of persons, or for carrying on business therein, whether or not a
person is actually present. Property is that of another, for the purposes of this section, if
anyone other than the actor has a possessory or proprietary interest therein. If a building
or structure is divided into separately occupied units, any unit not occupied by the actor
is an occupied structure of another.
Analysis
•• MPC Section 220.1(1)(a) defines arson in terms of starting a fire or causing an explosion with
the purpose of destroying a building or occupied structure of another.
•• Directing punishment at individuals who start or cause a fire or explosion results in their
being held liable for arson despite the fact that the fire is extinguished before damage results.
•• Arson is punishable by a maximum of ten years in prison under the MPC. This would be in
addition to punishment for any resulting injury to individuals.
•• The requirement of a purpose to destroy a building or occupied structure or to destroy or
damage property means that a specific intent is required for arson.
•• The commentary states that the terms building and occupied structure are intended to refer to
structures that are capable of occupancy. This restricts arson to fires or explosions dangerous
to the life of inhabitants and firefighters. An individual need not be actually present in the
dwelling.
•• Arson to defraud in Section 220.1(1)(b) includes property owned by the defendant as well
as another. There must be an intent to defraud an insurance company, and this provision
includes all types of property.
•• An individual is not liable for arson where the property of another or other persons is not
endangered. This is designed to avoid the harsh penalties for arson when another person or
his or her property is not recklessly endangered.
•• Reckless burning or exploding is punishable by five years in prison. There is no requirement
of a purpose to destroy a structure.
•• The duty to undertake affirmative action to prevent and control fires is imposed.
The Legal Equation

Arson = etting fire to a dwelling (other structures under state statutes) or
S
structures in cartilage
+ intent to burn, knowing will burn, or reckless creation of risk of burning Read People
v. Fox on the
+ burning of dwelling (smoke damage is sufficient under state statutes).

study site: study
.sagepub.com/
lippmanness2e.
CRIMINAL MISCHIEF
The common law misdemeanor of malicious mischief is defined as the destruction of, or damage
to, the personal property (physical belongings) of another. The MPC refers to this offense as crim-
inal mischief, and under modern statutes, criminal mischief includes damage to both personal
and real (land and structures) tangible property (physical property as opposed to ownership of
intangible property, such as ownership of a song or the movie rights to a book). The offense is
directed against interference with the property of another and punishes injury and destruction to
an individual home or personal possessions.
Malicious mischief under most statutes is a minor felony, and the punishment is reduced or
increased based on the dollar amount of the damage. A sentence may also be increased when the
damage is directed against a residence or interferes with the delivery of essential services, such as
phone, water, or utilities.
Actus Reus
The MPC specifies that criminal mischief is composed of three types of acts:
1. Destruction or Damage to Tangible Property. Injury to property, including damage by a fire,

explosion, flood, or other harmful force.
2. Tampering With Tangible Property So as to Endanger a Person or Property. Interference with prop-
erty that creates a danger—for example, the removal of a stop sign or one-way road sign.
3. Deception or Threat Causing Financial Loss. A trick that dupes an individual into spending
money. An example is sending a telegram falsely informing an individual that his or her
mother is dying in a distant city, causing the individual to spend several hundred dollars
on an unnecessary plane flight.
Mens Rea
The MPC requires that these acts be committed purposely or recklessly. Damage to property by
“catastrophic means,” such as an explosion or flood, may be committed negligently. The punish-
ment of criminal mischief under the MPC is based on the monetary damage of the harm. Keep in
mind that property damage resulting from a fire or explosion that purposely endangers the person
or property of another may be punished as arson.
The Legal Equation

Criminal mischief = estruction or damage or tampering with tangible property or
D
deception or threat causing financial loss
+ purposely, knowingly, recklessly, or negligently.
You Decide 9.6 Nicholas Y. wrote on a glass (1) Defaces with graffiti or other inscribed
window of a projection booth at an material.
AMC theater with a Sharpie (2) Damages.
marker. After his arrest, appellant
(3) Destroys. . . .
admitted to police that he had writ-
(4) (A) If the amount of defacement, dam-
ten “RTK” on the window. Police saw “approximately 30
age, or destruction is less than four
incidents” in red magic marker throughout the theater,
hundred dollars ($400), vandalism is
including the one on the glass. Appellant said the ini-
punishable by imprisonment in a county
tials stood for “The Right to Crime.”
jail for not more than six months, or by
At the close of the prosecution’s case, appellant’s
a fine of not more than one thousand
counsel argued that no defacing of or damage to prop-
dollars ($1,000) or by both that fine and
erty had been proved, stating: “It’s a piece of glass
imprisonment. . . .
with a marker on it. You take a rag and wipe it off. End
of case. It’s ridiculous.” The prosecutor countered that (e) As used in this section the term “graffiti or
appellant trespassed and left fresh marks on the win- other inscribed material” includes any unau-
dow, thus defacing the window with graffiti. The court thorized inscription, word, figure, mark, or
found that appellant violated Penal Code Section 594, design that is written, marked, etched,
subdivision (a), a misdemeanor. scratched, drawn, or painted on real or per-
Penal Code Section 594 provides, in relevant part: sonal property.
(a) Every person who maliciously commits any of Should Nicholas Y. be held guilty of vandalizing
the following acts with respect to any real or property belonging to the AMC theater? See People
personal property not his or her own . . . is v. Nicholas Y., 102 Cal. Rptr.2d 511 (Cal. Ct. App.
guilty of vandalism: 2000).


On January 10, 2011, thousands of Auburn University c ollege football rivalries. A grand jury charged Updyke
football fans gathered at historic Toomer’s Corner to with six criminal counts, including two counts of the
celebrate the team’s national college championship. felony of criminal mischief. Updyke’s initial defiance
Toomer’s Corner has been called the Times Square and defense of his actions gradually gave way to a
or center of Auburn University, the site where stu- sense of remorse and regret. He stated that he had
dents, alumni, and fans traditionally have gathered “done a lot of good things” and he did not want to
to mark major football victories. The corner is dotted go to his grave with “Harvey the tree poisoner” as
with historic 130-year-old oak trees, which students his legacy. He stated that as a Texas trooper, he had
roll in toilet paper as a traditional part of their cel- arrested a record number of drunk drivers and that
ebrations. he also had been responsible for a significant num-
On January 28, Auburn officials discovered that ber of drug busts.
an herbicide had been applied in “lethal amounts” to Updyke explained that his entire life people
the area surrounding two trees. The poisoning was had told him that he cared too much about Ala-
discovered following a call to a Birmingham radio bama football and that he “just had too much
station from “Al from Dadeville” who claimed that he ’Bama in me.” He admitted that he was a “very
used “Spike 80DF” to poison the trees and that the unhealthy Alabama fan. . . . I live it, I breathe it.
trees “definitely will die.” “Al” proclaimed that he I think about Alabama football 18 hours a day.”
was a dyed-in-the-wool University of Alabama Crim- Updyke explained that his father had died when
son Tide fan and that he had poisoned the trees fol- he was a youngster and that he had been drawn to
lowing the annual Iron Bowl, in which Auburn scored Alabama’s legendary coach Paul “Bear” Bryant as
28 straight points and overcame what seemed like a father substitute. He named his daughter Crim-
an insurmountable 24-point Alabama lead. Al signed son Tyde and his son Bear and called his dogs
off by exclaiming “Roll Damn Tide.” Bama and Nicky (after Coach Nick Saban). Updyke
Jay Gogue, the president of Auburn, responded owned 46 Alabama hats and had bought out the
to the poisoning by vowing: “We will take every step complete supply of Alabama football championship
we can to save the Toomer’s oaks, which have been shirts at a local store. He planned to be buried in
the home of countless celebrations and a symbol of a crimson casket.
the Auburn spirit for generations of students, fans, Updyke pled guilty to criminal damage to an agri-
alumni, and the community.” cultural facility and was sentenced to six months in
A police investigation led to the arrest of Har- jail, a $1,000 fine, and five years’ probation. During
vey Almorn Updyke, 62, a resident of Dadeville, Ala- his probation, he must adhere to a 7 p.m. curfew
bama, who is a retired Texas State Trooper. Updyke and is banned from college sporting events and may
explained that he believed that Auburn was pay- not enter the confines of Auburn University. He was
ing outstanding athletes “under the table” to play credited with time served and was released after
football and that he was enraged by the gloating of 76 days in jail. Updyke also was ordered to pay
Auburn fans on the radio. He also alleged that he $800,000 in restitution in quarterly payments and
had seen photos of Auburn fans celebrating follow- to perform community service work for the police to
ing the death of beloved Alabama coach Paul “Bear” help pay off the restitution. Auburn has replaced the
Bryant. soil at Toomer’s Corner and expects to see the new
Updyke initially characterized the tree poison- oak trees begin to show significant signs of growth
ing as the type of prank that is a traditional part of in 2016.
CASE ANALYSIS
In Lee v. State, the court decided whether the defendant committed a larceny of two bottles of
cognac in a self-service liquor store.
Was Lee Guilty of Larceny?
Lee v. State, 474 A.2d 537 (Ct. App. Md. 1984)
Appellant, Joe William Lee, Jr. (Lee)[,] was convicted In a self-service store, the owner has[,] in a sense, con-
by the Circuit Court for Baltimore County of two sep- sented to the customer’s custody of the goods for a
arate charges of theft under $300.00 and sentenced limited purpose. . . . [T]he fact that the owner tem-
to the Division of Correction for two consecutive one porarily consents to custody does not preclude a con-
year sentences. viction for larceny if the customer exercises dominion
In the second conviction, however, Lee urges this and control over the property by using or concealing it
Court to decide that his concealment of a bottle of in an unauthorized manner. Such conduct would sat-
liquor in his trousers while shopping in a self-service isfy the element of trespassory taking as it could pro-
liquor store does not constitute evidence sufficient vide the basis for the inference of the intent to deprive
to convict him of theft. Since Lee was accosted with the owner of the property.
the merchandise in the store, abandoned it and then From this perusal of cases, we conclude that sev-
departed from the premises, this case poses a substan- eral factors should be assessed to determine whether
tial question regarding the law of theft which has never the accused intended to deprive the owner of property.
specifically been resolved in this state: May a person First, concealment of goods inconsistent with the store
be convicted of theft for shoplifting in a self-service owner’s rights should be considered. “Concealment”
store if he does not remove the goods from the prem- is conduct which is not generally expected in a
ises of that store? self-service store and may in many cases be deemed
An employee of a pharmacy-liquor store observed “obtaining unauthorized control over the property in
Lee displacing two $16.47 bottles of cognac. Lee con- a manner likely to deprive the owner of the property.”
cealed one of the bottles in his pants and held the Other furtive or unusual behavior on the part of the
other in his hand. When approached by the employee, defendant should also be weighed. For instance, if a
Lee returned both bottles to the shelf and fled the customer suspiciously surveys an area while secreting
store. He was chased by the employee who flagged the merchandise this may evince larcenous behavior.
down a passing police cruiser. Subsequently, Lee was Likewise, if the accused flees the scene upon being
arrested and convicted. For the reasons set forth in our questioned or accosted about the merchandise, as in
discussion, we uphold the theft conviction despite the the instant case, an intent to steal may be inferred.
fact Lee was accused and “returned” the merchandise The customer’s proximity to the store’s exits is also rel-
before he left the store. evant. Additionally, possession by the customer of a
Larceny at common law was defined as the tres- shoplifting device with which to conceal merchandise
passory taking and carrying away of personal prop- would suggest a larcenous intent. One of these factors
erty of another with intent to steal the same. The or any act on the part of the customer which would be
requirement of a trespassory taking made larceny an inconsistent with the owner’s property rights may be
offense against possession. . . . [T]he courts gradually taken into account as relevant in determining whether
broadened the offense by manipulating the concept of there was a larcenous intent.
possession to embrace misappropriation by a person In the instant case, Lee knowingly removed the
who with the consent of the owner already had phys- bottle of liquor from the shelf and secreted it under
ical control over the property. . . . [T]he courts began his clothing. This act in itself meets the requirement
to distinguish “possession” from “custody,” thereby of concealment.
enabling an employer to temporarily entrust his mer- The fact that this concealment was brief or that
chandise to an employee or a customer while still Lee was detected before the goods were removed
retaining “possession” over the goods until a sale was from the owner’s premises is immaterial. The intent
consummated. These distinctions and delineations, to deprive the owner of his property can be inferred
which ultimately laid the foundation for the statutory from his furtive handling of the property. Lee not only
offense of theft as it exists today, provided the courts placed the bottle in the waistband of his pants, but
with the judicial machinery with which to sustain a did so in a particularly suspicious manner by conceal-
larceny conviction when the customer who had right- ing the bottle such that it was hidden from the shop
ful “custody” or “physical possession” converted the owner’s view. It cannot be so as a matter of law that
property to his own use and thereby performed . . . the these circumstances failed to establish the elements of
requisite “trespassory taking.” theft. Once a customer goes beyond the mere removal
The evolution of theft law is particularly rele- of goods from a shelf and crosses the threshold into
vant to thefts occurring in modern self-service stores the realm of behavior inconsistent with the owner’s
where customers are impliedly invited to examine, expectations, the circumstances may be such that a
try on, and carry about the merchandise on display. larcenous intent can be inferred.
CHAPTER SUMMARY
The common law initially punished only the violent of the victim, while extortionate threats may be com-
taking of property. This soon proved insufficient. municated over the phone or in a letter.
Individuals accumulated farm animals, crops, and Crimes against habitation protect individuals’
consumer goods that were easily stolen by stealth interest in safe and secure homes free from uninvited
and under the cover of darkness. Larceny developed intrusions. Burglary and arson are the cornerstones
to protect individuals against the wrongful taking of the criminal law’s protection of dwellings. Modern
and carrying away of their personal property by indi- statutes have significantly expanded the structures
viduals harboring the intent to deprive the owner of protected by burglary and arson.
possession. The economic development of society Burglary at common law was defined as the break-
resulted in clear shortcomings in the coverage of the ing and entering of the dwelling house of another at
law that led to the development of embezzlement, night with the intention to commit a felony. State
false pretenses, and receiving stolen property. statutes have significantly modified the common law
A number of states have consolidated larceny, and differ in their approach to defining the felony of
embezzlement, and false pretenses into a single theft burglary. In general, a breaking no longer is required,
statute. These statutes provide a uniform grading of and burglary has been expanded to include a range
offenses and, in some states, serve to prevent a defen- of structures and vehicles. Statutes provide that a
dant from being acquitted based on the prosecutor’s burglary may involve entering as well as remaining
failure to satisfy the technical factual requirements in a variety of structures with the requisite purpose-
of the property crime with which the defendant is ful intent. The intent standard has been broadened
charged. The grading of larceny, embezzlement, and under various statutes to include “any offense” or a
false pretenses is generally based on the monetary “felony or misdemeanor theft.” Also, burglary is no
value of the property. Modern theft statutes also pro- longer required to be committed at night.
vide protection to all varieties of personal property Criminal trespass is the unauthorized entry
and do not distinguish between tangible (physical or remaining on the land or premises of another.
objects) and intangible (legal documents) personal Trespass is distinguished from burglary in that it does
property. As noted, various states also extend protec- not require an intent to commit a felony or other
tion to real property (real estate). offense and extends to property beyond the curtilage,
Forgery involves the creation of a false legal including agricultural land. Statutes provide that a
document or the material modification of an exist- trespass may be committed knowingly or purpose-
ing legal document with the intent to deceive or fully, and Missouri defines trespass as a strict liability
to defraud others. The crime of forgery is complete offense.
upon the drafting and modification of the docu- Arson at common law is defined as the willful
ment with the intent to defraud others, regardless of and malicious burning of the dwelling house of
whether the document is actually used to commit a another. This is treated as a felony based on the dan-
fraud. Uttering is the separate offense of circulating ger posed to inhabitants and neighbors. Statutes no
or using a forged document. longer require a burning; even smoke damage or soot
Robbery is a crime that threatens both the prop- is sufficient. Arson also extends to a broad range of
erty and the safety and security of the individual. It structures and is no longer limited to the dwelling
involves the taking of personal property from the vic- of another. Arson requires either a purpose to burn
tim’s person or presence through violence or intimi- or knowledge that a structure will burn. It may also
dation. The grading of robbery depends on the harm be committed recklessly by creating an unreasonable
inflicted or threatened. Carjacking is an increasingly hazard on an individual’s own property that burns a
prevalent offense that involves the use of force to neighbor’s dwelling.
unlawfully gain control and possession over a motor Criminal mischief under modern statutes pun-
vehicle. ishes the damage, destruction, or tampering with
Robbery involves a threat of immediate violence, personal and real tangible property or may involve
and extortion is distinguished from robbery by the a deception causing financial loss. Criminal mischief
fact it entails a threat of future violence or other is generally punished as a misdemeanor and may be
harms. Robbery must be committed in the presence committed purposefully or recklessly.
1. Provide an example of how the common law of 9. Distinguish extortion from robbery.
larceny developed in response to the growth of
10. What is the definition of burglary? How have the
business and commerce.
elements of the common law crime of burglary
2. Distinguish between the requirements of larceny, been modified by modern statutes?
embezzlement, and false pretenses.
11. What is the difference between burglary and
3. Why did various states adopt consolidated theft trespass?
statutes?
12. Define arson. How have modern statutes modi-
4. What is a prosecutor required to prove beyond a fied the common law crime of arson?
reasonable doubt in order to establish the crime of
13. What are the three types of acts that satisfy the
receiving stolen property? How does the punish-
actus reus of criminal mischief?
ment of this offense deter theft?
14. Compare and contrast arson and criminal
5. What is the difference between forgery and
mischief.
uttering?
15. What are some factors that aggravate burglary,
6. How does robbery differ from larceny?
arson, trespass, and criminal mischief?
7. Discuss the use or threat of harm requirement in
16. Discuss the justifications for crimes against habi-
regard to robbery.
tation. Is it accurate to continue to categorize bur-
8. Distinguish robbery from the elements of glary and arson as crimes against habitation?
carjacking.
LEGAL TERMINOLOGY
arson embezzlement petit larceny

blackmail extortion possession
burglary false pretenses receiving stolen property
carjacking forgery robbery
criminal mischief grand larceny simulation
criminal trespass intangible property tangible property
custody larceny theft statutes
defiant trespass larceny by trick uttering

WHITE- COLL AR AND
10 ORGANIZED CRIME
Did Reverend Davis engage in money

3. List the types of acts prohibited by environmen-
laundering? tal statutes.
Reverend Davis became the preacher at the 15th Street 4. Know the purpose of the Occupational Safety
Baptist Church in the mid-1980s. Shortly thereafter he and Health Act.
began to sell drugs, and by mid-1987 was actively sell-
ing crack from two houses. . . . Davis deposited some of 5. Understand securities fraud and insider
the cash he collected from the houses in bank accounts trading.
maintained in the names of the 15th Street Baptist
6. Know the elements of mail fraud and wire
Church Development Corporation . . . and the 15th Street
Baptist Church . . . at Illini Federal, a local savings and fraud.
loan. . . . Davis could write checks on these accounts. 7. Explain the Travel Act.
Some of these checks were made out to cash, which
Davis diverted to his personal use. Others were made out 8. Outline the type of acts involved in health care
to local vendors who provided services such as beepers fraud.
and mobile telephones. Still others were made out to
the landlord who owned the Swansea, Illinois, residence 9. Understand the purpose of the Sherman
where Davis lived. Davis also purchased numerous cars, Antitrust Act.
spending over $79,000 on a variety of vehicles for per- 10. Explain money laundering.
sonal and church use. (United States v. Jackson, 935 F.2d
832 [7th Cir. 1991]) 11. Understand access device fraud.
In this chapter, learn about money laundering. 12. Explain the elements of identity theft.
13. Know the basic elements of currency violations
and tax crimes.
Learning Objectives 14. List the various types of computer crime.
15. Explain the purpose of the criminal law in pro-
1. Know the different approaches to defining
tecting intellectual property, trademarks, and
white-collar crime.
trade secrets.
2. Recite the argument for and against holding
16. Know the purpose of RICO and the types of
corporations criminally liable.
acts prohibited under RICO.
243
INTRODUCTION
In 1949, sociologist Edwin H. Sutherland published his pioneering study, White Collar Crime.
This volume called attention to the largely overlooked criminal behavior of business managers,
executives, and professional groups, which Sutherland labeled white-collar crime. Sutherland
defined white-collar crime as an offense committed by a “person of respectability and high
social status in the course of his [or her] occupation.” This definition stresses the social back-
ground of offenders and focuses on nonviolent offenses committed in the course of employment.
Sutherland’s central thesis is that theories that explain crime based on poverty, low social class,
and lack of education fail to account for “crimes in the suites.” The focus on the poor and dis-
enfranchised diverts our attention from the fact that the financial cost of white-collar crime is
several times greater than the economic consequences of common crimes. A second point raised
by Sutherland is that despite the social harm caused by the crimes of the powerful, these offenses
are typically punished by fines and less severe penalties than the offenses committed by average
individuals.1
The U.S. Justice Department’s definition of white-collar crime focuses on the nature of the
criminal activity as well as on the job of the offender. This definition also does not limit white-
collar crime to employment-related offenses. White-collar crime is defined as follows:
•• Illegal acts that employ deceit and concealment rather than the application of force
•• to obtain money, property, or service;
•• to avoid the payment or loss of money; or
•• to secure a business or professional advantage.
•• White-collar criminals occupy positions of responsibility and trust in government, industry,
the professions, and civil organizations.
A third approach defines white-collar crime in terms of the type of criminal activity involved.
This has the advantage of drawing attention to the fact that tax and consumer fraud and other
offenses characteristic of white-collar crime are committed by individuals of various socioeco-
nomic backgrounds.
You might want to review our previous discussions of property offenses, a number of which
may be committed by corporate criminals in the course of carrying out fraudulent schemes. These
include larceny, false pretenses, and embezzlement.
The focus of the present chapter differs from our previous discussions in that most white-
collar crime prosecutions are brought by the U.S. government rather than by state and local
officials. You may recall that we discussed the division between federal and state powers in
Chapter 1. In this chapter, we primarily examine the federal statutes that most frequently are used
to combat white-collar crime, which include the following:
•• Environmental Crimes. Offenses harming and polluting the environment.

•• Occupational Safety and Health. Injury and harm to workers.
•• Securities Fraud. Manipulation of stocks and bonds.
•• Mail and Wire Fraud. The use of the mail and telephone to commit a fraud.
•• The Travel Act. Committing certain offenses through the use of interstate travel or the mail.
•• Health Fraud. Obtaining reimbursement or payment for unwarranted and undelivered med-
ical treatments.
•• Antitrust Violations. Interference with the competitive marketplace.
•• Identity Theft. The fraudulent use of another individual’s credit card or other financial infor-
mation to purchase items or to obtain employment or other economic goods. A related
crime is access device fraud involving the theft of a personal identification number (PIN) or
other identifying information used to access money.
•• Money Laundering. Transactions involving money derived from illegal activities.
•• Currency Violations. The transfer of money in the banking system without completing the
required paperwork.
•• Computer Crimes. The use of a computer to engage in a variety of criminal activity.
CHAPTER 10 White-Collar and Organized Crime 245
•• Tax Crimes. The intentional failure to report income to the Internal Revenue Service (IRS)
or the knowing claim of a higher deduction than an individual is entitled to under the law.
•• Theft of Intellectual Property, Trademarks, and Trade Secrets. The unauthorized use of the intel-
lectual product developed by other individuals or businesses.
White-collar crime offenses are often committed in the regular course of business in an effort
to make or save money. These offenses generally involve a betrayal of the trust that we place
in business and government. Let me caution that this chapter cannot cover the entire field of
white-collar crime.
Despite the fact that white-collar crime is one of the most active areas of federal prosecution,
textbooks generally do not devote significant attention to the subject. This is partially based on
the belief that white-collar crime is not a distinct category of crime. It is argued that there is little
difference between the theft of money by a corporate executive and the theft of money by a wait-
ress or the theft of tools by a construction worker. As you read this chapter, consider whether the
concept of white-collar crime is useful. Should we pay special attention to “crimes in the suites”?
Do you believe that the government should devote additional resources to the prosecution and
punishment of corporate misconduct? Another question concerns the appropriate form of punish-
ment for white-collar offenders. Should respectable business executives be punished like any other
criminals?
CORPORATE CRIMINAL LIABILITY

The early common law adopted the logical position that corporations are not living and breathing
human beings and therefore cannot be held criminally liable. There was no doctrine of corporate
liability, prosecution, and punishment. Prosecution and punishment were limited to corporate
officers and employees. Over time, corporations were subject to fines for failing to maintain the
repair of public works such as roads and bridges. The increasing power and prominence of large-
scale business enterprises resulted in the gradual growth of the idea of corporate criminal liabil-
ity and the punishment of corporations through the imposition of financial penalties. The U.S.
Supreme Court noted in 1909 that acts of an employee “may be controlled in the interests of
public policy, by imputing his act to his employer and imposing penalties upon the corporation
for which he is acting.”2
The U.S. Supreme Court, in United States v. Dotterweich, affirmed in 1943 that corporations,
along with corporate executives and employees, could be held criminally liable under the Federal
Food and Drugs Act. The Court stressed that holding the president of the corporation and the
corporation vicariously liable for the strict liability crimes of employees was intended to ensure
that company executives and managers closely monitor the distribution of potentially dangerous
drugs to the public.3 In United States v. Park, the Supreme Court upheld the conviction of a large
national food store chain, along with the president of the company, for shipping adulterated food
in interstate commerce.4
Keep in mind that a corporate crime may result in the criminal conviction of the employee
committing the offense as well as the extension of vicarious liability to the owner and the corpo-
ration. There is nothing mysterious about a corporation. It is a method of organizing a business
that provides certain financial benefits in return for complying with various state regulations.
Most small corporations typically are run by an owner or by several partners, although moderately
sized and larger corporations may be organized with boards of directors and outside investors or
shareholders. The corporation possesses a life of its own separate and apart from all the executives,
managers, and employees and is considered a “person” under the law.
The first step in determining whether a corporation may be criminally liable is to examine
whether the legislature intends the criminal statute to apply to corporations. In United States v.
Dotterweich, the U.S. Supreme Court affirmed the conviction of the defendant and corporation
under the Federal Food, Drug, and Cosmetic (FD&C) Act for introducing an “adulterated or mis-
branded” drug into interstate commerce. The Court stressed that “a person” under the act was
defined to include corporations. Courts have ruled in other instances that the term person was
limited to “natural persons” and did not include “corporate persons.”5
Once it is determined that a statute encompasses corporations, there are two primary tests for
determining whether a corporation should be criminally liable under the statute:
1. Respondeat Superior or the Responsibility of a Superior. A corporation may be held liable for
the conduct of an employee who commits a crime within the scope of his or her employ-
ment who possesses the intent to benefit the corporation.
2. Model Penal Code (MPC) Section 2.07. Criminal liability is imposed in those instances that
the criminal conduct is authorized, requested, commanded, performed, or recklessly tol-
erated by the board of directors or by a high managerial official acting on behalf of the
corporation within the scope of his or her office or employment.
Respondeat superior extends vicarious criminal liability to a corporation for the acts of employ-
ees, even when such acts are contrary to corporate policy. It may seem unfair to impose liability
on a corporation for the independent criminal acts of an employee that may be unknown to com-
pany officials, such as Mitchell, a service station employee who misbranded low-quality motor oil
and sold it to motorists while representing that it was high-quality motor oil. On the other hand,
Mitchell’s sale of misbranded motor oil increased the company’s profits and should have been
prevented by his employer.6 The MPC test limits vicarious liability to acts approved or tolerated
by high-level corporate officials. Managers, corporate boards, and corporate entities under this
approach are liable only for acts that they direct or tolerate. Under this test, decision makers may
not possess an incentive to closely monitor employees to ensure that they are not engaging in acts
that have not been approved by management. A corporation, for instance, would not be convicted
for Mitchell’s independent decision to misrepresent the quality of motor oil sold to consumers.
Which test do you favor?
In the past several years there has been an increasing trend toward holding corporations crim-
inally liable. The aim is to encourage corporate executives to vigorously prevent and punish illegal
activity. Executives know that a criminal conviction may lead to a decline in consumer sales and
investment in the firm as well as to criminal fines, and they have a powerful incentive to ensure
that the corporation acts in a legal fashion. The prevention of corporate misconduct is important,
because we depend on large firms to provide safe and secure health care, transportation, food, and
products in the home. Holding a corporation vicariously liable also makes good sense because
business decisions often involve a large number of individuals, and it often is difficult to single out
a specific individual or individuals as responsible for designing, manufacturing, marketing, and
delivering a defective drug or automobile.7
On the other hand, it seems unfair to hold a corporation strictly liable and to impose a heavy
fine for crimes that may have been committed by low-level employees or managers or secretly
approved by a high-level corporate executive. A criminal fine against a corporation is merely paid
out of the corporate treasury, and the threat of a financial penalty may not encourage corporate
officials to monitor the activities of employees. A fine may also be passed on to consumers, who
will be charged a higher price. In the final analysis, the profits to be gained from misrepresenting
the effectiveness of a drug may far outweigh any fine that may be imposed. Critics of corporate
liability argue that it makes more sense to limit criminal liability to the individuals who committed
the offense.8
Are there penalties other than fines that might be used against corporations? One federal dis-
trict court imposed a three-year prison sentence on a corporation that was later suspended. The
court observed that this could be carried out by ordering the U.S. marshal to seize corporate assets
such as computers, machinery, and trucks. This type of punishment has the advantage of com-
pletely shutting down a business. On the other hand, it would likely result in innocent individuals
losing their jobs.9
In Commonwealth v. Penn Valley Resorts, Inc., the resort and owner were convicted of invol-
untary manslaughter. The resort was fined $10,000. A Pennsylvania statute, Section 307(a)(2),
provides that a corporation may be convicted of an offense “authorized, requested, commanded,
performed or recklessly tolerated by the board of directors or by a high managerial agent acting in
behalf of the corporation within the scope of employment.” The court held that the resort owner
qualified as a “high managerial agent” under the statute and that the law did not limit the vicari-
ous responsibility of corporations to strict liability health, safety, and welfare offenses.10
In Penn Valley, Edwin Clancy, the president of the resort, permitted a group of underage stu-
dents to engage in a drinking binge at the resort. William Frazer, a twenty-year-old, drank exces-
sively for five or six hours. Clancy personally served alcohol to Frazer. He seized and later handed
Frazer back the keys to Frazer’s automobile and encouraged the drunk and hostile student to leave
the resort. Frazer was subsequently killed when his car drove off the road and hit a bridge. He was
found to possess a blood alcohol content of .23. The Supreme Court of Pennsylvania concluded
that the resort, “through its managerial agent, committed involuntary manslaughter and reckless
endangerment.” How can a corporation act with gross disregard for the safety of customers? On
the other hand, Clancy was president, and his acts legally obligated and financially benefited the
corporation.
In 2012, the British bank HSBC agreed to pay the government more than $1.9 million in fines
because of the bank’s involvement in assisting drug cartels and terrorist groups in transferring
money into the United States.
The U.S. Department of Justice (DOJ) in the past few years came under increasing criticism for
reaching “deferred prosecution” agreements with corporations. In the agreement, the corporation
agrees to institute reforms to prevent additional criminal conduct and to pay a fine, and in return,
the DOJ agrees not to pursue a criminal prosecution against the corporation so long as the corpo-
ration satisfies the terms of the agreement. In 2015, Attorney General Loretta Lynch announced
that the DOJ would focus on prosecuting and punishing individual corporate criminals rather than
prosecuting large corporations. This change was based on the fact that crimes are committed by
“flesh and blood” human beings.

Should a corporation be held liable for murder? In particular prosecution), to one felony count of crimi-
1980, the Ford Motor Company was prosecuted for nally negligent homicide and six misdemeanor counts
reckless homicide stemming from the 1978 death of assault in the third degree. This plea arose out of
of three Indiana teenagers. The three were burned to a July 2001 explosion and fire at a company factory
death when their 1972 Ford Pinto was hit from behind that resulted in the death of one employee and injury
by a van. Prosecutors charged that Ford was aware to six others. Prosecutors alleged that Motiva, a joint
that the Pinto’s gasoline tanks were in danger of catch- venture between Saudi Aramco and Royal Dutch Shell,
ing fire when impacted by a rear-end collision. Ford ignored warnings and continued to operate the plant
was alleged to have decided that fixing the problem or in order to maximize profits. The company’s convic-
recalling the Pinto would deeply cut into profits and that tion resulted in a fine of $11,500 on the homicide
it would be less expensive to pay any damage awards charge and $5,750 for each of the assault charges
that might result from civil suits filed by consumers. By for a total of $46,000, the maximum then permitted
1977, the Pinto no longer was able to meet tough fed- under Delaware law.
eral safety standards, and in late 1978, Ford recalled In 2005, Far West Water & Sewer Inc. was con-
1.5 million 1971–1976 Pinto sedans. Unfortunately, victed of the murder of two workers who died from
this recall was not issued in time to save the lives of exposure to toxic chemicals while working on an under-
the three teenagers. ground sewer tank. The company was fined $1.7 mil-
In 1999, a Florida jury found airline maintenance lion and required to pay restitution to the families of
company SabreTech guilty of contributing to the 1996 the dead workers.
crash of ValuJet Flight 593, an accident that resulted in In 2015, General Motors reached a deferred pros-
the death of 110 passengers. The company allegedly ecution agreement with the Department of Justice and
had been responsible for placing prohibited hazardous agreed to pay a $900 million penalty. General Motors
materials on the ValuJet aircraft that exploded during admitted to knowing about a defective ignition switch,
flight. SabreTech was convicted on eight counts of mis- which reportedly was responsible for the death of 124
handling hazardous materials and one count of failing individuals. General Motors stated that it knew as early
to properly train employees. as 2004 that many of its vehicles contained defective
In 2003, Motiva Enterprises pled “no contest,” ignition switches and that it was aware by 2012 that
or nolo contendere (a guilty plea for purposes of a the defective switches could cause airbags to fail.
(Continued)
(Continued)
Despite this awareness, General Motors did not recall any of its high managerial agents possess the requisite
2.6 million affected vehicles for nearly two years. mental state and is responsible for a criminal offense
These cases illustrate that a corporation may while acting within the scope of its employment.”
be held liable for corporate murder in those cases A corporation clearly cannot be incarcerated and,
in which conduct is performed or approved by cor- instead, is punished by the imposition of a fine. It is
porate managers or officials. Of course, individual reasoned that the threat of a fine will motivate corpo-
managers and executives may also be held criminally rate officials and individuals owning stock in the firm
responsible. The extension of criminal responsibility to ensure that the corporation follows the law. On the
to corporations is based on an interpretation of the other hand, some would argue that criminal responsi-
term person in homicide statutes to encompass both bility is properly limited to the individuals who commit
natural persons and corporate entities. Other states the crimes. A fine on a business hurts only the work-
have homicide statutes that extend liability for murder ers and stockholders who depend on strong corporate
to corporations. In Illinois, a corporation is criminally profits and creates a poor business climate that leads
responsible for offenses “authorized, requested, com- corporations to move their factories to other countries.
manded, or performed by the board of directors or by Ask yourself whether it serves any purpose to hold
a high managerial agent acting within the scope of his the corporation liable or whether responsibility should
employment.” A corporation “is responsible whenever be limited to corporate officials.
ENVIRONMENTAL CRIMES
At times, the drive for corporate profit may lead business executives to disregard their legal obliga-
tion to protect the natural environment. There are considerable costs involved in environmental
safety and clean-up that can absorb a significant percentage of corporate revenues. The FBI notes
that environmental crimes threaten the health and natural resources of the United States and
that such crimes range from air and water pollution to the illegal transportation and disposal of
hazardous waste.
Americans were exposed to the potential danger that illegal business practices pose to the envi-
ronment when a public health emergency was declared at Love Canal in Niagara Falls, New York.
In 1978, a local paper reported that in 1953, Hooker Electrochemical Company had buried more
than twenty-one thousand tons of toxic waste on land that the company and city government
knew was now the site of a housing development and school. Studies revealed that women living
nearby experienced an excessive rate of miscarriages and that children suffered high rates of birth
defects and disorders of the nervous system. The state and federal government ultimately evacu-
ated the area at a cost of over $42 million, and the area would not be reclaimed for housing until
1990. A second well-known case in Woburn, Massachusetts, in 1979, involved the pollution of
the water supply by industrial waste. The industrial firms responsible for the pollution ultimately
agreed to a clean-up that cost more than $70 million.
In 1980, Pennsylvania authorities discovered that Hudson Oil Refining Corporation of New
Jersey had been dumping waste down an old mine shaft. The waste accumulated and, in July
1979, began pouring out of the mine tunnel into the Susquehanna River. Millions of gallons of
toxic waste linked to cancer and birth defects formed an oil slick that threatened the water supply
of Danville, Pennsylvania. The company was fined $750,000, and the president of Hudson Oil,
the first corporate official imprisoned for illegal environmental dumping in U.S. history, was sen-
tenced to one year in prison. In the mid-1980s, Pennsylvania convicted a corporate executive of
illegally dumping ten thousand drums of waste in a Scranton, Pennsylvania, landfill.
In 1989, Rockwell International, a company that had managed the Rocky Flats nuclear weap-
ons plant since 1975, pled guilty to ten federal counts and paid $18.5 million in fines stemming
from its mismanagement of the 6,500-acre site fifteen miles northwest of Denver, Colorado. The
plant was described as being littered with over 12.9 metric tons of dangerous plutonium, asbestos,
lead, and other toxic chemicals.
On March 24, 1989, the oil tanker Exxon Valdez ran aground in Alaska, spilling eleven million
gallons of oil into Prince William Sound and polluting roughly 1,300 miles of Alaskan shoreline.
Exxon agreed to pay a $150 million criminal fine. In 2008, the U.S. Supreme Court reduced the
civil monetary judgment imposed on Exxon by a jury. The Court did affirm the jury’s judgment
that Exxon was responsible for the actions of the ship’s captain, finding that the jury could have
reasonably concluded that Exxon “knowingly allowed a relapsed alcoholic repeatedly to pilot a
vessel filled with millions of gallons of oil” and that “it was only a matter of time before a crash or
spill . . . occurred.”
Today, the increased concern with environmental crimes has led the federal and various state
governments to establish special prosecution units. The federal government now highlights the
seriousness of these offenses through an annual National Environmental Crime Prevention and
Education Week. The national dedication to combating environmental crime is illustrated by a
recent federal case in which DOJ prosecutors obtained the conviction of two individuals for vio-
lating the Clean Air Act and the Toxic Substances Control Act. This resulted in the longest federal
jail sentences for environmental crimes in history. Alexander Salvagno received twenty-five years
in prison and was ordered to forfeit more than $2 million in illegal proceeds and to provide more
than $23 million in restitution to the victims. His father, Raul Salvagno, was sentenced to nineteen
years in prison and was required to forfeit close to $2 million in illegal proceeds and to pay more
than $22 million in restitution. The two falsely represented to clients that they had completely
removed dangerous toxic asbestos from homes and schools and directed their young workers to
enter into asbestos “hot zones” without adequate protection, exposing more than five hundred of
their employees to the risk of cancer.
In 2012, BP agreed to plead guilty to fourteen criminal counts and to pay $4.5 billion in fines
stemming from the explosion of the Deepwater Horizon oil rig, which resulted in the death of
eleven workers and created a giant oil spill in the Gulf of Mexico. Two BP supervisors were indicted
for manslaughter, and a BP official was indicted for obstructing a congressional investigation.
In 2016, criminal charges were filed against two state officials and a city employee involved in
the contamination of the drinking water supply in Flint, Michigan, with lead.
The FBI reports that at any given time, there are roughly 450 environmental criminal cases
pending, roughly half of which involve violations of the Clean Water Act. Roughly 25 percent of
white-collar crime prosecutions between 2001 and 2012 involved environmental crimes. The FBI’s
investigative priorities are protecting workers against hazardous wastes and pollutants, preventing
large-scale environmental damage that threatens entire communities, pursuing organized crime
interests that illegally dump solid waste, and monitoring businesses with a history of damaging the
environment. The FBI notes that a single instance of dumping can poison a river and cost the pub-
lic millions of dollars in cleanup costs. In Tampa, Florida, Durex Industries repeatedly disregarded
warnings to safely dispose of hazardous materials used in the manufacture of aluminum cans. In
1993, two nine-year-old boys playing in a Dumpster died when they were overcome by fumes from
materials that Durex had illegally discarded. The company was ordered to pay a $1.5 million fine,
and several Durex officials were criminally convicted.
Most prosecutions for environmental crimes are undertaken by the federal government.
Criminal provisions and penalties are typically incorporated into civil statutes regulating the
environment. Investigations in this area, for the most part, are carried out by the Environmental
Protection Agency (EPA), which refers matters to the DOJ for criminal prosecution. The central
environmental laws include the following:
•• Refuse Act—Section 13 of the Rivers and Harbors Appropriation Act (1899). Imposes criminal
penalties for improper discharge of refuse (foreign substances and pollutants) into navigable
or tributary waters of the United States.
•• Clean Water Act (1972). Imposes criminal penalties for the discharge of certain pollutants
beyond an authorized limit into navigable waterways and a prohibition on unautho-
rized dredging, the filling of wetlands, and the failure to clean up oil and other hazardous
substances.
•• Resource Conservation and Recovery Act (RCRA, 1976). Punishes knowingly storing, making
use of, or disposing of hazardous wastes without a permit. Severe penalties are imposed for
placing individuals in danger.
•• Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, 1980, revised
1986). Regulates and finances the clean-up of hazardous waste sites. Criminal penalties are
imposed for failing to report the “release” of hazardous wastes to the government.
•• Clean Air Act (1973, amended in 1990). Establishes air-quality standards and regulates sources
of air pollution. Criminal penalties are imposed for the knowing emission of hazardous
pollutants and for violation of emission standards. Enforcement is delegated to state envi-
ronmental agencies.
•• Safe Drinking Water Act (1974). Prohibits contamination of the public water system.
•• Toxic Substances Control Act (1976). Imposes criminal penalties for the failure to follow stan-
dards for use of toxic chemicals in manufacturing and industry.
•• Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA, 1996). Imposes criminal penalties for
the failure to follow standards for the manufacture, registration, transportation, and sale of
toxic pesticides.
The mens rea for most of these statutes is knowingly committing the prohibited act. A defen-
dant is not required to have knowledge that the act is contrary to a federal statute or that the act
poses a health hazard.11
OCCUPATIONAL SAFETY AND HEALTH

In 1970, Congress responded to the increasingly high number of job-related deaths and injuries by
passing the Occupational Safety and Health Act (OSHA) and establishing an agency within
the Department of Labor, the Occupational Safety and Health Administration, also known as OSHA,
to enforce the act. The act declared that workplace injuries and deaths were resulting in lost produc-
tion and wages and in preventable medical expenses and disability compensation payments. The act
also stated that every working person should be guaranteed safe and healthful working conditions.12
OSHA primarily relies on the civil process and financial penalties to ensure compliance. A
criminal misdemeanor carrying a fine of not more than $10,000 or a prison sentence of up to six
months, or both, is provided in the case of a willful violation of the law that results in the death
of an employee. A second conviction carries a fine of not more than $20,000 or a prison sentence
of up to a year, or both. False statements in any document submitted or required to be maintained
under the act may also result in a fine of not more than $10,000 or imprisonment for not more
than six months, or both.13
OSHA refers cases of intentional, knowing, or reckless violations that result in death for pros-
ecution by state authorities and, in recent years, by the Justice Department. Data compiled by
OSHA found that 4,405 workers died on the job in 2013. The most dangerous industry sectors in
2013 were farming, fishing, forestry, and transportation. The overall fatality rate for all industries
in 2014 was 3.2 workers per 100,000. Between 2007 and 2010, OSHA referred forty-nine cases for
criminal prosecution and has increased criminal referrals in recent years.
One comprehensive study examined data between 1982 and 2002 and found that corporate
executives generally have not been criminally prosecuted either by the federal government or by
the five states with their own forms of OSHA. The study found that OSHA and state agencies initi-
ated 1,798 workplace death investigations and sent a total of 196 cases to federal or state authori-
ties for prosecution. This, in turn, led to 104 prosecutions, eighty-one convictions, and sixteen jail
sentences totaling thirty years.14
In 1992, the owner of a poultry plant in North Carolina pled guilty to twenty-five counts
of involuntary manslaughter and was sentenced to twenty years in prison. The plant was not
equipped with either a fire alarm or a sprinkler system, which resulted in the death of twen-
ty-five employees and injury to thirty-six workers. One of the most important worker safety cases
involved Film Recovery Systems, an Illinois firm that extracted silver from used X-ray plates. Stefan
Golab died after ingesting poisonous cyanide fumes while working at a plant operated by Film
Recovery and its sister corporation, Metallic Marketing. Golab reportedly trembled and foamed at
the mouth before losing consciousness. The air inside the plant was found to be foul, breathing
was difficult and painful, and the ventilation was inadequate. Workers experienced dizziness, nau-
sea, headaches, and vomiting. The plant workers were never informed that they were working with
cyanide or of the danger of breathing cyanide gas. OSHA subsequently cited the firm for seventeen
separate safety violations. Workers were provided with neither safety instructions nor protective
clothing. Homicide convictions against executives and the firm were reversed on appeal based on a
technicality. The case nonetheless established the principle that individuals as well as corporations
would be held criminally liable for disregarding worker safety.15 In another important case, People
v. Pymm, OSHA fined Pymm Thermometer plant in New York for failing to protect workers against
mercury poisoning.16
Several senior executives of Massey Energy Company pled guilty to various charges resulting
from the 2010 explosion at the Upper Big Branch Mine in West Virginia that killed twenty-nine
miners. Massey Energy paid $209 million in restitution and in civil and criminal fines as a result
of the company’s misconduct in causing the worst U.S. mine disaster in the past forty years. In
another recent case, the former owner of Peanut Corporation of America, Stewart Parnell, was sen-
tenced to twenty-eight years in prison for knowingly shipping salmonella-tainted peanut butter,
which was linked to nine deaths and 714 illnesses in 2009.
SECURITIES FRAUD
Stock market fraud emerged as a subject of intense public interest when it was announced, in June
2002, that domestic diva Martha Stewart was the subject of a criminal investigation for lying to
investigators about the sale of stock.
On December 27, 2001, Stewart sold 3,928 shares of stock in the biotech company ImClone,
one day before the Food and Drug Administration (FDA) announced that it would not approve
the company’s new cancer drug, Erbitux. Stewart made roughly $228,000 by selling the stock.
Following the FDA announcement, ImClone’s stock rapidly fell in value, and had Stewart waited
to sell, she would have lost an estimated $45,000. It later was revealed that Stewart lied to federal
authorities when she denied having been informed by her stockbroker, Peter Bacanovic, and his
assistant, Douglas Faneuil, that the head of ImClone, Sam Waksal, was selling his family’s shares at
a profit of $7.3 million after learning of the test results.
Stewart and Bacanovic were each sentenced to five months in prison and five months of
home detention as a result of their convictions for lying to investigators. Waksal was sentenced to
seven years and three months in prison and was ordered to pay more than $4 million in fines and
taxes stemming from a variety of criminal offenses, including insider trading. Faneuil, in return
for cooperating with authorities, was fined $2,000. Following Stewart’s release from prison, she
was confined to home detention on her $16 million estate while being permitted to receive her
$900,000 salary and leave her home for up to forty-eight hours a week to work or run errands.
Stewart reportedly devoted herself to running her company, Martha Stewart Living Omnimedia
Inc.; writing a magazine column; and preparing for two television shows.
Critics contended that Stewart had been targeted because she was a woman and that the gov-
ernment had wasted valuable resources prosecuting her for the minor offense of lying to authorities
about the fact that she had relied on inside information concerning the test results on ImClone’s
cancer drug. Why does the law punish individuals for buying or selling stocks based on informa-
tion that is not available to the public at large?
Insider Trading
The stock market, rather than banks, is increasingly where Americans deposit and look to grow
their savings. The average individual has twice as much money in the stock market as in banks. As
a result, the federal government has become increasingly concerned with ensuring that the stock
market functions in a fair fashion and has aggressively brought criminal charges against individu-
als for stock market fraud.
A corporation that wants to raise money to build new plants, hire workers, or manufacture
innovative products typically sells stocks to the public. Individuals purchase stock in hopes that as
corporate profits rise, the stock will increase in value, and they eventually will be able to sell it at
a substantial profit. This investment in stocks not only is an important source of money for busi-
nesses but also provides individuals with the opportunity to invest their money and to save for a
house or retirement. Corporate executives and corporate boards of directors possess a fiduciary
relationship (a high duty of care) to safeguard and to protect the investments of stockholders.
The federal Securities and Exchange Commission (SEC) is charged with ensuring that corpo-
rate officials comply with the requirements of the Securities Exchange Act of 1934 in the offering
and selling of stocks. The act, for instance, requires corporations to provide accurate information
on their economic performance in order to enable the public to make informed investment
decisions. The SEC typically seeks civil law financial penalties against corporations that violate
the law and refers allegations of fraud to the DOJ for prosecution. In 2002, Congress passed the
Sarbanes-Oxley Act. This is a corporate criminal fraud statute that requires the heads of corpo-
rations to certify that their firms’ financial reports are accurate. A violation of this act is punishable
by up to twenty years in prison and a maximum fine of $5 million.17
In the past decade, the DOJ has focused its white-collar crime investigations on insider
trading in violation of Section 10(b) and Rule 10b-5 of the 1934 act. The enforcement of these
provisions is intended to ensure that the stock market functions in a fair and open fashion. Insider
trading entails the purchase or sale of securities based on information that is not available to the
public at large. The Insider Trading and Securities Fraud Enforcement Act establishes a maximum
sentence of ten years and a fine as high as $1 million for individuals convicted of insider trading.
A corporation found to engage in insider trading may be liable for a fine as high as $2.5 million.
Let us return to the ImClone example. Imagine that you are an executive at ImClone and are
informed that the company has invented a cure for cancer that has been approved by the federal
government. You know that once the information is made public, everyone will be looking to buy
ImClone stock and that this will mean that the price of the stock will increase. You tell your rela-
tives the good news and ask them to buy the stock in their names before the announcement and
then to sell the stock and to divide the profits with you. When the information is announced, you
and your grateful family find that you have made a substantial profit. You believe that this is a just
reward for your dedication to the company. The government unfortunately indicts you (the tipper)
and your relatives (the tippees) for insider trading. Why is this illegal? Because most people would
not put their money in the stock market if a small number of people exploited information that
was not available to the public at large to make a profit. This would reduce the money available to
businesses and would harm the economy.
Several business law textbooks illustrate insider trading by Diamond v. Oreamuno. In this case,
several executives of Management Assistance Inc., a computer firm, sold 56,500 shares of com-
pany stock for $28 a share at a time when they were aware that the firm’s profits were rapidly
falling. Then, they publicly announced the company’s poor economic performance, and the stock
declined to $11 a share. The defendants, by selling the stock prior to their announcement, made
$800,000 more than they would have earned had they waited to sell the stock. The New York court
ruled that “there can be no justification for permitting officers and directors . . . to retain . . . prof-
its which . . . they derived solely from exploiting information gained by virtue of their inside posi-
tion as corporate officials.”18
There are two theories of insider trading, both of which prohibit the use of information that is
not available to the public to buy or sell a stock. Both theories impose criminal liability on tippers
(individuals who transmit information) and tippees (individuals who receive the information).
The disclose or abstain doctrine states that corporate officials must publicly reveal informa-
tion to the public relating to the economic condition of a corporation before they buy or sell the
company’s stock. The misappropriation doctrine expands the law beyond individuals who
work for a corporation and criminally punishes all individuals who take and use inside corporate
information that is in the possession of their employer. An example is the U.S. Supreme Court case
of United States v. O’Hagan, in which a lawyer was convicted of using information that his law firm
obtained from a corporate client to make a profit of $4.3 million.19
A conviction for insider trading requires that an individual who is a corporate official or stock-
holder or who has access to material, nonpublic information use this information intentionally
and deliberately to buy or sell securities for his or her own benefit. Material information is infor-
mation that is likely to affect the price of a stock, such as government approval for a drug company
to produce a new anticancer drug.
Between 2009 and 2012, the SEC filed 168 insider trading cases, more than in any three-year
period in the agency’s history. These cases involved roughly four hundred individuals and orga-
nizations whose unlawful activities involved roughly $600 million. In 2014, the SEC filed 807
enforcement actions involving a wide variety of violations of the law, and in 2015, the SEC filed
755 enforcement actions. Roughly 8–10 percent of these cases involve insider trading. Insider trad-
ing is difficult to establish. Investigators must look at who purchases or sells stock and determine
whether these individuals relied on inside information in purchasing the securities. The prosecu-
tion also must prove a fraudulent intent. In other words, the government must establish that a
defendant intentionally purchased or sold the stock knowing that the transaction was in violation
of the law. What type of facts would you use to establish a case of insider trading by a corporate
executive?
Insider trading is one example of securities fraud. Pump and dump involves spreading false
information about a company to drive up the stock price. The individuals behind the scheme
then sell the shares that they inexpensively purchased for a significant profit. In 2002, seven-
teen-year-old Cole Bartiromo was sentenced to thirty-three months in prison for using the Internet
to spread false information about various companies in which he had invested. As a result of his
scheme, Bartiromo made a $91,000 profit when he sold the securities.
Securities violations also may be prosecuted under financial fraud statutes rather than statutes
regulating the sale and purchase of securities.
Keep in mind that federal courts recently have disagreed over whether the person receiving the
Read United States
tip in an insider trading case must be aware that the tipper has received a substantial benefit (e.g., a v. Carpenter on the
monetary bribe) for transmitting the tip. Courts have reasoned that otherwise an individual would study site: study
be criminally liable for information provided to a family member or friend. On the other hand, .sagepub.com/
this type of inside information gives tippees knowledge that is not available to the general public. lippmanness2e.

In December 2008, prominent New York investment Carnegie Hall, the Public Theater, the Special Olympics,
broker Bernard L. Madoff called his sons into his office and the Gift of Life Bone Marrow Foundation.
and announced that his business was a “big lie” and Madoff defrauded his friends, his own sister, and
“basically a giant Ponzi scheme.” Madoff sadly noted the institutions that trusted him. He demonstrated
that there was “nothing left” and that he expected that even the most educated and sophisticated mem-
to “go to jail.” He was arrested on December 11 and bers of U.S. society can be tricked by a skilled con
confessed to the FBI that he had looted investors of man. Madoff’s clients included the family that owned
as much as $50 billion, making this the largest fraud the New York Mets baseball team and the former
in U.S. history. Madoff’s Ponzi scheme was relatively owner of the Philadelphia Eagles football team. His
unsophisticated. He would use the money provided victims included Yeshiva University, the institution that
by new investors to pay returns to old investors. This had embraced and honored him. New York Law School
enabled Madoff to pay investors a consistent return and Tufts University also suffered a loss of portions
of 10–15 percent a year. He was so successful that of their endowments. A number of charitable organiza-
he could afford to turn investors away who lacked the tions lost most of their resources, including the foun-
“right background” and required most people who dation of Elie Wiesel, the famed Holocaust survivor
wanted to invest their money to provide at least $1 and commentator. The collapse of charitable founda-
million. Other Wall Street brokers made millions of dol- tions meant that many nonprofit foundations that had
lars by turning all their clients’ funds over to Madoff for received donations now found that they had a shortage
investment. This “house of cards” collapsed when the of money and confronted the prospect of closing their
U.S. economy took a downturn and a large number of doors.
Madoff’s investors asked for the return of their money There is no obvious explanation for Madoff’s cor-
and found that their money had disappeared. rupt conduct. He was from an extremely modest back-
A portion of the money undoubtedly was used to ground, had lifted himself out of poverty through sheer
support Madoff’s quiet but luxurious lifestyle. This intelligence, and had saved the money he earned as a
included memberships in most of the leading golf young man from menial jobs and proceeded to build
clubs in New York and Florida; partial ownership of one of the most successful firms on Wall Street. Mad-
two corporate jets and of two boats; and ownership of off pioneered the use of computers for investing, was
multiple homes, including one in France. Despite his a past president of a national organization of financial
affluent lifestyle, Madoff was respected for his public analysts, and served on the group’s board of gover-
service and his charitable foundation. He gave gener- nors. It was Madoff’s prominence and his powerful cli-
ously to worthy organizations in New York City including entele that may have intimidated the Securities and
(Continued)
(Continued)
Exchange Commission and deterred the organization affected by the story of a widow whose life savings
from investigating the performance of his investments, had been stolen by Madoff. Judge Chin noted that
which most experts agreed was “too good to be true.” an offender should be punished in proportion to his
Some observers have commented that investors were blameworthiness and that Madoff’s crimes were
willing to tolerate Madoff’s suspected illegalities as “extraordinarily evil” and his sentence should fit his
long as they were benefiting financially. “moral culpability.”
Judge Denny Chin later explained that he had Madoff currently is serving a 150-year sentence
considered a sentence that would have allowed Mad- and is in minimum security in Butner, North Carolina.
off to be released when he reached ninety years of In an interview, Madoff accused Judge Chin of making
age, but that he had wanted to send the “strongest him into the “human piñata of Wall Street” and caus-
possible message” to other individuals contemplat- tically observed that he was surprised that the judge
ing white-collar crimes that they would be harshly did not “suggest stoning in the public square.” He said
punished. He also wanted the victims to know that that “serial killers get a death sentence, but that’s vir-
the justice system had taken their financial loss and tually what he gave me.” Was Madoff’s 150-year sen-
suffering seriously and noted that he was particularly tence disproportionate?
MAIL AND WIRE FRAUD

The U.S. government has relied on the mail and wire fraud statutes to prosecute a variety of corrupt
schemes that are not specifically prohibited under federal laws. Fraud may be broadly defined as
an intentional and knowing misrepresentation of a material (important) fact intended to induce
another person to hand over money or property. Mail and wire fraud prosecutions range from
fraudulent misrepresentations of the value of land and the quality of jewelry to offering and selling
nonexistent merchandise. The common element in these schemes that permits the assertion of
federal jurisdiction is the use of the U.S. mail or wires across state lines (phone, radio, television).
The federal mail fraud statute, 18 U.S.C. § 1341, reads as follows:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for
obtaining money or property by means of false or fraudulent pretenses . . . for the purpose
of executing such scheme . . . places in any . . . authorized depository for mail . . . any
matter or thing whatever to be sent or delivered by the Postal Service, . . . or takes or
receives therefrom, any such matter or thing, . . . shall be fined under this title or impris-
oned not more than 20 years, or both. . . .
A conviction for mail fraud requires the prosecution to demonstrate each of the following:
•• Scheme. Knowing participation in a scheme or artifice to defraud.

•• Falsehood. Intentional false statement or promise.
•• Money or Property. Intent to obtain money or property.
•• Reliance. Statement or promise of a kind that would reasonably influence a person to part
with money or property.
•• Mail. Using the mail for the purpose of executing the scheme. This includes private mail
delivery services. The mail is required to be only incidental to an essential part of the crimi-
nal design. The mail also may be used to “lull” a victim who has been defrauded into a “false
sense of security.”
The requirements of mail and wire fraud are similar, with the exception that the wire com-
munication must cross interstate or foreign boundaries.20 A conspiracy to commit mail or wire fraud
is also prohibited under federal statutes. Under the conspiracy statute, a prosecutor is required to
demonstrate that the use of the mail or wires would naturally occur in the course of the scheme
or that the use of the mail or wires was reasonably foreseeable, although not actually intended.21
In United States v. Duff, Duff and other co-conspirators were convicted of mail fraud based
on falsely representing that various firms were minority- or women-owned businesses. Chicago
reserved certain contracts for firms that were at least 51 percent minority or female owned. A fed-
eral district court held that the City of Chicago had been defrauded of $100 million in contracts
that had been set aside for “minority firms.” The court held that the mail was “incidental to an
essential part of the scheme” because the fraud depended on the City of Chicago mailing pay-
ments to the conspirators.22
In 2010, Congress established the Consumer Financial Protection Bureau (CFPB) to protect
consumers. The CFPB states that it is charged with the following functions:
•• Write rules, supervise companies, and enforce federal consumer financial protection laws
•• Restrict unfair, deceptive, or abusive acts or practices
•• Take consumer complaints
Read United States
•• Promote financial education v. Duff on the
•• Research consumer behavior study site: study
•• Monitor financial markets for new risks to consumers .sagepub.com/
•• Enforce laws that outlaw discrimination and other unfair treatment in consumer finance lippmaness2e.
You Decide 10.1 Norby Walters is a sports Only two of the fifty-eight players signed by Walters
agent who signed contracts with fulfilled their understanding with Walters and allowed
fifty-eight college football players, him to negotiate with the teams that drafted them; the
naming him as their representa- other players kept the cars and the money and signed
tive in negotiating contracts with with other agents. Walters threatened several players
pro football teams. He offered cars and money to play- with physical retaliation unless they repaid Walters’s
ers who would sign with him. Walters was to receive a firm for the money and cars that they had been pro-
percentage of the players’ income if they were drafted vided during their years in college. A seventy-five-page
and signed with a team. The National Collegiate indictment against Walters included a mail fraud count.
Athletic Association (NCAA) rules stipulate that a stu- The fraud involved causing the universities to fund the
dent who signs a contract with an agent is a profes- scholarship of athletes who, unknown to the schools,
sional, ineligible to play on collegiate teams. Walters, had become ineligible as a result of having signed con-
to avoid jeopardizing his clients’ careers, dated the tracts with Walters to represent them. The fraud made
player contracts following the end of the player’s eligi- use of the mail because each university required ath-
bility and locked the contracts in a safe. He promised letes to verify their eligibility to play and then sent cop-
to lie to the universities about the date that the con- ies of the eligibility forms by mail to the intercollegiate
tracts had been signed in response to any inquiries. athletic conference with which the school was affiliated
Walters consulted with lawyers who concluded that his (e.g., the Big Ten).
plan would violate the NCAA rules, although it was not Would you convict Walters of mail fraud? See
in violation of any laws. United States v. Walters, 997 F.2d 1219 (7th Cir. 1993).
THE TRAVEL ACT

The Travel Act of 1961 was intended to assist state and local governments to combat organized
crime. The Travel Act, 18 U.S.C. § 1952, authorizes the federal government to prosecute what are
ordinarily considered the state criminal offenses of gambling, the illegal shipment and sale of
alcohol and controlled substances, extortion, bribery, arson, prostitution, and money laundering.
Federal jurisdiction is based on the fact that the crimes have been committed following travel in
interstate or foreign commerce or through the use of the U.S. mail or any other facility in interstate
or foreign commerce.
In United States v. Jenkins, the Second Circuit Court of Appeals stated that a conviction
under the Travel Act requires (1) travel or the use of the mail or some other facility (e.g., wires) in
interstate or foreign commerce (2) with the intent to commit a criminal offense listed in the Travel
Act or a crime of violence or to distribute the proceeds of an illegal activity and (3) the commission
of a crime or attempt to commit a crime. Performing or attempting to perform an act of violence is
punishable by not more than twenty years in prison or a fine or both. Other offenses are punish-
able by not more than five years in prison or a fine or both.23
In United States v. Goodman, Goodman promoted records by contacting and persuading radio
stations to place records from the companies he represented on their “playlists.” Goodman, how-
ever, went beyond mere persuasion and was found to have illegally paid as much as $182,615 a
year in cash through the mail to program directors and disc jockeys in return for placing records
on their playlists. Goodman was convicted under the Travel Act of the use of interstate mail to
commit bribery. The federal appellate court rejected the argument that the payments occurred
after the records were added to the playlists and that the payments therefore did not constitute a
bribe to induce station managers and disc jockeys to play specific records. The court noted that the
receipt of the mailed money was intended both to “reward a past transgression and to influence
or promote a future one.”24
Goodman was also convicted under 47 U.S.C. § 508, the Payola Act, which prohibits the pay-
ment of money to radio station employees for the inclusion of material as part of a program unless
the payment is disclosed to the recipient’s employer. The federal appellate court ruled that the
offense is complete upon the payment of money and that the records need not actually be played.
HEALTH CARE FRAUD

Roughly one-fifth of the federal budget is devoted to health care, most of which involves reimburs-
ing doctors and health care workers for services provided under various federal and state programs
to the elderly, children, the physically and mentally challenged, and economically disadvantaged
individuals. The difficulty of administering programs of this size and complexity creates an oppor-
tunity for doctors and other health care providers to submit fraudulent claims for the reimburse-
ment of services that, in fact, were never provided or to seek payment for unnecessary procedures.
In 1996, Congress acted to prevent this type of fraud when it adopted a statute on health care
fraud that punishes health care providers or consumers who knowingly and willfully execute or
attempt to execute a scheme involving false statements intended to obtain, keep, or qualify for
benefits or to increase benefits under a federal health care program. Health care fraud is punishable
by a fine and imprisonment of up to ten years or both. Fraudulent acts that cause serious injury
are punishable by a term of imprisonment of up to twenty years, while fraudulent acts that result
in death are punishable by up to life in prison.25
It is estimated that health care fraud costs the taxpayers $68 billion annually. In United States
v. Baldwin, the defendants were convicted of submitting a false claim of $275,000 for four dental
chairs.26 The health care fraud statute was interpreted to cover individuals outside the medical
profession in United States v. Lucien. The defendants paid individuals to cause collisions with other
vehicles and to claim that they suffered serious injuries. The defendants referred these alleged
“victims” to various medical clinics in return for a fee. The clinics sought reimbursement from
New York for medical procedures that, in fact, had not been provided. The “victims” then sued
the drivers of the other vehicles in hopes of obtaining a settlement from the drivers’ insurance
companies.27
The type of extreme and grossly fraudulent abuse of the health care system that can take place
is illustrated by United States v. Miles. Affiliated Professional Home Health (APRO) was formed
in 1993 in Houston, Texas, by Carrie Hamilton, Alice Miles, and Richard Miles. Richard Miles, a
vice principal of a Houston-area high school, was married to Alice Miles, a registered nurse, and
is the brother of both Hamilton, also a registered nurse, and Harold Miles, an APRO employee.
When APRO obtained certification from the Texas Department of Health and a Medicare provider
number, the company began to treat Medicare-covered patients and to obtain reimbursement for
in-home visits to such patients.28
The government presented evidence that the defendants, through APRO, submitted cost
reports that grossly inflated expenses for items ranging from mileage to employee salaries. For
example, Hamilton was reimbursed for a whopping 282,000 travel miles from 1994 to 1996, a
period when she frequently visited Louisiana casinos. Alice Miles, another avid gambler, was
reimbursed for 150,000 travel miles over three years, while her husband, whose primary job kept
him occupied for most of the workday, was reimbursed for 180,000 miles over four years.
APRO also obtained reimbursement for costs that included personal expenses, such as renova-
tions to the Hamiltons’ home, renovations to the Mileses’ parents’ residence, and the purchase of
various home appliances. The defendants billed expenses to Medicare for two or three times the
actual cost incurred. At times, they engaged in more intricate schemes involving the splitting of
large reimbursement checks into smaller cashier’s checks that were then deposited into the APRO
principals’ bank accounts or used for personal expenses. On one occasion, Hamilton split an APRO
check into cash and three cashier’s checks at one bank. She deposited two of the cashier’s checks
into her own account at another bank and used a portion of the funds to obtain a fourth cashier’s
check to purchase a new Ford Mustang convertible. The third cashier’s check from the original
bank was cashed at the Star Casino.
Medicaid provides federal assistance for medical care for the elderly and for the poor, and
Medicaid fraud is covered by the Medicaid False Claims Statute, 42 U.S.C. § 1320a-7b(a). In United
States v. Franklin-El, the defendants headed a clinic for individuals addicted to alcohol and narcot-
ics. They were convicted of health care fraud based on their filing of roughly 1,331 false claims for
federal Medicaid reimbursements and submitting false claims for treating individuals who were
not enrolled at the clinic, some of whom were young children. The scheme netted the defendants
over $1.2 million. In May 2012, more than one hundred individuals were arrested in seven cities
for a conspiracy involving more than $450 million in fraudulent medical billings.29
Another relevant statute is the Medicaid Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b), which
prohibits an individual from promising or receiving payments for directing a patient to a health
care provider.
ANTITRUST VIOLATIONS
The Sherman Antitrust Act of 1890 is intended to ensure a free and competitive business mar-
ketplace. The Sherman Act, according to former Supreme Court justice Hugo Black, is designed to
be a “comprehensive charter of economic liberty aimed at preserving free unfettered competition
as the rule of trade.”30 Imagine if every bar and restaurant in a college town engaged in price fixing
and agreed to sell beer at an inflated price rather than compete with one another for the business
of students. The theory behind the Sherman Act, as explained by Justice Black, is that economic
competition results in low prices and high quality and promotes self-reliance and democratic
values. Can you explain why free competition leads to these benefits?
The criminal provisions of the Sherman Act state that any person “who shall make any con-
tract or engage in any combination or conspiracy” to interfere with interstate commerce is guilty
of a felony. A corporation shall be punished with a fine not exceeding $10 million and an individ-
ual by a fine of $1 million or by imprisonment not exceeding ten years, or both.31
A conviction requires proof that two or more persons or organizations
•• knowingly entered into a contract or formed a combination or conspiracy, and that

•• the combination or conspiracy produced or potentially produced an unreasonable restraint
of interstate trade.
In United States v. Azzarelli Construction Co. and John F. Azzarelli, the defendant was the owner
of a construction company who agreed with the owners of other construction businesses to
engage in bid-rigging and fix the process of bidding on state contracts to ensure that each firm
would receive state contracts. One firm would be designated to receive a contract and would
submit an unreasonably high bid on the job. The competing firms would submit grossly inflated
bids, ensuring that the first firm would receive the contract. The firms that intentionally lost
the job then would be compensated by receiving a kickback from the successful contractor. The
court noted that this fraudulent practice interfered with interstate commerce by raising the cost
of highway construction and resulted in less money being available to upgrade the highway
system.32
Antitrust violations directly affect consumers. A price-fixing conspiracy by two major soft-
drink bottling companies in the Baltimore–Washington and Richmond, Virginia, areas was
e stimated by a federal district court judge to have resulted in consumers paying between $10 and
$12 million more to purchase soft drinks than they would have paid had the companies competed
against one another rather than artificially fixing the price.33
IDENTITY THEFT
William Shakespeare wrote that stealing “my good name” enriches the thief, while making the
victim “poor indeed.” Today identity theft, the theft of your name and identifying informa-
tion, can lead to economic damage and has been called the crime of the twenty-first century. The
stealing of your Social Security number, bank account information, credit card number, and other
identifying data enables thieves to borrow money and make expensive purchases in your name.
The end result is the ruining of your credit and the creation of financial hardship, forcing you to
spend months restoring your “good name.”
In the past, thieves threatened to “take and carry away” tangible property. Today, the theft
of intangible property, such as a credit card or Social Security number, may lead to even greater
harm because the thief can employ the number to make repeated purchases, to borrow money, or
to establish phone service or cable access. You might not even be aware that the information was
taken until you apply for credit and are rejected.
Thieves collect data by examining receipts you abandon in the trash, observing the numbers
you enter at an ATM, intercepting mail from credit card companies, or enticing you to surrender
information to what appears to be a reputable e-mail inquiry. A lost or stolen wallet or burglary
of a home or automobile can result in valuable numbers and documents falling into the hands
of organized identity theft gangs. Information can also be obtained by breaking into a company
database. Individuals falsely portraying themselves as legitimate business executives, for instance,
gained access to ChoicePoint in 2005 and stole roughly 145,000 credit files. Shortly thereafter,
computer hackers copied the files of thirty thousand individuals contained on the database of
LexisNexis. Bank of America reported the disappearance of a computer tape containing the files of
more than a million customers.
Even strict protections over your personal information may not be effective. A study by the
Federal Trade Commission (FTC), a federal agency concerned with consumer protection, deter-
mined that roughly 15 percent of identity thefts are committed by a victim’s family members,
friends, neighbors, or coworkers. The perpetrators of identity theft often transfer the information
to sophisticated gangs of identity thieves in return for drugs, cell phones, guns, and money.
The Congressional Research Service estimates that over one million Americans are victimized
by identity theft each year and find themselves with unwarranted financial obligations or may
even be charged with crimes as a result of another person assuming their identity.
In 1998, the U.S. Congress passed the Identity Theft and Assumption Deterrence Act. This leg-
islation created the new offense of identity theft and prohibits the knowing transfer or use without
lawful authority of the “means of identification of another person with the intent to commit, or
to aid or abet, any unlawful activity” that constitutes a violation of federal law or a felony under
state or local law. A “means of identification” includes an individual’s name, date of birth, Social
Security number, driver’s license number, passport number, bank account or credit card number,
fingerprints, voiceprint, or eye image. Note that merely obtaining another individual’s personal
documents can result in a year or more in prison. Sentences for violation of the Identity Theft Act
can be as severe as fifteen years in prison and a significant fine in those instances in which the per-
petrator obtains items valued at $1,000 or more over a one-year period. The perpetrators of identity
theft typically are also in violation of statutes punishing credit card fraud, mail fraud, or wire fraud.
Table 10.1 lists the top ten states for identity theft complaints in 2014.
The Utah statute on identity theft punishes an individual who knowingly or intentionally
obtains “personal identifying information of another person” and uses or attempts to use this
information “with fraudulent intent, including to obtain, or attempt to obtain credit, goods, ser-
vices . . . or medical information in the name of another person.” Obtaining items valued at more
than $1,000 is a felony under the Utah law.34
In Flores-Figueroa v. United States, Ignacio Flores-Figueroa, a Mexican citizen, in 2006 presented
his employer with counterfeit Social Security and alien registration cards. These cards used his real
name but used arbitrarily selected numbers that unknown to Flores-Figueroa belonged to another
individual. The U.S. Supreme Court held that

the federal identity theft statute requires that Table 10.1 Top Ten* States for Identity Theft
a defendant know that the “means of identi-
Complaints in 2014 per 100,000 Population
fication” he or she transfers, possesses, or uses
belongs to “another person.” Flores-Figueroa, State Rate
as a result, could not be held liable for identity
theft under federal law.35 Florida 186.3
State courts have overturned convictions Washington 154.8
on the grounds that the identification numbers
did not belong to another person. The Kansas Oregon 124.6
statute K.S.A. 2000 Supp. 21-4018 requires that Missouri 118.7
a defendant “obtain, possess, transfer, use, or
attempt to obtain the identification documents Georgia 112.7
or personal identification numbers of ‘another
Michigan 104.3
person.’” This would occur, for example, when a
defendant “‘took’ another person’s social secu- California 100.5
rity number and used that number when apply-
ing for a credit card or bank account.” In City of Nevada 100.2
Liberal, Kansas, v. Vargas, Juan Vargas purchased Arizona 96.0
a Missouri identification and a Social Security
card belonging to Guillermo Hernandez. He Maryland 95.9
was acquitted because there was no evidence
Texas 95.9
that Hernandez was a real person whose iden-
tity had been stolen.36 National Rate = 104.3
Source: Kathleen O’Leary Morgan and Scott Morgan, eds. State Rankings 2016:
ACCESS DEVICE FRAUD A Statistical View of America. Thousand Oaks, CA: CQ Press, 2016, p. 56.
* Eleven are included due to the two-way tie of Maryland and Texas.
The spread of credit cards, debit cards, ATM
cards, PINs, and other means of gaining access
to money, goods, and services has led states to adopt statutes on access device fraud. The
Pennsylvania statute, § 4106, prohibits the use of an access device to obtain or to attempt to
obtain property or services, knowing that the device is “counterfeit, altered or incomplete,”
that the device was issued to another person who has not authorized the use, or that the device
has been revoked or canceled. The statute also makes criminal the sale, transfer, or possession
of “altered” or “counterfeit” access devices. An unlawful transaction valued at more than $500 is
a felony.
MONEY LAUNDERING
Individuals involved in criminal fraud or drug or vice transactions confront the problem of
accounting for their income. These individuals may want to live a high-profile lifestyle and buy a
house or automobile that they cannot afford based on the income reported on their tax forms. An
obvious gap between lifestyle and income may attract the attention of the IRS or law enforcement.
How can individuals explain their ability to purchase a million-dollar house when they report an
income of only $30,000 a year? Where did the cash come from that they used to buy the house?
Bank regulations require that deposits of more than $10,000 be reported by the bank to the federal
government. How can individuals explain to government authorities the source of the $50,000
that they deposit in a bank?
The solution is money laundering. This involves creating some false source of income that
accounts for the money used to buy a house, purchase a car, or open a bank account. This typi-
cally involves schemes such as paying the owner of a business in cash to list a drug dealer as an
employee of the individual’s construction business. In other instances, individuals involved in
criminal activity may claim that their income is derived from a lawful business such as a restaurant.
The federal laundering statute, 18 U.S.C. §§ 1956 and 1957, is intended to combat the “washing”
of money by declaring that it is criminal to use or transfer illegally obtained money or property.
This is punishable by a fine of up to $500,000 or a fine of up to twice the value of the property and
imprisonment for up to twenty years.
Money laundering includes the following elements:
•• the defendant knowingly engaged or attempted to engage in a monetary transaction;

•• the defendant knew the transaction involved the “profits” (funds or property) from one or
more of a long list of criminal activities listed in the statute;
•• the transaction was intended to conceal or disguise the source of the money or property;
or
•• the transaction was intended to promote the carrying on of a specified unlawful activity.
In United States v. Johnson, the defendant generated millions of dollars from a fraudulent
scheme involving Mexican currency. The Tenth Circuit Court of Appeals ruled that the use of
these funds to purchase an expensive home and a Mercedes violated the money laundering
statute in that these purchases furthered the defendant’s continued illegal activities by provid-
ing him with a legitimacy that he used to impress, attract, and ultimately victimize additional
investors.37
In United States v. Jackson, Reverend Joseph Davis was convicted of engaging in transactions
intended “to conceal or disguise the . . . proceeds” of profits from an unlawful cocaine drug
scheme (see opening vignette). He directed the manufacture and distribution of cocaine at two
crack houses. He then deposited the profits in cash into various accounts, listed under the name of
the 15th Street Baptist Church, in which the proceeds of legitimate activities also were deposited.
Funds were used for church expenses as well as for Reverend Davis’s rent; credit card charges; and
purchases of automobiles, cellular phones, and beepers used to direct the sale of cocaine. Davis was
sentenced to thirty years in prison.38
In 2012, HSBC agreed to pay federal and state governments $1.92 billion in fines for assisting
Mexican drug cartels to launder money through the U.S. banking system. The individual banking
officials responsible for money laundering were not held criminally liable.
CURRENCY VIOLATIONS
In the 1970s, the federal government enacted a series of laws to monitor individuals who con-
ducted banking transactions involving large amounts of cash that potentially might be the pro-
ceeds of unlawful activity. These laws work in combination with money laundering statutes to
detect criminal activity. Banks and “trades or businesses” are required to report to the IRS transac-
tions involving cash of more than $10,000. It is a crime to “structure” transactions to evade the
reporting requirements of these currency transaction reports.39 For example, in Ratzlaf v. United States,
the defendant attempted to pay a $100,000 gambling debt to a Las Vegas casino by a check. The
casino informed Ratzlaf that it was required to report the payments of over $10,000 to the IRS.
Ratzlaf responded by obtaining a series of $10,000 checks. Ratzlaf was found guilty of evading the
$10,000 reporting requirement, although his conviction later was overturned because the judge
failed to instruct the jury that they were required to find that Ratzlaf “knew that the structuring in
which he engaged was unlawful.”40
Congress later amended the law to provide that an individual may be held liable for a “structur-
ing offense” who like Ratzlaf knowingly violates the reporting requirement regardless of whether
he or she knows that this constitutes a crime. Financial institutions also are required to report “any
suspicious transactions.” These reports typically are filed when there is a transaction of $5,000 that
a bank suspects involves money laundering or an effort to evade a reporting requirement or that is
an unusually large amount of money for the customer involved in the transaction.
In 2016, former Speaker of the House of Representatives Dennis Hastert was sentenced to fif-
teen months in prison and a $250,000 fine along with two years of supervised release after plead-
ing guilty to “illegal structuring.” Hastert on a number of occasions withdrew less than $10,000
from the bank in order to evade the withdrawals being reported to the federal government. He
admitted that his intent was to conceal payments to a young man whom he had molested while
a wrestling coach.
TAX CRIME
We all are required to file a yearly tax form reporting our income to the IRS. The five primary types
of tax crimes are listed below.
1. Tax Evasion. The willful underpayment of taxes may result in a fine of up to $100,000 for an
individual and $500,000 for a corporation and/or imprisonment for five years. The failure
to pay taxes owed may result from a failure to disclose income or overstating the amount
of a tax deduction (e.g., for a charitable deduction) to which an individual is entitled.41
2. Failure to Collect Taxes. The willful failure of an employer to collect taxes or to pay taxes
owed to the IRS is a criminal offense.42
3. False Returns. The willful misrepresentation of a material fact on a tax form constitutes “tax
perjury.” This typically involves a failing to report income or claiming a larger deduction
than the individual is entitled to claim.43
4. Failure to File a Return. A willful failure to file a return or the filing of blank or incomplete
return is a misdemeanor subject to a fine of $25,000 for an individual or $100,000 for a
corporation and/or imprisonment for not more than one year.44
5. Tax Preparer. A tax preparer may be criminally liable for willfully aiding and assisting in the
preparation of a false tax reform.45
Criminal liability under these statutes requires that an individual act “willfully.” This requires
that an individual knows of the law and intends to violate the law. In other words, the defendant
must possess a “full knowledge” of the provision of the tax code and must voluntarily and inten-
tionally violate the law. An individual who breaks the law who is unaware of the requirements of
the law does not possess a willful criminal intent. An individual who knows the requirements of
the law and who intentionally and deliberately violates the law because he or she disagrees with
the requirements of the law possesses a willful criminal intent.46
COMPUTER CRIME
Computer crime or cybercrime is a crime committed through the use of a computer. Computer
crime poses a challenge for criminal law. Larceny historically has protected tangible (material)
property. Courts have experienced difficulty applying the traditional law of larceny to individuals
who gain access to intangible property without authorization (nonmaterial property that you can-
not hold in your hands). The primary property offenses committed in cyberspace include unautho-
rized computer access to programs and databases and unlawfully obtaining personal information
through deceit and trickery. Can you take and carry away access to a computer program?
In Lund v. Commonwealth, the defendant, a graduate student in statistics at Virginia Polytechnic
Institute, was charged with larceny and the fraudulent use of “computer operation and services”
valued at $100 or more. The customary procedure at the university was for departments to receive
computer dollar credits. These dollar credits were deducted from the departmental account as fac-
ulty and students made use of the university’s central computer. This was a bookkeeping procedure,
and no funds actually changed hands. Lund’s adviser failed to arrange for his use of the university
computer, and Lund proceeded to gain access to the university computer without authorization
and spent as much as $26,384.16 in unauthorized computer time. The Virginia Supreme Court
ruled that computer time and services could not be the subject of either false pretenses or larceny
“because neither time nor services may be taken and carried away. . . . It [the Virginia statute] refers
to a taking and carrying away of a certain concrete article of personal property.”47
State legislatures and the federal government responded to Lund by passing statutes addressing
computer theft and crime. These statutes punish various types of activity including unauthorized
access to a computer or to a computer network or program; the modification, removal, or disabling
of computer data, programs, or software; causing a computer to malfunction; copying computer
data, programs, or software without authorization; and falsifying e-mail transmissions in connec-
tion with the sending of unsolicited bulk e-mail. The question remains whether law enforcement
possesses the expertise and resources to track sophisticated cybercriminals.
State statutes on computer crimes, as noted above, address a number of areas:
•• Computer Fraud and Theft. The use of a computer to obtain property or services by false pre-
tenses, embezzlement, larceny, or extortion.
•• Computer Hacking. The entry into a computer system without authorization with the intent
temporarily or permanently to halt or to disable a computer, computer programs, or soft-
ware; to erase or to remove computer data or a computer program; or to make an unautho-
rized copy of computer data or a computer program.
•• Computer Trespass. The intentional entrance into a computer system without permission and
with the intent to cause injury to an individual.
•• Spam. Knowingly transmitting a commercial, unsolicited e-mail that contains false or mis-
leading information on a subject line or uses another individual or organization’s Internet
address or domain name without permission.
•• Computer Tampering. The insertion of a program into a computer knowing that the program
contains information or commands that may cause damage to the computer or to any other
computer accessed by the computer or that accesses the computer. This is directed against
computer viruses, worms, and “rogue programs.”
•• Computer Stalking. The use of the Internet or other electronic communication devices to stalk
an individual.
In 2013 in People v. Puesan, the defendant, a suspended Time Warner employee, installed a
keystroke logger on three of Time Warner’s computers and used the information he wrongfully
obtained with the keystroke logger to gain access to a Time Warner program that stores confi-
dential customer information. He subsequently was convicted of almost every offense defined in
the New York State computer crime statute (Article 156) including computer trespass, computer
tampering, unlawful duplication of computer-related material, and criminal possession of comput-
er-related material.48
In 1984, Congress passed the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, which has
been amended on several occasions. The act is intended to provide a comprehensive statute on
computer crime, which previously was prosecuted under more than forty different federal laws,
most of which originally were drafted to combat conventional crime. The federal government’s
jurisdiction is based on the interest in protecting government computers and the computers of
financial institutions regulated by the U.S. government, and on the interest in protecting against
the use of computers to transmit information across state lines or to attack government computers.
Several important provisions are listed below.
Passwords. The act prohibits “knowingly and with intent to defraud, trafficking in passwords to per-
mit unauthorized access to a government computer, or to affect interstate or foreign commerce.”49
Extortion. The act proclaims that it is unlawful to transmit in interstate commerce any threat to
cause damage to a protected computer with the intent to extort something of value.50
Damage to Computer. It is a crime to “knowingly cause the transmission of a program, informa-
tion code, or command” in interstate commerce intended to cause damage to a computer used
by the U.S. government or by a financial institution.51
Theft of Information. The act prohibits intentionally accessing a computer without authoriza-
tion and obtaining information from a financial institution, credit card company, or depart-
ment of the U.S. government.52
The CAN-SPAM Act of 2003 is a federal antispam act that directs the FTC to formulate rules reg-
ulating commercial e-mails. Spam is defined as unsolicited e-mail messages sent to a large number
of recipients. The act provides the following53:
Header. The header of the commercial e-mail may not contain materially false or materially
misleading information.
Subject Line. The subject line may not contain deceptive information.
Identification. The e-mail is required to carry a “clear and conspicuous” identification that it is
an advertisement or solicitation.
Opt Out. The e-mail must contain “clear and conspicuous” notice of the opportunity to opt out
of receiving future e-mails from the sender.
Notice. An e-mail may not be sent after the sender received notice that the recipient no longer
wishes to receive e-mail from the sender (i.e., has “opted out”).
Postal Address. The e-mail contains the sender’s physical postal address.
In 2006, the United States joined over forty other countries in ratifying the International
Convention on Cybercrime. The treaty requires states to adopt a number of computer crimes
already punished under U.S. laws and attempts to increase cooperation among countries in com-
bating computer crime. This type of collaboration in attacking crime is necessary because of the
ability of computer criminals in one country to commit crimes in other countries.
In 2011, Aaron Swartz, twenty-six, a leading advocate for open access to information, broke
into the computer network at Massachusetts Institute of Technology and downloaded millions of
documents from JSTOR, a nonprofit online organization that sells access to scholarly articles to
libraries. Swartz believed that information should be available to everyone and that it was wrong
that only faculty and students whose library could afford access to JSTOR had access to scholarly
research. Swartz hoped to bring attention to JSTOR’s monopoly over research, some of which had
been funded by federal dollars. Swartz was charged with multiple counts of computer fraud, carry-
ing a potential sentence of up to thirty-five years in prison and $1 million in fines. He reportedly
was extremely depressed over his impending criminal prosecution and committed suicide before
the case was brought to trial.54
You Decide 10.2 Lori Drew, forty-nine, created Megan committed suicide. Lori was angry over Megan’s
a Myspace account in 2007 under alleged gossip about her daughter Sarah and knew that
the name of Josh Evans, a ficti- Megan suffered from depression and harbored thoughts
tious sixteen-year-old male. “Josh” of suicide. Lori was prosecuted by federal authorities
started corresponding with thir- under the Computer Fraud and Abuse Act (CFAA). The
teen-year-old Megan Meier. “Josh” told Megan that he jury found that Lori intentionally had violated the terms
recently had moved to a nearby town, and they corre- of service of Myspace and that as a result she was guilty
sponded for several weeks. Josh’s tone changed at of “accessing a computer involved in interstate or for-
some point during the correspondence, and he wrote in eign communication without authorization or in excess
an instant message that “the world would be a much of authorization to obtain information.” Is the intentional
better place without you.” Megan responded to Josh breach of a Web site’s terms of service sufficient to con-
that he was the kind of boy that “a girl would kill herself stitute a criminal violation of the CFAA? See United
over,” and shortly thereafter, on October 16, 2008, States v. Lori Drew, 259 F.R.D. 449 (C.D. Cal. 2009).
THEFT OF INTELLECTUAL PROPERTY

Intellectual property refers to the content of books, films, artistic works, musical scores, and
other “products of the mind.” The protection of intellectual property is intended to safeguard the
creative product of individuals and to allow the “creators” to profit economically from their work.
This provides an incentive for individuals to go through the demanding process of writing books,
carving a sculpture, producing a film, or developing a computer program.
The framers of the U.S. Constitution appreciated the importance of intellectual property; and
in Article 1, Section 8, Clause 8, Congress was given the power to secure for authors and inven-
tors the exclusive rights to their writings and discoveries for a limited period of time. The federal
government possesses exclusive jurisdiction over civil and criminal actions for the violation of
intellectual property rights.
Federal law provides that the “creator” of an intellectual work is free to sell or license the rights
to his or her intellectual product to other individuals, and under federal law a copyright is pro-
tected for the life of the author plus seventy years.55
The “piracy” of intellectual property both within and outside the United States has increased
in recent years because of the ability of individuals to scan books and films onto the Web and to
send this material across the globe. It is estimated that theft of intellectual property costs the U.S.
economy over $250 billion a year. For example, a pirated film that is sold by traffickers in stolen
intellectual property deprives the movie studio and all of the individuals who worked on the film
of compensation for the pirated copies of the film. Other businesses also suffer because consumers
can view the bootlegged copies of the film without going to a movie theater or renting a copy of
the film.
Copyright
The Copyright Act safeguards books, films, and songs that have been published. An infringement of
a copyrighted work involves reprinting or distributing the work without authorization.56 The “fair
use doctrine” permits limited copying of a work for educational, and other listed purposes.57 You
likely have been in a class in which the instructor relies on the fair use doctrine and makes a small
number of copies of a book available for the class.
Most prosecutions for copyright infringement involve civil actions for damages, although the
piracy of intellectual property is in violation of the criminal law. Title 17 U.S.C. § 506(a) provides
for the criminal punishment of individuals who willfully infringe a copyright for purposes of
“commercial advantage or private financial gain.” The severity of the punishment depends on
the value of the property that is pirated and the number of copies. The reproduction or distribu-
tion during any 180-day period of ten copies of one or more copyrighted works that have a total
retail value of more than $2,500 can result in imprisonment for up to five years as well as a fine.
Congress subsequently provided for the criminal punishment of the recording of the live perfor-
mance of a performer or performers without permission and also prohibits the distribution or
commercial exploitation of such recordings.58
A particularly important criminal provision punishes by up to five years individuals who “traf-
fic” in counterfeit goods by designing a counterfeit label or affixing a counterfeit label to a record-
ing, computer program, motion picture, or other audiovisual work or book or artistic creation.
Criminal penalties also are provided for the fraudulent placement of a copyright notice on an
article, for removal of a copyright notice, and for a false representation of fact in an application
for a copyright.59
In 1997, Congress amended the law to combat file sharing in the No Electronic Theft (NET) Act.
The NET Act provides criminal punishment for the reproduction or distribution of a work carrying
a copyright, even in those instances in which the individual lacks a commercial or financial motive.
The reproduction or distribution of one or more copies of a copyrighted work with a value of more
than $1,000 is a misdemeanor that may be punished by up to one year in prison and a fine of up
to $100,000. An offense involving ten or more copyrighted works that have a total value of more
than $2,500 is subject to punishment of up to five years in prison and a fine of up to $250,000.60
Trademark Fraud
A trademark is a specific word, phrase, symbol, or logo used to label a commercial product and
to distinguish the product from competitors. Think about the logo or slogan associated with your
favorite restaurant, line of clothing or shoes, or computer, or with a memorable phrase identified
with a city or state. The “branding of products” is important because we are inclined to embrace
products that are identified with a particular lifestyle or point of view. Trademarks that are regis-
tered with the U.S. Patent and Trademark Office enjoy nationwide protection. Trademark infringe-
ment legal actions generally are civil matters, although federal law provides criminal penalties for
trademark counterfeiting. An individual who “intentionally traffics or attempts to traffic in goods or

services, and knowingly uses a counterfeit mark on or in connection with such goods or services”
shall be imprisoned not more than ten years and fined not more than $2 million. It also is a crime
to affix a genuine trademark to counterfeit goods.61
THEFT OF TRADE SECRETS

A trade secret is confidential information that a business relies on for a competitive advantage.
The trade secret may involve a drug formula, a computer program, the ingredients of a restaurant’s
signature dish, or the inner workings of machinery or other specialized information. In 2007, a
former Coca-Cola employee was convicted of attempting to sell information from the company
files to a competing company. Foreign countries allegedly have engaged in industrial espionage
and have undertaken a concerted effort to hack into the computers of U.S. businesses in an effort
to obtain valuable trade secrets. In 1996, Congress enacted the Economic Espionage Act (EEA)
that punishes the domestic theft of trade secrets and prohibits the theft of trade secrets by foreign
governments. An individual is criminally liable who “acts with the intent to convert a trade secret
to the economic benefit of anyone other than owner . . . intending or knowing that the offense
will injure any owner of that trade secret.” A related section requires that the individual intend to
benefit a foreign power.62
RACKETEER INFLUENCED AND

CORRUPT ORGANIZATIONS
In 1970, Congress passed the Organized Crime Control Act of 1970. Title IX of the act, RICO
(Racketeer Influenced and Corrupt Organizations), was enacted to counter the infiltration of legit-
imate businesses engaged in interstate commerce by organized crime. Various states have their
own RICO statutes to cover businesses that are not engaged in interstate commerce and that, as
a consequence, do not fall within federal jurisdiction. An individual convicted under the federal
RICO statute is punishable by up to twenty years in prison. This is in addition to the sentence
imposed for any other crimes for which the defendant may be convicted. RICO also provides for
the forfeiture of any money or property acquired as part of the defendant’s racketeering activities.63
The federal RICO statute is complicated, and the requirements of the law are far from clear.
The first step is to define a pattern of racketeering as used in the statute. This requires at least two
specified criminal acts or the collection of an unlawful debt committed within a period of ten
years. These so-called predicate criminal acts may be any of thirty-seven federal offenses or nine seri-
ous state felonies. These two crimes are required to be “related” and to have the “same or similar
purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by
distinguishing characteristics and are not isolated events.”
The second concept that is important in the RICO statute is an enterprise. An enterprise is an
organization, partnership, corporation, association or gang, or unlawful conspiratorial group of
individuals working together with an unlawful purpose.
The next step is to demonstrate a relationship between the pattern of racketeering and an
enterprise engaged in interstate commerce. There are three types of scenarios punished under
RICO, listed below.
1. It is a crime for any person to take income from a pattern of racketeering and use or invest
that income in an enterprise engaged in interstate or foreign commerce. In United States
v. Robertson, the defendant was convicted of a RICO violation for investing proceeds from
illegal narcotics sales in an Alaskan gold mine.64
2. It is a crime for any person to acquire or to maintain control of an enterprise engaged in
interstate or international commerce through racketeering activity. In United States v. Local
560 of the International Brotherhood of Teamsters, the defendants were found to have taken
control of a union organization through extortion and murder.65
3. It is a crime for any person “employed by or associated” with any enterprise engaged in
interstate or international commerce “to conduct or to participate in an enterprise’s affairs
through a pattern of racketeering activity.” This provision is aimed at lower-level employ-
ees or participants in the enterprise. Three defendants in the Tennessee governor’s office
were convicted of conspiring to solicit and to accept bribes for influencing the granting of
pardons and paroles and for delaying the extradition to other states of individuals who had
been convicted or charged with crimes. The “Office of the Governor of Tennessee” was held
to be a RICO enterprise.66
You Decide 10.3 Rajat K. Gupta was con- variety of socially beneficial causes, such as the
victed of securities fraud for pro- Global Fund to Fight AIDS, Tuberculosis and Malaria;
viding inside information to the the Public Health Foundation of India; the Indian
head of the Galleon investment School of Business; the Pratham Foundation (which
firm. Gupta, who formerly was provides quality education to underprivileged children
managing director of the prestigious global consulting in India); the Cornell medical school; the Rockefeller
firm McKinsey, obtained this information as a board Foundation; and many, many other worthy causes. His
member of the investment bank Goldman Sachs, lawyer wrote in the sentencing memorandum submit-
enabling Galleon both to profit and to avoid losses ted to the judge that these activities illustrate Gupta’s
totaling more than $5 million. Gupta was sentenced to “big heart and helping hand,” which he “extended with-
two years in prison and fined $5 million. The sentenc- out fanfare or self-promotion, to all with whom he came
ing judge observed that the evidence before the Court in contact.” Was Gupta’s punishment too lenient or too
established beyond dispute that Gupta had “selflessly harsh? See United States v. Gupta (Sentencing memo-
devoted a huge amount of time and effort” to a wide randum, 2012).
CASE ANALYSIS
In State v. Far West, an Arizona appellate court considered whether to affirm a negligent homicide
against Far West Water & Sewer Inc.
Should Far West Water & Sewer Inc. Be Held Liable for Negligent
Homicide?
State v. Far West Water & Sewer Inc., 228 P.3d 909 (Ariz. App. 2010)
Far West Water & Sewer, Inc. (“Far West”) appeals its Gary Lanser, died in an underground tank after they
convictions and sentences for negligent homicide, were overcome by hydrogen sulfide gas. Another
aggravated assault, two counts of endangerment and Far West employee, Nathan Garrett, suffered severe
violating a safety standard or regulation which caused injuries when he attempted to rescue Gamble from
the death of an employee. the tank. Other Far West and Santec employees were
The charges arose from an incident that occurred involved in rescue attempts, but none was injured to a
on October 24, 2001 at a sewage collection and treat- significant degree.
ment facility owned and operated by Far West, an Far West was indicted for [various charges].
Arizona corporation. At that time, Santec Corporation . . . Far West’s president, Brent Weidman, one of its
(“Santec”) was a subcontractor of Far West. A Far West forepersons, Connie Charles, and Santec were also
employee, James Gamble, and a Santec employee, indicted for the same or similar charges. Santec pled
guilty to one count of violating a safety standard or On appeal, Far West argues there was insufficient
regulation that caused the death of its employee, evidence to support its convictions for the charged
Lanser. It was placed on probation for two years offenses. “Far West owned and operated several waste-
and fined $30,000. Foreperson Connie Charles pled water treatment plants in Yuma. Weidman, who has a
guilty to two counts of endangerment as to Gamble master’s degree in industrial engineering and a Ph.D.
and Garrett and was placed on concurrent one-year in construction engineering, had been Far West’s
terms of probation. president and chief operating officer for nine years.
The jury acquitted Far West of both counts of Rex Noll, who had extensive training and experience
manslaughter as to James Gamble and Gary Lanser, in sewage and wastewater treatment plants, was the
but found it guilty of one count of the lesser-in- supervisor for the sewage division of Far West and
cluded offense of negligent homicide for the death of reported directly to Weidman. Charles was in charge
Gamble, one count of aggravated assault as to Nathan of the sewer crews and was under Noll’s supervision.
Garrett, two counts of endangerment as to Gamble Prior to the incident, Far West acquired the Mesa
and Garrett, and one count of violating a safety stan- Del Oro Plant and hired Santec to renovate equipment
dard or regulation that caused the death of Gamble. in an underground sewage tank called the Mesa Del
The court ordered the sentences suspended and Oro Tank (“the Tank”). The 3,000 gallon tank was
placed Far West on four years’ probation for negligent approximately nine feet underground. The interior
homicide, five years’ probation for aggravated assault of the Tank could only be accessed by descending
and three years’ probation for each count of endanger- down a ladder into a manhole approximately four feet
ment and for violating a safety standard or regulation wide. Two sewer lines fed into the Tank. The gravity
that caused the death of an employee. It ordered some line carried sewage downhill by gravitational force.
terms of probation to run concurrently and others to The force main line carried sewage pumped by force
run consecutively. The court imposed fines and penal- main pumps from another tank or lift station, approx-
ties totaling $1,770,000. imately one mile away.
In 1977, the Arizona legislature enacted A.R.S. § On October 24, 2001, Far West and Santec began
13-305, which permits an enterprise to be held crim- work on the Tank. . . . After the force main pumps
inally liable. An enterprise includes a corporation. at the lift station were shut off, Gamble and Garrett
A.R.S. § 13-105(15)(2001). Section 13-305 provides in pumped out the sewage from the surface and cleaned
relevant part: out the remaining sewage from inside the Tank. As
part of this process, Gamble inserted a plug into the
A. [A]n enterprise commits an offense if: gravity line to stop the flow of sewage. After the Santec
crew finished upgrading the Tank, it was ready to have
1. The conduct constituting the offense con- sewage pumped into it.
sists of a failure to discharge a specific duty Normally, the crew would pull the gravity line
imposed by law; or plug and exit the Tank before turning on the force
2. The conduct undertaken in behalf of the main pump. On this occasion, however, Charles
enterprise and constituting the offense is wanted to turn the force main pumps on first because
engaged in, authorized, solicited, com- she was concerned that the lift station was overflow-
manded or recklessly tolerated by the ing. . . . Charles told Gamble to enter the Tank to pull
directors of the enterprise in any man- out the gravity line plug once the Tank was about half-
ner or by a high managerial agent acting full of sewage. Charles then drove to the lift station,
within the scope of employment. turned on the pumps and sewage began flowing into
the Tank. In a radio communication, Charles asked
Arizona’s criminal code defines “person” as “a Gamble if the Tank was half-full and inquired, “[i]s the
human being and, as the context requires, an enter- plug out yet? Is the plug out yet?” As sewage was flow-
prise, a public or private corporation, an unincorpo- ing into the Tank, Gamble climbed inside the Tank to
rated association, a partnership, a firm, a society, a unplug the gravity line. When the lower part of his
government, a governmental authority or an individ- body was in the Tank, he passed out and fell into the
ual or entity capable of holding a legal or beneficial sewage.
interest in property.” A.R.S. § 13-105(26) (2001). . . . Garrett saw Gamble floating facedown in the
Further, not only did the legislature include corpo- Tank. In an effort to rescue him, Garrett tied a rope
rations in the definition of person, the legislature around his waist, told Andre to hold it and climbed
described how corporations, as enterprises, can com- down a ladder into almost waist-deep sewage. Not
mit criminal offenses through the acts or omissions of able to get Gamble out of the Tank, Garrett tried to
their directors, high managerial agents and/or agents. climb up the ladder but passed out before he reached
A.R.S. § 13-305(A). the top. Lanser then climbed down the manhole in
(Continued)
(Continued)
an attempt to rescue both Gamble and Garrett, passed Weidman posited that the death and injuries occurred
out and fell into the Tank. At some point, Hackbarth due to the toxic gases. Noll admitted that working in
radioed to Charles to turn off the pumps and call 911. underground tanks was unsafe. The State presented
Charles rushed back to the Tank and entered it in an substantial evidence that Weidman and Noll knew
effort to rescue Gamble, Garrett and Lanser. She, too, and understood the OSHA permit-required confined
passed out, but eventually regained consciousness. space regulations. . . .
Dr. Daniel Teitelbaum, a physician specializing in A jury could reasonably conclude that Noll and
occupational medicine and toxicology, and an OSHA Weidman consciously disregarded a substantial and
expert and consultant, concluded that Gamble and unjustifiable risk of death or physical injury by know-
Lanser died from acute hydrogen sulfide poisoning ingly violating OSHA regulations and permitting Far
which occurred in a confined space. . . . Although West employees to enter dangerous, life-threatening
Garrett survived, he suffered life-threatening respira- underground tanks without training, equipment,
tory distress syndrome and aspiration pneumonia and safety measures or rescue capability. A reasonable jury
sustained injuries to his lungs and eyes. could find from this evidence that Weidman and Noll
The State presented substantial evidence that did more than “fail to perceive a substantial and unjus-
Weidman and Noll were high managerial agents of tifiable” risk of death or serious physical injury for
Far West acting within the scope of their authority. purposes of criminal negligence; they acted recklessly
Weidman was President and Chief Operating Officer of by being “aware of” and “consciously disregard[ing]
Far West and a member of the board of directors. Noll a substantial and unjustifiable risk” of death or seri-
was the supervisor for the sewage division of Far West, ous physical injury for purposes of aggravated assault
answered to Weidman and had considerable author- and endangerment; and knowingly violated A.R.S. §
ity over Far West’s employees. He was in charge of Far 23-403 and OSHA regulations for purposes of A.R.S. §
West’s safety program. He and Weidman together for- 23-418(E).
mulated and developed policies and practices of Far The State presented substantial evidence that the
West regarding entry into underground sewage tanks. . . . conduct of Weidman and Noll constituted a gross
A jury could reasonably conclude that Weidman and deviation from the required standard of care and/or
Noll were high managerial agents of Far West and were conduct. Moreover, there was substantial evidence to
acting within the scope of their authority. show that Weidman and Noll engaged in conduct nec-
The State presented substantial evidence that essary to satisfy not only the elements of the criminal
Weidman and Noll were aware of the extreme risks to statutes defining the offenses but also the elements
employees working at Far West. Both were industry necessary to impose enterprise liability on Far West.
professionals with extensive training and experience See A.R.S. § 13-305(A) (“failure to discharge a specific
in sewage treatment plants. They knew the dangers duty imposed by law” and/or conduct undertaken
associated with confined spaces and sewer environ- which constitutes offense and “is engaged in, autho-
ments. They knew about potentially lethal dangers rized, solicited, commanded or recklessly tolerated” by
posed by toxic gases found in underground tanks. directors or high managerial agents).
CHAPTER SUMMARY
Sociologist Edwin H. Sutherland pioneered the con- a business or professional advantage. The definition
cept of white-collar crime, defining this as crime com- notes that white-collar criminals occupy positions of
mitted by an individual of respectability and high responsibility and trust in government, industry, the
social status in the course of his or her occupation. The professions, and civil organizations. In this chapter,
Justice Department, in contrast, focuses on the types we discussed some of the common white-collar crim-
of offenses that constitute white-collar crime as well inal offenses.
as on the economic status of the offender. The Justice Most white-collar crime prosecutions are under-
Department defines white-collar crime as offenses that taken by the federal government. These laws are
employ deceit and concealment rather than the appli- based on the federal authority over interstate and
cation of force to obtain money, property, or service; foreign commerce and other constitutional powers.
to avoid the payment or loss of money; or to secure Environmental crimes threaten the health and natural
resources of the United States and range from air and The Sherman Antitrust Act is intended to ensure
water pollution to the illegal transport and disposal free and competitive markets and declares that it is a
of hazardous waste and pesticides. OSHA protects the crime knowingly to enter into a contract or to form a
health and safety of workers. Willful violations of combination or conspiracy to interfere with interstate
the act that result in death are punished as a misde- commerce. An example is price-fixing.
meanor and may result in both a fine and imprison- Identity theft and access device fraud are two prev-
ment. A modest number of these violations have been alent and costly forms of theft. Identity theft statutes
pursued, and cases are increasingly being referred for typically require that an individual knowingly use the
prosecution. identification of another individual.
The stock market is an important source of invest- A challenge confronting criminal offenders is
ment and retirement income for Americans. Securities to convert money or property obtained from illegal
law is designed to ensure a free and fair market in activity into what individuals can claim to be lawful
order to maintain investor trust and confidence. The income. The federal money laundering statute com-
most active area of prosecution is insider trading, the bats the “washing of money” by declaring that it is
use of information that is not publicly available, to a crime to knowingly conduct a financial transaction
buy and sell stocks. Prosecutions for trading on the involving the proceeds of a crime or to engage in a
basis of inside information are brought against cor- transaction involving property derived from criminal
porate insiders under a theory of “disclose or abate” activity with the intent to conceal the source of the
and against corporate outsiders under a theory of money or property or to promote an illegal enterprise.
“misappropriation.” Currency regulations are a law enforcement
A significant number of white-collar crime pros- tool that is used to limit the ability of individuals
ecutions are undertaken under the federal mail and to deposit money obtained from illicit activities in
wire fraud statutes. The mail fraud statute prohibits the banks and to transfer money into various accounts.
knowing and intentional participation in a scheme or The tax laws provide another set of laws that can be
artifice to defraud money or property, the execution of used against individuals who conceal the source of
which is undertaken through the use of the mail. The their income. These laws cover individuals who fail to
wire fraud statute requires the execution of an artifice report income, take undeserved deductions, or report
or fraud through the use of wires that cross interstate false information on their returns.
or foreign boundaries. The mail or wires need only be Computer crime has posed a challenge for the
used incident to an essential aspect of the scheme. A criminal law because historically statutes were con-
conspiracy to commit either of these offenses requires cerned with tangible property rather than with intan-
that the use of mail or wires will naturally occur in the gible property, like information or data. The federal
course of the scheme or was reasonably foreseeable, government and states have adopted cybercrime stat-
although not actually intended. utes that address a broad range of computer-related
The Travel Act is intended to assist state and local offenses such as computer fraud, computer hacking,
governments in combating organized crime and is computer trespassing, and spam.
directed at what ordinarily are considered the status The Copyright Act safeguards the rights of authors
offenses of illegal gambling, the shipment and sale of in books, films, and songs that have been published.
alcohol and controlled substances, extortion, bribery, An infringement of the copyright of a work involves
arson, prostitution, and money laundering. This law reprinting or distributing the work without authori-
punishes interstate or foreign travel or the use of the zation. Trademarks that are registered with the U.S.
mail or any facility in interstate or foreign commerce Patent and Trademark Office enjoy nationwide pro-
with the intent to distribute the proceeds of one of tection. Trademark infringement generally is a civil
the unlawful activities listed in the statute, to commit matter, although federal law provides criminal pen-
a crime of violence, or to commit a crime listed in the alties for trademark counterfeiting. In 1996, Congress
Travel Act. The law requires that a defendant there- enacted the Economic Espionage Act, which punishes
after attempts to commit or does commit a criminal the domestic theft of trade secrets and prohibits the
offense. theft of trade secrets by foreign governments.
Health fraud is an increasingly frequent and seri- RICO has provided a strategy for countering the
ous area of criminal activity. The federal health fraud infiltration of private industry and public institutions
statute addresses frauds against health insurance pro- by criminal gangs.
grams or the fraudulent obtaining of money or prop- In thinking about this chapter, consider whether
erty from a health care benefit program. This typically sufficient attention is paid to the investigation and
involves claims by doctors to be reimbursed for unnec- prosecution of white-collar crime. Would you punish
essary medical care or for medical care that was never white-collar criminals more or less severely than other
provided. offenders?
1. What are the various approaches to defining 9. Discuss the purpose of the Sherman Antitrust Act.
white-collar crime? Give an example of an antitrust violation.
2. Should corporations be held criminally liable for 10. What are the elements of identity theft?
white-collar crime?
11. Describe access device fraud.
3. List some of the acts that are considered environ-
12. Discuss the purpose of laws against money laun-
mental crimes.
dering and explain what is involved in money
4. What is the purpose of criminal prosecutions laundering.
under OSHA?
13. Outline currency violations.
5. Define insider trading. Why is insider trading
14. What acts constitute tax crimes?
considered a crime?
15. Describe the purpose of criminal laws against the
6. What are the elements of mail and wire fraud?
theft of intellectual property, trademarks, and
How do they differ from one another?
trade secrets.
7. Discuss the purpose of the Travel Act.
16. Should the government place a greater emphasis
8. What areas are covered under the 1996 federal on prosecuting white-collar crime? Do you believe
health care fraud act? that white-collar criminals should receive harsh
prison sentences?
LEGAL TERMINOLOGY
access device fraud health care fraud RICO

computer crime identity theft Sarbanes-Oxley Act
copyright insider trading Sherman (Antitrust) Act of 1890
corporate liability intellectual property tippees
corporate murder mail fraud tippers
cybercrime misappropriation doctrine trade secret
disclose or abstain doctrine money laundering trademark
environmental crimes nolo contendere Travel Act
fiduciary relationship Occupational Safety and Health white-collar crime
Act (OSHA)
fraud wire fraud
pump and dump

CRIMES AGAINST PUBLIC
11 ORDER AND MOR ALIT Y
Was Whatley guilty of appearing in a

state of nudity in public? 2. Understand the elements of disorderly conduct
and the types of acts punished by the crime of
Whatley is an independent operator who owns a semi-trailer disorderly conduct.
truck equipped with a sleeping berth. Whatley was driving
his semi northbound on Interstate 65 when he pulled into 3. Distinguish the crime of riot from the crime of
a weigh station. . . . A state police motor carrier inspector disorderly conduct.
approached the semi to check whether the driver was wear-
4. Understand crimes against the quality of life
ing a seat belt or in possession of firearms, or drugs. . . .
Whatley was completely nude . . . [and stated] he was in and the broken windows theory.
too big a hurry to get dressed. Ind. Code § 35-45-4-1(a) pro- 5. Know the types of laws that regulate the driving
vides in pertinent: “[a] person who knowingly or intention-
of motor vehicles.
ally, in a public place: (1) engages in sexual intercourse;
(2) engages in deviate sexual conduct; (3) appears in a 6. Discuss vagrancy and loitering and the use of
state of nudity; or (4) fondles the person’s genitals or the the law to regulate homelessness.
genitals of another person; commits public indecency. . . .
Characterizing his truck as a “home on wheels” Whatley 7. Understand the debate on the overreach of
argues that he was not in a public place. (Whatley v. State, criminal law.
36A05-9806-CR-307 [Ind. Ct. App. 1999])
8. Know the definition of the crime of prostitution
In this chapter, learn about crimes against public order
and various crimes related to prostitution.
and morality.
9. Understand the definition of obscenity and
the difference between obscenity and child
Learning Objectives pornography.
10. Discuss the reason for the crime of cruelty to

1. Know the definition of crimes against public
animals.
order and morality.
INTRODUCTION
You undoubtedly have been walking down the street or she might even have followed you down the street
and have been approached by a “panhandler” asking or blocked the sidewalk. You may have felt that your
for money in an annoying or aggressive manner. He “personal space” was invaded or that you were being
271
personally assaulted and might have vowed to avoid walking down this particular street again.
Although you did not suffer physical harm, you may have developed a sense of insecurity or even
fear. Did the panhandler in this example commit a crime or merely exercise his or her freedom of
speech and assembly?
Crimes against public order and morality are intended to ensure that individuals walk-
ing on sidewalks, traveling on the streets, or enjoying the public parks and facilities are free from
harassment, fear, threat, and alarm. This category of crime includes a large number of seemingly
unrelated offenses that threaten the public peace, quiet, and tranquility. The challenge presented
by these offenses is to balance public order and morality with the right of individuals to exercise
their civil liberties.
A prime example of a crime against public order is individual disorderly conduct. This broadly
defined offense involves acts that create public inconvenience and annoyance by directly threat-
ening individuals’ sense of physical safety. Disorderly conduct entails offenses ranging from inten-
tionally blocking the sidewalk and acting in an abusive and threatening manner to discharging a
firearm in public. Group disorderly conduct (riot) entails tumultuous or violent conduct by three
or more persons. Another set of laws is designed to ensure road safety and security by regulating
motor vehicles.
A second category of crimes against public order and morality covered in this chapter includes
offenses against the public order that threaten the order and stability of a neighborhood. We focus
on two so-called quality-of-life crimes. At common law, vagrancy was defined as moving through
the community with no visible means of support. Loitering at common law was defined as idly
standing on the corner or sidewalk in a manner that causes people to feel a sense of threat or
alarm for their safety. These broad vagrancy and loitering statutes historically have been employed
to detain and keep “undesirables” off the streets. The U.S. Supreme Court in recent years has
consistently found these laws void for vagueness and unconstitutional. The same constitutional
arguments are being used today to challenge ordinances directed against the homeless and gangs.
The second section of the chapter on crimes against public order and morality examines the
overreach of the criminal law or so-called victimless crimes. These are offenses against morality.
The individuals who voluntarily engage in victimless crimes typically do not view their involve-
ment as harmful to themselves or to others. We initially center our discussion of victimless crimes
on prostitution and soliciting for prostitution. The next section on victimless crimes examines
whether the prohibition on obscenity should be extended to violent video games that are thought
to harm children or whether these games are protected under the First Amendment to the U.S.
Constitution. We conclude our discussion of crimes against public order and morality by examin-
ing the use of the criminal law to protect domestic animals.
In this chapter, several issues arise. Ask yourself whether the statutes punishing crimes against
public order and morality are, at times, employed to target certain undesirable individuals in order
to keep them off the streets rather than to protect society. Are some of these laws so broadly drafted
that the police are provided with an unreasonable degree of discretion in determining whether to
arrest individuals? Last, consider whether the criminal law reaches too far in punishing so-called
victimless crimes. The overriding question is whether the enforcement of offenses against public
order and morality is required in order to maintain social order and stability.
DISORDERLY CONDUCT
The common law punished a breach of the peace. This was defined as an act that disturbs or
tends to disturb the tranquility of the citizenry. The great common law eighteenth-century com-
mentator William Blackstone notes that breaches of the peace included both acts that actually
disrupted the social order, such as fighting in public, and what he terms constructive breaches of
the peace or conduct that is reasonably likely to provoke or to excite others to disrupt social order.
Blackstone cites as examples of constructive breaches of the peace both the circulation of material
causing a person to be subjected to public ridicule or contempt and the issuing of a challenge to
another person to fight.1
The common law crime of breach of the peace constitutes the foundation for U.S. state stat-
utes punishing disorderly conduct. An example of a statutory definition of the misdemeanor
CHAPTER 11 Crimes Against Public Order and Morality 273
of disorderly conduct is the Wisconsin law that punishes anyone who, “in a public or private
place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise
disorderly conduct under circumstances in which the conduct tends to cause or provoke a distur-
bance.”2 Other statutes specify the conduct constituting disorderly conduct. The Illinois statute
defines disorderly conduct as any act knowingly committed in an unreasonable manner so as to
“alarm or disturb another and to provoke a breach of the peace.” The Illinois law then elaborates
on this definition and lists specific acts that constitute a breach of the public peace, including a
false fire alarm or false report of criminal activity to the police, a false report of an explosive device,
a false report of child or elder abuse, and an annoying or intimidating telephone call made to
collect a debt.3 The Arizona statute requires an act committed with a specific intent to disturb the
peace or quiet of a neighborhood, family, or person or committed with the knowledge that it is
disturbing the peace, including fighting, unreasonable noise, use of abusive or offensive language
to any person likely to cause retaliation, commotion intended to prevent a meeting or procession,
refusal to obey a lawful order to disperse, and recklessly handling, displaying, or discharging a
deadly weapon or dangerous instrument.4
We can see that the mens rea of the Illinois statute is knowingly, while the mens rea of the
Arizona statute is an intentional or knowing intent. Other state statutes extend disorderly
conduct to include the reckless disturbance of the peace. The Illinois and Arizona statutes
differ in one other respect. The Arizona law covers acts intended to disturb or that knowingly
disturb the peace or quiet of a neighborhood, family, or person, while the Illinois statute is
generally directed at threats or acts that alarm the community. The commentary to the Model
Penal Code (MPC) notes that defining disturbing the peace to include disturbing individuals
authorizes the police to intervene and arrest individuals whose playing of their radio or televi-
sion is considered unreasonably loud by their next-door neighbor. Disorderly conduct is a misde-
meanor, although some states punish as felonies acts that create or threaten to create a significant
disturbance.
As you can see, a broad range of conduct is punished under disorderly conduct statutes. For
instance, a parent was convicted of disorderly conduct who loudly and aggressively disputed a ref-
eree’s decision at his son’s football game, refused the referee’s request to leave the stadium, swore
at spectators, placed his hands on the referee, and caused a halt in the game. A Minnesota court
of appeals ruled that the parent’s profanity combined with his aggressive acts caused anxiety and
concern to the spectators and referees and constituted disorderly conduct.5 How does the court
know that the defendant’s behavior “disturbed the peace”? Do people assume the risk that they
will be subjected to emotional outbursts by spectators attending a football game? In an Illinois
case, a defendant who declared to ticketing agents at the airport that he had a bomb in his shoe
was sentenced to more than six months in prison. An appellate court affirmed the defendant’s
conviction for transmitting a false alarm relating to a bomb or other explosive device. The court
noted that disorderly conduct under Illinois law requires only the uttering of a threat regardless
of the response of other individuals. The court explained this strict standard by observing that the
defendant must have known that there was a strong probability that the threat of a bomb in an
airport would “cause alarm and mass disruption.”6
Another challenge that is frequently presented by prosecutions for disorderly conduct is draw-
ing the line between disorderly conduct and constitutionally protected speech. The Wisconsin
Supreme Court affirmed that the statement by a thirteen-year-old that he was going to kill every-
one at his school and make people suffer constituted disorderly conduct. The court explained
that speech alone could constitute disorderly conduct where “a reasonable speaker . . . would fore-
see that reasonable listeners would interpret his statements as serious expressions of an intent to
intimidate or inflict bodily harm.”7
Disorderly conduct addresses relatively minor acts of criminality. Nevertheless, the commen-
tary to the MPC stresses that this is an important area because disorderly conduct statutes affect a
large number of defendants. Arrests for disorderly conduct in a given year are generally equal to
the number arrested for all violent crimes combined. Thus, the enforcement of disorderly conduct
statutes is critical in shaping public perceptions as to the fairness of the criminal justice system. A
final point is that the concern of Americans with balancing crime control with civil liberties dic-
tates that we take the time to consider whether disorderly conduct statutes intrude upon the rights
of individuals and are in need of reform.
Model Penal Code

Section 250.2. Disorderly Conduct
(1) A person is guilty of disorderly conduct if, with purpose to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk thereof, he
(a) engages in fighting or threatening, or in violent or tumultuous behavior; or
(b) makes unreasonable noise or offensively coarse utterances, gesture or display, or
addresses abusive language to any person present; or
(c) creates a hazardous or physically offensive condition by any act which serves no legit-
imate purpose of the actor.
“Public” means affecting or likely to affect persons in a place to which the public
or substantial group has access; among the places included are highways, transport
facilities, schools, prisons, apartment houses, places of business or amusement, or any
neighborhood.
(2) An offense under this section is a petty misdemeanor if the actor’s purpose is to cause
substantial harm or serious inconvenience, or if he persists in disorderly conduct after
reasonable warning or request to desist. Otherwise disorderly conduct is a violation [sub-
ject to a fine].
Analysis
•• The MPC limits disorderly conduct to specific acts likely to create what the code terms a
public nuisance. The commentary notes that the proposed statute does not include conduct
tending to corrupt or to annoy other individuals.
•• The act must be committed with the purpose to cause public inconvenience, annoyance, or
alarm or recklessly creating a risk thereof. Guilt cannot be based on the argument that an
individual should have foreseen the risk of public annoyance or alarm; “nothing less than
conscious disregard of a substantial and justifiable risk of public nuisance will suffice for
liability. Conviction cannot be had merely on proof that the actor should have foreseen the
risk of public annoyance or alarm.”
•• Disorderly conduct is directed at disturbing the peace and quiet of the community. The code
excludes family disputes within the home.
•• The section limits imprisonment to circumstances in which an individual’s purpose is to
cause significant harm or serious inconvenience or in which an individual continues the
crime despite warnings or requests to halt.
•• The MPC also includes specific sections on the abuse of a corpse; cruelty to animals; desecra-
tion of graves, monuments, and places of worship; disruption of meetings and processions;
false public alarms; harassment; loitering or prowling; obstructing highways or other public
passages and processions; public drunkenness; unlawful eavesdropping; surveillance; and
breaching the privacy of messages.
You Decide 11.1 Sergeant Loran Baker testi- some hand signs.” Baker was particularly concerned
fied that on November 19, 2009, about this activity because a sixteen-year-old had been
at 12:30 p.m., he was driving stabbed to death “where the same kind of exchange
slowly on Laurel Street near down- was occurring” just a month earlier in the same vicinity.
town Santa Cruz, California. He Baker “couldn’t tell if” the hand signs being made
was in plain clothes and driving an unmarked car. Baker by Cesar and Antonio were directed at “a car or some-
spotted sixteen-year-old Cesar and seventeen-year-old body on the [other side of the] street,” but he saw
Antonio walking along the sidewalk. Their attention was that “their gestures . . . seemed to be getting more
“directed towards the traffic and [they were] making aggressive and [they were] moving towards them like
they were challenging them to fight. I realized then, hey, a fight was unlikely to occur because “typically there
this is for real, and they are challenging somebody.” won’t be a gang fight when the girl was present.”
Since their behavior was “aggressive,” Baker could tell Antonio acknowledged that he was aware that his
that they were not “fooling around.” Cesar and Antonio conduct had occurred in an area “where Norteños and
“changed directions” and “were moving towards the Sureños would actually cross paths and it would be not
street.” Cesar and Antonio put their hands up in the good.” Antonio also admitted that the blue “swoosh”
air while taking “a few steps towards the cars like, on the Nike shoes he was wearing was intended to
hey, let’s go,” a gesture that Baker “took as a chal- “signify” his Sureño affiliation.
lenge.” They “held their arms up in an inviting manner,” Cesar maintained that he “was just holding his
which was “like, hey, it’s on, you’re open to somebody ground and not trying to challenge the occupants” of
approaching you.” the Cadillac.
Baker was concerned that violence would develop, The prosecution’s gang expert testified that a ges-
so he “did a U-turn in traffic,” drove up behind Cesar ture of putting one’s hands up in the air would be seen
and Antonio, activated his lights, called for backup, as “challenging the other person.” He also opined that
and told Cesar and Antonio to “wait right there.” the “common response” to someone making a gang
Antonio told Baker that he had “been using hand sig- sign is violence. The expert testified that there was “no
nals to display a gang slogan . . . towards a car.” He other reason” for a person to make a gang sign besides
told Baker that “one of the occupants in the rear seat “challenging them to fight.” The presence of a girl would
[of the Cadillac] had actually thrown him a four, mean- not eliminate the risk of violence in such a situation.
ing Norteño sign,” which would identify that person The gang expert testified that the Poor Side Chicos
as a Norteño gang member. Antonio told Baker that gang would benefit from a challenge such as that made
he had made signs for P, S, and C to signify the Poor by Cesar and Antonio because “[i]t would further the
Side Chicos, a Watsonville Sureño gang. The Poor violent reputation” of the gang “within the community.”
Side Chicos gang consists of the “younger members” California Penal Code Section 415, Subdivision
of the Poor Side Gang. Poor Side Chicos, like other (1) provides that “[a]ny person who unlawfully fights
Sureño gangs, associate with the color blue and the in a public place or challenges another person in a
number thirteen. Poor Side Chicos members “hate” public place to fight” commits a misdemeanor. Antonio
Norteños. and Cesar assert that their conduct was not a “chal-
Antonio asserted that he “took it [the occupant’s lenge . . . to fight” because they were merely respond-
alleged sign] as being a challenge, a form of disrespect.” ing to a gang sign displayed by an occupant of a white
He said he was “not really afraid because . . . there Cadillac. Are they guilty of a challenge to fight? See In
was a girl in the car.” Antonio told Baker that he thought re Cesar, 192 Cal. App. 4th 989 (2011).
RIOT
The common law punished group disorderly conduct as a misdemeanor. An unlawful assembly
was defined as the assembling of three or more persons with the purpose to engage in an unlawful
act. Taking steps toward the accomplishment of this common illegal purpose was punished as a
rout. The law recognized a riot where three or more individuals engaged in an unlawful act of
violence. The participants must have agreed to the illegal purpose prior to engaging in violence.
However, the individuals were not required to enter into a common agreement to commit an ille-
gal act prior to the assembly; the illegal purpose could develop during the course of the meeting.
The English Riot Act of 1549 punished as a felony an assembly of twelve or more persons gathered
together with an unlawful design that failed to obey an order to disperse within one hour of the
issuance of the order to disband. The Riot Act was reintroduced in 1714. You may be interested to
know that it is the reading of the act to an assembly that constitutes the basis of the popular phrase
“reading the riot act.”8
The American colonists were understandably reluctant to adopt a British statute that had been
employed by the English Crown to punish people who gathered for purposes of political protest.
However, all the states eventually adopted riot laws loosely based on the English statute. These
laws continue to remain in force and, in effect, punish group disorderly conduct.
Why is there a separate offense of riot? After all, we could merely punish riot as aggravated
disorderly conduct. A group has a mind of its own and both poses a greater threat to society
and is less easily deterred than a single individual. Collective action also presents a problem for
the police, who may have to resort to aggressive force to control the crowd. Courts have recog-
nized that a clear distinction must be made between riots and the right of individuals to freely
assemble to petition the government for the redress of grievances. In 1949, the U.S. Supreme
Court upheld the constitutionality of an Arkansas riot statute, holding that it did not abridge
free speech or assembly for the “state to fasten themselves upon one who has actively and con-
sciously assisted” in the “promoting, encouraging and aiding of an assembly the purpose of
which is to wreak violence.”9
Under a New York statute, an individual is guilty of misdemeanor riot when, with four other
persons, he or she engages in “tumultuous and violent conduct” and thereby “intentionally or
recklessly causes or creates a grave risk of causing public alarm.” The New York statutory scheme
punishes riot as a felony when a group of ten or more persons engages in “tumultuous and violent
conduct and thereby intentionally or recklessly causes or creates a grave risk of causing public alarm”
and a person other than one of the participants suffers “physical injury or substantial property dam-
age.” What is the difference between misdemeanor and felony riot under the New York statute?10
New York also punishes the misdemeanor of unlawful assembly. An unlawful assembly is
defined as the assembly of an individual with four or more others for the purpose of engaging or
preparing to engage with them in “tumultuous and violent conduct likely to cause public alarm, or
when, being present at an assembly which either has or develops such a purpose, he remains there
with intent to advance that purpose.” How does this differ from a riot? New York punishes incite-
ment to riot when an individual “urges ten or more persons to engage in tumultuous and violent
conduct of a kind likely to create public alarm.”11 Other states provide criminal penalties for the
English statutory crime of a knowing failure to obey an order to disperse. An Ohio statute punishes
five or more persons engaged in a course of disorderly conduct “who knowingly fail to obey an
order to disperse where there are other persons in the vicinity whose presence creates the likelihood
of physical harm to persons or property or of serious public inconvenience, annoyance, or alarm.”12
Riot statutes are typically used when a conspiracy or accessoryship cannot be easily applied. The
Utah riot statute provides that an individual is guilty of riot if “he assembles with two or more other
persons with the purpose of engaging, soon thereafter, in tumultuous or violent conduct, knowing
that two or more other persons in the assembly have the same purpose.” In J.B.A. v. State, a Utah
appellate court convicted a juvenile of riot and held him to be a delinquent. J.B.A. was determined
to have been aware that his friends were collecting weapons and preparing to return to school to
“settle some differences.” The defendant voluntarily stood as part of a show of force in support of
his friends as they fought with members of a rival group. The Utah court noted that J.B.A. was not
an uninterested bystander and that he would have been expected to intervene in the event that his
friends were in jeopardy of losing the fight.13 Does this situation fit your conception of participation
in a riot? Why not merely punish this as conspiracy or as aiding and abetting disorderly conduct?
Model Penal Code

Section 250.1. Riot; Failure to Disperse
(1) A person is guilty of riot, a felony of the third degree, if he participates with two or more
others in a course of disorderly conduct:
(a) with purpose to commit or facilitate the commission of a felony or misdemeanor;
(b) with purpose to prevent or coerce official action; or
(c) when the actor or any other participant to the knowledge of the actor uses or plans to
use a firearm or other deadly weapon.
(2) Where three or more persons are participating in a course of disorderly conduct likely to
cause substantial harm or serious inconvenience, annoyance or alarm, a peace officer or
other public servant engaged in executing or enforcing the law may order the participants
and others in the immediate vicinity to disperse. A person who refuses or knowingly fails
to obey such an order commits a misdemeanor.
Analysis
•• The MPC requires that an individual participate together with two or more other persons in
a course of disorderly conduct with the required purpose or knowledge. It is not sufficient
that an individual was present at the assembly or disturbance.
•• The MPC also punishes a failure to disperse.
MOTOR VEHICLE VIOLATIONS

States and many local jurisdictions have a wide range of statutes regulating motor vehicles. These
laws regulate activities such as parking; speeding; drag racing; failure to obey traffic signals, yield
the right of way, signal a change of lanes, or signal a turn; driving with a revoked license or with
malfunctioning equipment; and drunk driving. Most of these are strict liability laws, and there is
no requirement to prove a criminal intent. The traffic laws in the United States are fairly uniform.
Most states have adopted the provisions of the Uniform Vehicle Code, which was formulated by a
group of experts whose goal was to create a single standard for regulating motor vehicles.
A violation of the traffic laws, until relatively recently, was treated as a criminal offense. The
driver was arrested, incarcerated, and required to post bond to obtain his or her release from jail.
In the past several decades, minor traffic violations have been decriminalized. They are considered
civil infractions rather than criminal misdemeanors and are tried before a judge rather than before a
jury. Violations are punished by fines and by suspension of a driver’s license. A traffic violation also
results in the accumulation of points on a driver’s record, and the accumulation of a designated
number of points results in suspension of a driver’s license.
Serious traffic violations such as driving while under the influence of alcohol, reckless driving,
and fleeing an officer generally are punished as misdemeanors, which result in the arrest of the
driver. Individuals who are arrested will be taken into custody, incarcerated until released on bail,
and subjected to a search of their person and perhaps their automobile. A search may lead to the
seizure of unlawful narcotics and firearms and to additional criminal charges.
Keep in mind that the U.S. Supreme Court in Atwater v. Lago Vista held that states possess the
right to provide a police officer with the discretion either to issue a citation or to conduct a custo-
dial arrest for a violation of a minor traffic violation. The Court, as a result, affirmed the arrest of
Gail Atwater for a failure to wear a seat belt, an offense punishable by a fine, which did not carry
a jail sentence.14
A new area of legislation is distracted driving, which involves acts that divert a driver’s
attention. This includes eating, drinking, adjusting the radio, and glancing at the newspaper.
The two most dangerous examples of distracted driving are talking on a cell phone while driv-
ing and texting while driving. The National Highway Traffic Safety Administration (NHTSA) con-
cludes that 80 percent of accidents and 16 percent of highway deaths result from distracted drivers.
It is estimated that 1.6 million crashes (25 percent) are due to cell phone use and another 1 million
(18 percent) are due to texting. The U.S. Department of Transportation concludes that reaching for
a phone distracts a driver for 4.6 seconds, during which time the automobile will travel a distance
equivalent to the length of a football field if the driver is traveling fifty-five miles per hour. Texting
while driving increases the risk of an auto accident by twenty-three times.
Keep this material in mind when you read about driving while impaired by alcohol in Chapter 12.
PUBLIC INDECENCIES: QUALITY-OF-LIFE CRIMES

Criminal law texts traditionally devote very little attention to public indecencies. These offenses
include public drunkenness, vagrancy, loitering, panhandling, graffiti, and urinating and sleeping
in public. A significant number of arrests and prosecutions are devoted to these crimes against
the quality of life; but for the most part, they receive limited attention because they are mis-
demeanors, are swiftly disposed of in summary trials before local judges, and disproportionately
target young people, minorities, and individuals from lower socioeconomic backgrounds.
In the 1980s, scholars began to argue that seemingly unimportant offenses against the
public order and morals were key to understanding why some neighborhoods bred crime and
hopelessness while other areas prospered. This so-called broken windows theory is identified
with criminologists James Q. Wilson and George Kelling. Why the name broken windows? Wilson
and Kelling argue that if one window in a building is broken and left unrepaired, this sends a
signal that no one cares about the house and that soon every window will be broken. The same
process of decay is at work in a neighborhood. A home is abandoned, weeds sprout, the windows
are smashed, and graffiti is sprayed on the building. Rowdy teenagers, drunks, and drug addicts are
drawn to the abandoned structure and surrounding street. Residents find themselves confronting
panhandlers, drunks, and addicts and develop apprehension about walking down the street. They
flee the area as property values drop and businesses desert the community. The neighborhood now
has reached a tipping point and is at risk of spiraling into a downward cycle of crime, prostitution,
drugs, and gangs. The solution, according to Wilson and Kelling, is to address small concerns
before they develop into large-scale crimes.15
We can question, along with some researchers, whether small incidents of disorder inevitably
lead to petty crime, then to serious offenses, and finally to neighborhood decay. Nevertheless, sur-
veys indicate that most people are more concerned with the immediate threat to their quality of
life posed by rowdy juveniles, drug dealers, prostitutes, and public drunkenness than they are with
the more distant threats of rape, robbery, and murder.
A central focus of the broken windows theory in cities where it has been adopted is combating
vagrancy and loitering.
VAGRANCY AND LOITERING

Vagrancy is defined under the common law as wandering the streets with no apparent means
of earning a living (without visible means of support). Loitering is a related offense defined as
standing in public with no apparent purpose.
Vagrancy can be traced to laws passed in England as early as the thirteenth century. The early
vagrancy statutes were passed in reaction to the end of the feudal system and required the vast
army of individuals wandering the countryside to seek employment. These same laws were relied
on during the labor shortage resulting from the Black Death in the fourteenth century to force
individuals into the labor market. There was also the fear that these bands of men might loiter or
gather together to engage in crime or rebellion.
The Ordinance of Labourers of 1349 authorized the imprisonment of males under sixty with-
out means of financial support who refused to work. The Vagabonds Act of 1530 stipulated that
an impotent beggar who wandered from home and was engaged in begging was to be whipped or
placed in stocks for three days and nights on bread and water. Able-bodied but unemployed wan-
derers were later subjected to harsh penalties, including branding and slicing off portions of the
ear. Another provision stated that any person found begging or wandering shall be “stripped naked
from the middle upwards, and be openly whipped until his or her body be bloody.” An English law
in force in the second half of the nineteenth century divided vagrants into three criminal classes:
idle and disorderly persons (people who refuse to work), rogues and vagabonds (wanderers), and
incorrigible rogues (repeat offenders).16 This descriptive language eventually found its way into the
texts of U.S. statutes.
Statutes punishing vagrancy were adopted in virtually every U.S. state. These laws typically
punished a broad range of behavior, including wandering or loitering, living without employment
and having no visible means of support, begging, failing to support a wife and child, and sleep-
ing outdoors. Individuals were also punished for their status or lifestyle. Laws, for instance, con-
demned and categorized as criminal prostitutes, drunkards, gamblers, gypsies engaged in telling
fortunes, nightwalkers, corrupt persons, and individuals associating with thieves.17
The fear and distrust of the poor and unemployed led the U.S. Supreme Court to observe,
in reference to an 1837 effort by New York City to prevent the inflow of the poor, that it is as
necessary for a “state to provide precautionary measures against the moral pestilence of paupers,
vagabonds, and possibly convicts; as it is to guard against the physical pestilence, which may arise
from unsound and infectious articles imported or from a ship, the crew of which may be laboring
under an infectious disease.”18
By 1941, the U.S. Supreme Court had adopted a more sympathetic attitude toward the poor.
California passed a statute in the early twentieth century preventing the influx of indigents. This
was an unapologetic effort to limit budgetary expenditures for the poor and to prevent the intro-
duction into the state of disease, rape, incest, and labor unrest. The Supreme Court criticized
California and observed that it now was recognized in an industrial society that “the relief of the
needy has become the common responsibility and concern of the whole nation” and that “we do
not think it will now be seriously contended that because a person is without employment and
without funds he constitutes a ‘moral pestilence.’ Poverty and immorality are not synonymous.”
Justice Robert Jackson added that it is contrary to the history and tradition of the United States
to make an individual’s rights dependent on his or her economic status, race, creed, or color. As
Justice William O. Douglas noted, to hold a law constitutional that prevented those labeled as
“indigents, paupers, or vagabonds” from seeking “new horizons” in California would be to reduce
these individuals to an “inferior class of citizenship.”19
In 1972, in the case of Papachristou v. City of Jacksonville, the U.S. Supreme Court held a
Jacksonville, Florida, ordinance unconstitutional that authorized the arrest of vagrants. This was a
typical statute that classified a wide range of individuals as vagrants, including rogues; vagabonds;
dissolute persons who go about begging; common gamblers; persons who use juggling or unlawful
games; common drunkards; nightwalkers; pilferers or pickpockets; keepers of gambling places;
common brawlers; habitual loafers; persons frequenting houses of ill fame, gambling houses, and
places where alcoholic beverages are sold; and individuals living on the earnings of their wives or
minor children.20
The U.S. Supreme Court ruled that the statute was void for vagueness in that it failed to give a
person of ordinary intelligence fair notice of the conduct prohibited by the statute and encouraged
the police to engage in arbitrary and erratic arrests and convictions. The Court explained that the
true evil in the law was its employment by the police to target the young, the poor, and minorities.
The “rule of law, evenly applied to minorities as well as majorities, to the poor as well as the rich,
is the great mucilage that holds society together.”
Eleven years later, in Kolender v. Lawson, the U.S. Supreme Court ruled a California loitering
statute unconstitutional that authorized the arrest of persons who loiter or wander on the streets
and who fail to provide “credible and reliable” identification and to “account for their presence.”
The lack of a clear statement of what constitutes credible and reliable identification, according to
the Court majority, left citizens uncertain how to satisfy the letter of the law and empowered the
police to enforce the law in accordance with their individual biases and discretion.21
States now have amended their vagrancy and loitering statutes and have followed the MPC in
punishing loitering or prowling under specific circumstances that “warrant alarm for the safety of
persons or property.”
Model Penal Code

Section 250.6. Loitering or Prowling
A person commits a violation if he loiters or prowls in a place, at a time, or in a manner not
usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons
or property in the vicinity. Among the circumstances which may be considered in determining
whether such alarm is warranted is the fact that the actor takes flight upon appearance of a peace
officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless
flight by the actor or other circumstance makes it impracticable, a peace officer shall prior to any
arrest for an offense under this section afford the actor an opportunity to dispel any alarm which
would otherwise be warranted, by requesting him to identify himself and explain his presence and
conduct. No person shall be convicted of an offense under this Section if the peace officer did not
comply with the preceding sentence, if it appears at trial that the explanation given by the actor
was true and, if believed by the peace officer at the time, would have dispelled the alarm.
HOMELESSNESS
City and local governments have increasingly relied on municipal ordinances to stem the tide
of a growing homeless population. The National Law Center on Homelessness and Poverty and
the National Coalition for the Homeless issued a report in 2009 titled Homes Not Handcuffs: The
Criminalization of Homelessness in U.S. Cities that documents the increase and enforcement of laws
prohibiting urban camping, sleeping in the parks and subways, aggressive panhandling, trespass-
ing in areas under bridges and adjacent to parks, and blocking sidewalks. The report also finds laws
against loitering, jaywalking, and open alcoholic containers. Several cities also prohibit charities,
churches, and other organizations from serving food to the needy outside designated areas. The
report concludes that these local ordinances have the effect of making it a crime to be home-
less. The National Coalition for the Homeless singles out the ten “meanest cities” toward the
homeless. These cities are Los Angeles, California; St. Petersburg, Florida; Orlando, Florida; Atlanta,
Georgia; Gainesville, Florida; Kalamazoo, Michigan; San Francisco, California; Honolulu, Hawaii;
Bradenton, Florida; and Berkeley, California. A survey of 187 cities published in 2014 found a con-
tinued increase in laws criminalizing homelessness.
In 1992, in Pottinger v. City of Miami, a federal district court ruled that the Miami police had
employed the criminal law for the purpose of “eliminating or eradicating the presence of the
homeless” or for “getting the homeless to move out of certain locations.” One component of this
strategy was to starve the homeless by preventing them from congregating in areas where pantries
made free food available. The federal court found that the evidence supported the complainants’
assertion that “there is no public place where they can perform basic, essential acts such as sleeping
without the possibility of being arrested” and issued a judicial order directing the Miami police to
halt this abuse of the criminal law. Another troubling trend is random violence by groups of young
people against the homeless.22
A more typical decision is Joyce v. City and County of San Francisco, in which a federal district
court refused to issue an injunction to halt San Francisco’s enforcement of the Matrix Program on
the grounds that the homeless plaintiffs were unlikely to be successful in constitutionally challeng-
ing the program. The Matrix Program was intended to combat the growing homeless population
in San Francisco by stringently enforcing a number of criminal laws including “public drinking
and inebriation; obstruction of sidewalks; lodging, camping, or sleeping in public parks; littering;
public urination and defecation; aggressive panhandling; dumping of refuse; graffiti; vandalism;
street prostitution; and street sales of narcotics.”23
A number of jurisdictions have adopted ordinances prohibiting street begging or panhandling.
The Second Circuit Court of Appeals, in Loper v. New York City Police Department, held that a statute
that prohibited all panhandling on city sidewalks and streets violated the First Amendment.24
The City of Indianapolis, in July 1999, responded by prohibiting “aggressive panhandling.”
This illegal activity was defined as touching the solicited person, approaching an individual stand-
ing in line to be admitted to a commercial establishment, blocking an individual’s entrance to
any building or vehicle, following a person who walks away from the panhandler, using profane
or abusive language or statements or gestures that would “cause a reasonable person to be fear-
ful or feel compelled,” and panhandling in a group of two or more persons. The ordinance also
prohibited soliciting at various locations, including bus stops, sidewalk cafes, vehicles parked or
stopped on a public street, and within twenty feet of an ATM. Panhandling is prohibited under the
ordinance after sunset or before sunrise. Each act in violation of the ordinance is punishable by a
fine of not more than $2,500. A court was authorized to issue an injunction or order prohibiting
an individual convicted of violating the ordinance from repeating this behavior. Violation of the
injunction was punishable with imprisonment.25
Panhandling is defined as a solicitation made in person upon any street, public place, or park
in which a person requests an immediate donation of money or other gratuity. Individuals are free
to directly ask for money during the day so long as they do not violate the ordinance. In addition,
individuals have the right during the daytime or evening hours to engage in “passive panhan-
dling” in which they display signs or engage in street performances during the evening.
The Seventh Circuit Court of Appeals ruled that Indianapolis possessed a legitimate interest in
promoting the safety and convenience of its citizens on the public streets, places, and parks and
that the ordinance was a reasonable time, place, and manner restriction of speech. The court noted
that the ordinance does not ban all panhandling; it merely restricts solicitations to situations that
are considered “especially unwanted or bothersome” in which people would “feel a heightened
sense of fear or alarm, or might wish especially to be left alone.”
You Decide 11.2 The Ninth Circuit Court of The monthly welfare stipend for single adults in Los
Appeals held that arresting home- Angeles County is $221. Waiting lists for public housing
less individuals for “sitting, lying, and for housing assistance vouchers in Los Angeles are
or sleeping on a public street and from three to ten years. Does the Eighth Amendment
sidewalks at all times and in all prohibit Los Angeles “from punishing involuntary sitting,
places within Los Angeles” is cruel and unusual punish- lying, or sleeping on public sidewalks that is an unavoid-
ment. The so-called Skid Row area of Los Angeles has able consequence of being homeless without shelter in
the largest concentration of homeless in the United the City of Los Angeles”? See Jones v. City of Los
States, and there generally is a shortage of more than a Angeles, 444 F.3d 1118 (9th Cir. 2006). (The decision
thousand beds each evening. The area is dominated by was withdrawn following a settlement between the plain-
single-residence hotels, which charge $379 per month. tiffs and Los Angeles.)
GANGS
It is estimated that that there are roughly twenty-one thousand gangs active in the United States
with an estimated seven hundred thousand gang members. Gangs are no longer limited to large
urban areas and today are active in nearly every city, suburb, and rural area. These gangs are
involved in criminal activity ranging from drugs and prostitution to extortion and theft; and some
have members throughout the United States as well as in Mexico and Central America. The Illinois
legislature made several legislative “findings” concerning the peril posed by gangs:
•• Urban, suburban, and rural communities are being “terrorized and plundered by street
gangs.”
•• Street gangs are often “controlled by criminally sophisticated adults” who manipulate or
threaten young people into serving as drug couriers and into carrying out brutal crimes on
behalf of the gang.
•• Street gangs present a “clear and present danger to public order and safety.”26
An example is the Varrio Sureño Town gang that was described by the California Supreme
Court, in the 1997 case of Gallo v. Acuna, as having converted the four-square-block neighborhood
of Rockspring in San Jose, California, into an “urban war zone.” The gang members were described
as congregating on sidewalks and lawns and in front of apartment complexes at all hours. They
openly drank, smoked dope, sniffed glue, snorted cocaine, and transformed the neighborhood
into a drug bazaar. The court’s opinion described drive-by shootings, vandalism, arson, and theft
as commonplace. Garages were used as urinals; homes were “commandeered as escape routes” and
served as storage sites for drugs and guns; and buildings, sidewalks, and automobiles were “turned
into a . . . canvas of gang graffiti.” The California Supreme Court concluded that community res-
idents had become “prisoners in their own homes.” Individuals wearing the color of clothing
identified with rival gangs were at risk, and relatives and friends were reluctant to visit. Verbal and
physical retaliation was directed against anyone who complained to the police or who served as
an informant.27
In Gallo, the California Supreme Court affirmed an injunction (a court order halting cer-
tain acts) issued by a California trial court. The order declared the Varrio Sureño Town gang a
“public nuisance,” meaning that the gang’s continued presence in the community prevented
residents from the enjoyment of life and property, disrupted the quiet and security of the neigh-
borhood, and interfered with the use of the streets and parks. Thirty-eight members of the gang
were ordered to “abate” (end) the nuisance by halting conduct ranging from spray painting
to the possession and sale of drugs and the playing of loud music, public consumption of
alcohol, littering, urinating in a public place, communicating through the use of gang signals, and
wearing gang insignia. An individual or group violating the injunction would be in contempt of
court and subject to punishment by a fine or short-term incarceration. At last count, there were
nearly fifty gang injunctions against fifty-seven gangs in Los Angeles with a total membership of
eleven thousand.
States have adopted various legal approaches to controlling gangs. Special gang statutes
make it a crime to solicit, to cause any person to join, or to deter any person from leaving a gang
or to commit a crime intended to promote or further the interests of a gang. Enhanced punish-
ment is provided for crimes committed to further the interests of gangs. Gang members have
been prosecuted under organized crime statutes, and laws also provide for the vicarious civil
liability of parents for the conduct of their children. Various school districts prohibit the dis-
play of gang paraphernalia and colors, and some correctional systems provide rewards for gang
members who leave the gang and cooperate with authorities. In 2009, the City of Los Angeles
successfully sued and collected a multimillion-dollar judgment for damages against individual
gang members.
Critics of these antigang efforts question whether we are sacrificing the civil liberties of both
gang members and innocent young people in order to combat the violence perpetrated by a rela-
tively small number of individuals. They point to the fact that young minority males who, in fact,
may not be gang members are often targeted for harassment, detention, interrogation, and arrest
by the police. One of the most significant efforts to curb gang activity was the gang ordinance
adopted by the Chicago City Council in 1992. This local law authorized the police to order sus-
pected gang members who, along with at least two other individuals, were “loitering” in public to
vacate the area. Between 1992 and 1995, the police issued eighty-nine thousand orders to disperse
and arrested more than forty-two thousand people for disobeying an order to move on. In City of
Chicago v. Morales, the U.S. Supreme Court considered the constitutionality of the ordinance and
held that the ordinance unconstitutionally failed to provide clear standards to guide the police and
the public and potentially applied to a large amount of innocent conduct. The city “enacted an
ordinance that affords too much discretion to the police and too little notice to citizens who wish
to use the public streets.”28
On February 16, 2000, the Chicago City Council revised the 1992 Gang Congregation
Ordinance. The amended ordinance defined “gang loitering” as remaining in any one place under
circumstances “that would warrant a reasonable person” to believe that the purpose or effect of
Read City of
that behavior is to enable a criminal street gang “to establish control over identifiable areas, to
Chicago v.
Morales on the
intimidate others from entering these areas, or [to] conceal illegal activities.” The new ordinance
study site: study authorizes the Superintendent of Police to designate areas of Chicago in which enforcement is
.sagepub.com/ required because “gang loitering has enabled street gangs to establish control over identifiable
lippmaness2e. areas, to intimidate others from entering the areas or to conceal illegal activities.”29
THE OVERREACH OF CRIMINAL LAW

Criminologists Norval Morris and Gordon Hawkins, writing in 1969, argue that the function of
criminal law is to protect property and persons, particularly juveniles and those in need of special
protection. They point out that roughly 50 percent of all arrests are for acts threatening public
morality. These, for the most part, are acts that individuals engage in voluntarily and do not view
as harmful to themselves or to others. In other words, people are arrested who do not believe that
they should be treated as criminals or victims and who are not deterred by the threat of either
arrest or punishment. This list of victimless crimes includes drunkenness, narcotics offenses, gam-
bling, prostitution, the possession of obscene materials, and various sexual offenses. Some may
include under the heading of victimless offenses seat belt and motorcycle helmet laws, adultery
and fornication, and the prohibition on assisted suicide. Morris and Hawkins criticize what they
view as the moralist orientation of U.S. criminal law and the long tradition of employing the law
as an instrument for coercing men and women into acting in a virtuous fashion. In their view,
people possess a complete right to choose a path that may lead to purgatory so long as they do not
directly injure the person or property of another. Morris and Hawkins also point to the fact that
criminalizing consensual, private behavior actually increases rather than decreases crime.30
•• Crime Tariff. Making an activity illegal means that those engaged in the activity do not con-
front competition from legal businesses and will be free to charge a high price. This profit,
in turn, is used to fund other organized crime activities. Also, addicts must resort to crime to
support their expensive gambling, drug, and alcohol addictions.
•• Inconsistency. The condemnation of activities such as gambling is undermined by the fact
that there are legal lotteries and gambling casinos in Atlantic City, in Las Vegas, and on
Native American reservations. This creates an inconsistency in legal rules and contributes to
a lack of respect for the law.
•• Romanticism. Declaring an activity illegal tends to make it appear romantic and appealing
to younger people.
•• Law Enforcement. Scarce law enforcement resources are devoted to enforcing these laws rather
than to preventing more harmful offenses. Often, there are no complaining victims, and the
police must resort to controversial undercover and sting operations. The amount of money
involved in activities such as drug trafficking and the absence of complaining victims creates
a situation with the potential for bribery, extortion, and corruption.
•• Criminal Subculture. Making activities like gambling and prostitution illegal means that peo-
ple involved in these activities are driven into a criminal environment and may be victim-
ized or become involved in other crimes. Prostitutes often are exploited by pimps who offer
protection and threaten customers.
This view is challenged by English Lord Patrick Devlin, who argues that society must be equally
vigilant in protecting itself against threats from abroad and at home. Lord Devlin contends that
the loosening of moral bonds is typically the first step toward the disintegration of the social order
and that the maintenance of values is the proper concern of government. Lord Devlin argues that
the notion that allegedly private behavior does not affect society is misguided. He concedes that
while great social harm may not result from a single individual engaging in an alcoholic or gam-
bling binge, society would crumble if the same activity were embraced by a quarter or more of the
population. These so-called victimless crimes, according to Lord Devlin, impose hardships on the
families of addicts, require society to spend money in treating addictions, corrupt the young, and
ruin the lives of addicts. In short, a compassionate society does not permit individuals to “do their
own thing.” Lord Devlin concludes that we cannot, on the one hand, encourage people to live in
a moral fashion and, on the other hand, tolerate immoral behavior. Where do you stand on the
debate over so-called victimless crimes?31
The next section considers prostitution, an activity that the famous British Wolfenden Report
argued, in 1957, should not be subject to criminal punishment when carried on between consent-
ing adults.
PROSTITUTION
Prostitution is defined as engaging in sexual intercourse or other sexual acts in exchange for
money or other items of value. You undoubtedly have heard someone refer to prostitution as “the
world’s oldest profession.” Why is an activity that has been characteristic of both ancient and
modern societies considered a crime? There are several reasons:
Disease. Encourages transmission of infections such as AIDS.

Family. Weakens marriage and the family.
Exploitation. Exploits and degrades women.
Immorality. Promotes social immorality and a culture tolerant of alcoholism, drug abuse, gam-
bling, and acts of immorality.
Critics of laws punishing prostitution point out that the legitimacy of law enforcement is
undermined by the fact that the police typically must resort to posing as “prostitutes” or “custom-
ers” in order to enforce prostitution laws and that this lowers respect for law enforcement. There
is also an inconsistency in the fact that the police target street prostitutes while “call girls” who
service the relatively wealthy are rarely arrested. Critics further note that despite the resources
devoted to eliminating prostitution, the police have not been able to deter individuals from engag-
ing in this activity. The argument is also made that categorizing prostitution as a crime ensures
that it will be controlled by organized crime and pimps (individuals who live off the proceeds of
prostitution). This results in prostitutes being labeled as criminals, places them in danger, and
deprives the government of tax revenues. Others argue that prostitution laws deprive women of
the opportunity to utilize their bodies to advance their economic well-being. The most radical
commentators point to the fact that prostitutes are no different than the large number of people
who engage in sex with the intent of obtaining employment or material gain. Some favor decrim-
inalization of prostitution and subjecting the practice to state regulation, the policy followed in
the Netherlands. State regulation has the advantage of ensuring that precautions are taken against
the spread of HIV and other sexually transmitted diseases. A small number of commentators favor
complete legalization. Judge Stanley Gartenstein of the Criminal Court of New York City noted
that “morality cannot be legislated” and that it might be more productive to punish the individu-
als who exploit prostitutes rather than the prostitute herself.32
Nevada is the only state in which prostitution is legal. Each county in the state with a popula-
tion of fewer than four hundred thousand is free to determine whether to permit prostitution, and
the practice is heavily regulated. Brothels must pay a licensing fee, and prostitutes are required to
submit to monthly HIV tests. Condoms are required, and prostitutes must be at least twenty-one
years old. Prostitution is not permitted anywhere other than in the brothels, and the brothels may
not advertise in counties in which the practice is illegal. Nevada possesses roughly thirty legal
brothels that employ roughly three hundred prostitutes.
The Crime of Prostitution

Prostitution punishes both men and women who
•• solicit or engage in
•• any sexual activity
•• in exchange for money or other consideration.
As you can see, prostitution is committed by exchanging sexual activity for money or other
consideration or by solicitation for prostitution, asking or requesting another person to
engage in prostitution. Note that it is the solicitation or actual exchange of money or value for sex
that distinguishes prostitution from the legal act of approaching another person for consensual
sexual activity. The crime of prostitution is not limited to sexual intercourse and encompasses
all varieties of sexual interaction. Georgia’s prostitution law provides that a person “commits the
offense of prostitution when he or she performs or offers or consents to perform a sexual act,
including but not limited to sexual intercourse or sodomy, for money or other items of value.”33
Pennsylvania follows the MPC by providing that a person is guilty of prostitution who “is an
inmate of a house of prostitution or otherwise engages in sexual activity as a business.” An inmate
is a person who engages in prostitution as a business in conjunction with a house of prostitution
or as a “call girl” who makes use of an agency to obtain clients. An individual is guilty under this
provision who engages in prostitution in affiliation with a house of prostitution. It is unnecessary
to establish that the accused engaged in a specific act of prostitution.34
State statutes also commonly punish loitering for prostitution. California declares that it is
“unlawful for any person to loiter in any public place with the intent to commit prostitution.” An
individual’s mens rea is demonstrated by acts that indicate an intent to induce, entice, or solicit
prostitution. The California statute notes that this intent may be established by the stopping and
soliciting of pedestrians or of the occupants of passing automobiles. This type of provision recog-
nizes that public loitering for solicitation is an essential step in engaging in the business of pros-
titution and that solicitation negatively impacts a neighborhood’s sense of safety and stability.35
Prostitution statutes are gender neutral; prostitution may be committed by a male or female
prostitute, and both prostitutes and customers may be guilty of soliciting or loitering for the pur-
pose of prostitution. Several states explicitly punish a person who “hires a prostitute or any other
person to engage in sexual activity . . . or if that person enters or remains in a house of prostitution
for the purpose of engaging in sexual activity.” Indiana punishes patronizing a prostitute with the
same penalties that apply to sex workers. In Banks v. State, Banks was convicted when in response
to a female undercover officer’s question “so are you good for head for $20?” he nodded and said
“yeah we’re good.”36 Pennsylvania also provides that convictions and sentences for a second and
all subsequent acts of prostitution shall be published in the newspaper.37
The federal Mann Act38 prohibits the interstate transportation of an individual for prostitution
or for any other prohibited sexual activity. The act applies when an individual is transported for an
immoral purpose even when there is no financial motive involved.39
The federal criminal code also punishes human trafficking. The Victims of Trafficking and
Violence Protection Act, first adopted in 2000 and renewed numerous times, punishes by twenty
years in prison individuals who provide or obtain the labor of another through threat of serious
harm or restraint or who traffic in persons who are to be subjected to slavery or forced labor.
Aggravated forced labor and sex trafficking and the sex trafficking of minors is subject to punish-
ment of up to life in prison.
Another prostitution-related offense is pimping, which involves procuring a prostitute for
another individual, arranging a meeting for the purpose of prostitution, transporting an individual
to a location for the purpose of prostitution, receiving money or another thing of value from a
prostitute knowing that it was earned from prostitution, or owning, managing, or leasing a house
of prostitution or prostitution business. Pandering is the encouraging and inducing of another to
become or remain a prostitute; this is punished more harshly when duress or coercion is employed.
Living off prostitution is committed by a person, other than a prostitute and the prostitute’s
minor child or other dependent, who is “knowingly supported in whole or substantial part by
the proceeds of prostitution.” Keeping a place of prostitution occurs “when [an individual]
knowingly grants or permits the use of such place for the purpose of prostitution.” Pimping, pan-
dering, and keeping a place of prostitution are also generally encompassed under the crime of
promoting prostitution, which involves aiding or abetting prostitution by “any means what-
soever.” States also have extended their laws to criminally punish a “masseur or masseuse” who
commits the offense of masturbation for hire when he or she “stimulates the genital organs of
another, whether resulting in orgasm or not, by manual or other bodily contact exclusive of sexual
intercourse or by instrumental manipulation for money or the substantial equivalent thereof.”
Prostitution is a misdemeanor. It is typically punished somewhat more severely for the third
and subsequent offenses and is a felony in the event that an individual knew that he or she was
infected with HIV. Georgia provides a sentence of between five and twenty years and a fine of up
to $10,000 for keeping a place of prostitution, pimping, pandering, or solicitation involving an
individual under eighteen years old.40
We should note in passing that there are several other misdemeanor sexual offenses that
appear in various state statutes:
•• Adultery. Consensual sexual intercourse between a male and a female, at least one of whom
is married.
•• Bigamy. Marrying another while already having a living spouse.
•• Fornication. An unmarried person engaging in voluntary sexual intercourse with another
individual.
•• Lewdness. Public acts offending community standards, including the display of genitals, sex-
ual intercourse, lewd sexual contact, and deviant sexual intercourse.
•• Incest. Sexual intercourse between individuals who are related to one another within certain
prohibited degrees.
•• Seduction. A female engaging in sexual intercourse with a male based on a false promise of
marriage.
•• Polygamy. Marriage at the same time to more than one person.
Legal Regulation of Prostitution

The difficulty of controlling prostitution through individual criminal prosecutions led the City of
Milwaukee, Wisconsin, to obtain a court order declaring that prostitutes in designated areas of the
city constituted a nuisance. A Wisconsin appellate court found that the police had received a high
volume of complaints concerning prostitutes on the streets and private property in this neighbor-
hood. The court further ruled that the enforcement of the laws against prostitution posed a danger
to the police, who were forced to act undercover to apprehend prostitutes, and that these officers
were endangered by the fact that the prostitutes frequently carried sharpened objects, knives with
long blades, and razors. The injunction issued by the court prohibited prostitutes from soliciting
customers by stopping pedestrians and automobiles and from waiting at bus stops and pay phones
Read Harwell and loitering in the doorways of businesses.41
v. State on the
study site: study
.sagepub.com/
lippmaness2e. Model Penal Code
Section 251.2. Prostitution and Related Offenses
(1) A person is guilty of prostitution, a petty misdemeanor, if he or she:
(a) is an inmate of a house of prostitution or otherwise engages in sexual activity as a busi-
ness; or
(b) loiters in or within view of any public place for the purpose of being hired to engage in
sexual activity.
“Sexual activity” includes homosexual and other deviate sexual relations. A “house of prosti-
tution” is any place where prostitution or promotion of prostitution is regularly carried on by one
person under the control, management or supervision of another. An “inmate” is a person who
engages in prostitution in or through the agency of a house of prostitution. “Public place” means
any place to which the public or any substantial group thereof has access.
(2) Promoting Prostitution. . . . The following acts shall . . . constitute promoting

prostitution:
(a) owning, controlling, managing, supervising or otherwise keeping . . . a house of pros-
titution or prostitution business; or
(b) procuring an inmate for a house of prostitution or a place in a house of prostitution for
one who would be an inmate; or
(c) encouraging, inducing, or otherwise purposely causing another to become or remain a
prostitute; or
(d) soliciting a person to patronize a prostitute; or
(e) procuring a prostitute for a patron; or
(f) transporting a person into or within this state with the purpose to promote that person
engaging in prostitution, or procuring or paying for transportation with that purpose;
or
(g) leasing or otherwise permitting a place controlled by the actor . . . to be regularly used
for prostitution or the promotion of prostitution, or failure to make reasonable efforts
to abate such use by ejecting the tenant, notifying law enforcement authorities, or
other legally available means; or
(h) soliciting, receiving, or agreeing to receive any benefit for doing or agreeing to do any-
thing forbidden by this Subsection.
(3) Grading of Offenses. An offense under Subsection (2) constitutes a felony of the third
degree if:
(a) the offense falls within paragraph (a), (b) or (c) of Subsection (2); or
(b) the actor compels another to engage in or promote prostitution; or
(c) the actor promotes prostitution of a child under 16. . . .
(d) the actor promotes prostitution of his wife, child, ward or any person for whose care,
protection or support he is responsible.
Otherwise the offense is a misdemeanor.
(4) Presumption From Living off Prostitutes. A person, other than the prostitute or the pros-
titute’s minor child or other legal dependent incapable of self-support, who is supported
in whole or substantial part by the proceeds of prostitution, is presumed to be knowingly
promoting prostitution. . . .
(5) Patronizing Prostitutes. A person commits a violation if he hires a prostitute to engage in
sexual activity with him, or if he enters or remains in a house of prostitution for the pur-
pose of engaging in sexual activity.
(6) Evidence. On the issue whether a place is a house of prostitution the following shall be
admissible evidence: its general repute; the repute of the persons who reside in or frequent
the place; the frequency, timing and duration of visits by non-residents. Testimony of a
person against his spouse shall be admissible to prove offenses under this Section.

In 2015, the nongovernmental human rights organiza- and sexual molestation by pimps, johns, and the
tion Amnesty International (AI) took the controversial police. As long as sex work is considered unlawful,
step of condemning the criminalization or punishment sex workers also will be without access to the pro-
of activities relating to the buying or selling of consen- tections and benefits afforded to workers engaged in
sual sex between adults. AI’s position is based on the lawful activity, including unionization, health insurance,
human rights principle that consensual sex between contributions to social security, or a retirement fund.
adults is entitled to protection so long as it does not Criminalization, according to AI, stigmatizes sex work-
involve trickery, threats, or violence. The organization ers, results in their rejection by friends and family, and
continues to support the criminalization of individuals pushes them into a criminal subculture of drugs and
who exploit and abuse “sex workers” and who engage gambling.
in sex trafficking. Groups such as the Coalition Against Trafficking
AI advocates the decriminalization of sex work in Women view female prostitution as subordinating
rather than criminal punishment. Customers (johns) female sex workers to pimps, brothel owners, and
who engage in consensual sexual activity with a “sex the male buyers of sex. The opponents of AI’s pro-
worker” and individuals involved in the “operational posal to decriminalize prostitution claim that this
aspects” of the industry such as running a brothel will lead to an increase in sex trafficking to satisfy
under the AI proposal also would no longer be subject the anticipated increased demand for sexual ser-
to arrest and to criminal punishment. An exception to vices of women. The only solution that will protect
decriminalization under AI’s proposal are individuals women is the elimination of the $99 billion global
who force others into sexual bondage or individuals sex industry. The best approach to the eradication
who engage in sexual relations with children, who are of prostitution, according to critics of AI’s proposal,
considered to be incapable of a criminal intent. is the “Swedish model” (also followed in Norway and
AI argues that the present policy of criminalization in France), which criminalizes customers and indi-
of “sex work” across the globe leaves sex workers viduals who exploit sex workers rather than the sex
with little protection against harassment, violence, workers themselves.
OBSCENITY
Until the eighteenth century, obscenity in England was punished before religious courts. In 1727,
royal judges asserted jurisdiction over obscenity, asserting that possession of such material consti-
tuted an offense against the peace and weakened the “bonds of civil society, virtue, and morality.”42
In Roth v. United States, the U.S. Supreme Court held that obscenity was not constitutionally
protected speech or press within the First Amendment, reasoning that this form of expression is
“utterly without redeeming social importance.”43 The lack of protection afforded to obscenity is
based on several public policy considerations:
Protection of the Community. A community is entitled to protect itself against threats to the
moral fabric of society.
Antisocial Conduct. Obscenity causes antisocial conduct.
Women. Obscenity degrades women.
Communication. Obscenity produces a sexual, rather than mental, response and is a form of
sexual communication rather than the expression of ideas.
These assertions all have been challenged. For instance, the government Report of the Commission
on Obscenity and Pornography, in 1970, concluded that exposure to explicit sexual materials does
not play a significant role in causing delinquent or criminal behavior.
In Miller v. California, in 1973, the U.S. Supreme Court affirmed that obscene material is not
protected by the First Amendment and established a three-part test for obscenity. Obscenity is
defined as a description or representation of sexual conduct that, taken as a whole by the average
person applying contemporary community standards, has the following three qualities44:
1. Prurient Interest. Appeals to the prurient interest in sex (an obsession with obscene, lewd, or
immoral matters).
2. Offensive. Portrays sex in a patently offensive way.
3. Value. Applying a reasonable person standard, lacks serious literary, artistic, political, or
scientific value when taken as a whole.
In New York v. Ferber, the U.S. Supreme Court held that child pornography could be prohib-
ited despite the fact that the material did not satisfy the Miller standard. The Court upheld a New
York law that prohibited the depiction of a child under sixteen years old in a “sexual performance,”
defined as engaging in actual or simulated sexual activity or the lewd display of the genitals. The
sexual performance was considered criminal under the statute regardless of whether it possessed
literary, artistic, political, or scientific value.45
It is illegal in every state to buy, sell, exhibit, produce, advertise, distribute, or possess with
the intent to distribute obscene material or illegal child pornography. The offense of lewdness
involves conduct that is obscene, such as willfully exposing the genitals of one person to another
in a public place for the purpose of arousing or gratifying the sexual desire of either individual.
Indecent exposure generally entails an act of public indecency, including sexual intercourse,
exposure of the sexual organs, a lewd appearance in a state of partial or complete nudity, or a lewd
caress or fondling of the body of another person. Voyeurism involves obtaining sexual gratifi-
cation from viewing another individual’s sex organs or sexual activities and typically is punished
under what are termed “peeping Tom laws.”
Several municipalities have expanded the definition of obscenity to include other forms of
communication that are considered harmful. An Indianapolis ordinance, for instance, was ruled
unconstitutional that prohibited the portrayal of women as sexual objects who enjoy pain or
humiliation or who experience sexual pleasure in being raped or who are presented as sexual
objects for domination or violation. The ordinance was ruled unconstitutional by the Seventh
Circuit Court of Appeals, which held that Indianapolis was improperly penalizing speech based on
the content of the message: Communication depicting women in the approved way was lawful no
matter how sexually explicit, and speech portraying women in the unapproved way was unlawful
whatever the literary or artistic value.46
You Decide 11.3 California Assembly Bill 1179 adult, and requires their packaging to be labeled “18.”
(2005), Cal. Civ. Code Ann. §§ The act covers games “in which the range of options
1746–1746.5, prohibits the sale or available to a player includes killing, maiming, dismem-
rental of “violent video games” to bering, or sexually assaulting an image of a human being,
minors unless accompanied by an if those acts are depicted” in a manner that “[a] reasonable
person, considering the game as a whole, would find Northern District of California. The district court con-
appeals to a deviant or morbid interest of minors,” that is cluded that the act violated the First Amendment and
“patently offensive to prevailing standards in the commu- permanently enjoined its enforcement. The State of
nity as to what is suitable for minors,” and that “causes California appealed to the U.S. Supreme Court.
the game, as a whole, to lack serious literary, artistic, How would you decide the case? As a state legis-
political, or scientific value for minors.” Violation of the lator, would you vote in favor of this type of legislation?
act is punishable by a civil fine of up to $1,000. See Brown v. Entertainment Merchants Association,
The video game and software industries brought 564 U.S. ___ (2011).
a challenge to the act in the U.S. District Court for the
CRIME IN THE NEWS

In 1989, Denver, Colorado, enacted an ordinance ban- rottweilers killed 41 individuals, and a majority of the
ning pit bulls from the city. The law was precipitated by victims were children.
dog attacks that resulted in the death of a five-year- Denver and Miami are the largest cities to ban pit
old boy and the savage maiming of a pastor. Denver bulls, and at one point nearly seven hundred cities and
had experienced twenty such attacks over a five-year towns adopted similar bans or imposed restrictions
period. The Colorado legislature subsequently passed on the owners of pit bulls, including liability insurance,
a law prohibiting counties and municipalities from muzzling dogs in public, keeping the dogs in pens when
enacting breed-specific bans on dogs. In December in the yard surrounding the home, the posting of warn-
2004, a Denver court ruled that Colorado lacked the ing signs, and even mandatory sterilization. Seventeen
authority to prevent the city from prohibiting any person states have legislation that prohibits breed-specific
from “owning, possessing, keeping, exercising control bans. The legislation in most states focuses on a
over, maintaining, harboring, or selling a Pit Bull in the dog’s behavior rather than on a dog’s breed. The typical
City and County of Denver.” A pit bull is defined in the approach is represented by Michigan, which prohibits
ordinance as any dog that is an American pit bull ter- “dangerous dogs”; such an animal is defined as a dog
rier, an American Staffordshire terrier, a Staffordshire that “bites or attacks a person, or a dog that bites or
bull terrier, or any dog displaying the majority of the attacks and causes serious injury or death to another
physical traits of any one or more of these breeds. dog while the other dog is on the property or under
Animal control officers under the ordinance are the control of its owner.” An exception is made for an
authorized to confiscate pit bulls, and a determination attack against trespassers and persons who provoke
then is made by a veterinarian as to whether the dog or torment the animal, or in those instances in which
is one of the three “banned breeds.” In the event that the animal acts to protect an individual.
the animal is found to be a member of a banned breed, The Denver ordinance is based on the belief that pit
the owner is provided the opportunity to remove the bulls tend to be inherently aggressive toward other ani-
dog from the city. A failure to remove the animal results mals and children and inflict more severe injuries than
in the dog being put to sleep. A second offense of other dogs. In addition, the breed is favored by gang
possession results in automatic euthanasia. An owner members and drug dealers. Defenders of the breed
who removes his or her dog must provide a statement claim that pit bulls are no more dangerous than other
listing the dog’s new home. The penalty for harboring dogs and that most of the pit bulls that are impounded
an illegal pit bull is a fine of up to $1,000 and a year are completely harmless. Historically, various breeds
in jail. The ordinance permits the transportation of a have been victims of the same form of social hysteria
pit bull through Denver so long as the dog remains in that is being directed at pit bulls. Various studies have
a vehicle. Since 1989, opponents of the Denver ordi- challenged the wisdom of the ban on pit bulls and con-
nance estimate that roughly 1,100 pit bulls have been clude that it is irresponsible owners who present the
seized and put down. There reportedly have been no problem rather than the breed. These owners will turn
deaths in Denver from pit bulls since the prohibition any dog they own into an aggressive animal. Pit bull
went into effect. As for national statistics, between advocates also argue that the breed often is misidenti-
2005 and 2015, pit bulls killed 232 individuals and fied and incorrectly blamed for an attack.
(Continued)
(Continued)
Some courts have struck down pit bull ordinances safety. A Kansas court found that pit bulls “possess
on the ground that the term pit bull “is vague and risks a strongly developed ‘kill instinct’ not shared by other
depriving owners of their pets without due process of breeds of dogs,” are “unique in their ‘savageness and
law.” The majority view, however, is that the regulation unpredictability,’” and are “twice as likely to cause mul-
of pit bulls is a valid exercise of the state and local tiple injuries as other breeds of dogs.” See Hearn v.
government’s power to protect the public health and City of Overland Park, 772 P.2d 758 (Kan. 1989).
CRUELTY TO ANIMALS
In 2007, the issue of animal cruelty became a topic of public attention when Atlanta Falcons star
quarterback Michael Vick was convicted and sentenced to twenty-three months in prison for vio-
lating a federal law prohibiting cruelty to animals. The crime of cruelty to animals is recognized
as an offense against public order and decency. These laws were originally based on the belief
that respect for animals helped to teach people to act with sensitivity and regard for their fellow
citizens, particularly the most vulnerable members of human society. Today, laws against cruelty
to animals also reflect the emotional attachment that people have toward their pets and other ani-
mals and the increasingly common belief that animals experience pleasure and pain and possess
rights. Violence toward animals is also thought to encourage aggression toward human beings.
Prior to 1990, only six states punished cruelty to animals as a felony. All fifty states now punish
animal cruelty as a felony and have laws against dog fighting and cock fighting. The Animal
Legal Defense Fund ranks the five states having the strongest anticruelty laws as Illinois, Maine,
Michigan, Oregon, and California. The states considered to have the weakest anticruelty laws are
Kentucky, North Dakota, Idaho, Mississippi, and Iowa.
The Animal Welfare Act of 196647 is a comprehensive federal law that regulates research, exhi-
bition, transport, and treatment of animals by dealers. In 2010, in United States v. Stevens, the
U.S. Supreme Court held that a congressional act prohibiting the creating, selling, or possess-
ing of depictions of animal cruelty with the purpose of placing the depiction in “interstate com-
merce . . . for commercial gain” was in violation of First Amendment freedom of expression.48
There also is a long list of federal laws that protect all varieties of wildlife. For example, the Lacey
Act prohibits interstate trafficking in wildlife and wildlife parts that have been taken in violation of
a state, federal, foreign, or trial law or regulation.49 Another example is the Migratory Bird Treaty Act
that safeguards virtually all native North American birds, 50 and the Endangered Species Act protects
species and populations of plants and animals that are in imminent danger of extinction. 51
CASE ANALYSIS
In People v. Upshaw, the defendants argued that the evidence did not support the charge against
them of inciting to riot and disorderly conduct.
Did Upshaw Incite a Riot?
People v. Upshaw, 741 N.Y.S.2d 664 (Crim. Ct. N.Y.C. 2002)

Opinion by: Harrington, J.
Defendant argues that the accusatory instrument is not facially sufficient and must be dismissed.
[indictment], which charges him and two codefen- Specifically, defendant argues that his actions, rather
dants with inciting to riot and disorderly conduct, than criminal, were an exercise of his right to free
speech under the First Amendment of the United defendant contends that the complaint alleges merely
States Constitution. . . . After reviewing the complaint, that he “spoke in praise of the assault on the World
and after consideration of defendant’s motion to dis- Trade Center and stated that worse should have hap-
miss and the People’s opposition thereto, the court pened,” but does not allege that “defendant urged or
concludes that the accusatory instrument is facially encouraged people to commit acts of terrorism or trea-
sufficient. Therefore, and for the following reasons, son.” . . . Defendant analogizes his conduct to “the
defendant’s motion is denied. mere abstract teaching . . . of the moral propriety or
Penal Law section 240.08 provides that a person is even moral necessity for a resort to force and violence”
guilty of inciting to riot “when he urges ten or more in contrast to “preparing a group for violent action
persons to engage in tumultuous and violent con- and steeling it to such action.” In defendant’s view,
duct of a kind likely to create public alarm.” Although “the language attributed to defendant was an expres-
Penal Law section 240.08 does not expressly provide sion of a political nature, intended to spur debate and
for the element of intent, courts have recognized that thought, not to create the type of public harm con-
in order to pass constitutional muster, the incitement templated by the statute.”
statute necessarily includes the “elements of ‘intent’ In analyzing whether the allegations in the com-
and ‘clear and present danger’ before one’s freedom of plaint evince defendant’s intent that his alleged con-
speech may be abridged under the First Amendment.” duct led to riotous behavior, and whether his alleged
“Thus, the People must prove not only that defen- conduct created a clear and present danger of riotous
dant’s conduct . . . created a clear and present danger behavior, it is necessary to consider defendant’s words
of riotous behavior, but also that by such conduct he and deeds in the context in which he and his alleged
in fact intended a riot to ensue.” The complaint con- accomplices spoke and acted. The alleged crime took
tains the following narrative of defendant’s alleged place only days after one of the greatest catastrophes
criminal conduct: this nation has suffered—the overwhelming brunt of
which was felt most keenly here in New York—and
Deponent [Police Officer Charles Carlstrom] within sight of the massive smoke plume emanat-
states that he observed each defendant at ing from the still-smoldering mass grave site that
[234 W. 42nd Street in the County and had been the twin towers of the World Trade Center.
State of New York] yelling and stating in It took place while many New Yorkers were grieving
substance: IT’S GOOD THAT THE WORLD for the loss of loved ones or praying in hope that
TRADE CENTER WAS BOMBED. MORE COPS the missing might yet be found, and as New Yorkers,
AND FIREMEN SHOULD HAVE DIED. MORE indeed, all Americans, held their collective breath
BOMBS SHOULD HAVE DROPPED AND at what, at the time, appeared to be the likelihood,
MORE PEOPLE SHOULD HAVE BEEN KILLED. if not the inevitability, of additional terrorist attacks.
WE’VE GOT SOMETHING FOR YOUR A----. It was under these circumstances that defendant and
his cohorts allegedly chose a crowded 42nd Street near
Deponent states that a total of 5 defendants Times Square as their venue not merely to engage in
(Eric White, Reggie Upshaw, Steven Murdock, what any reasonable person would consider to be a
Jesse Atkinson and Kyle Jones) where [sic] vile and morally reprehensible diatribe, but to inten-
yelling the above statements to a crowd of tionally confront the gathering crowd, at point blank
approximately 50 people. Deponent states range, for the purpose of inciting riotous behavior. It
that said people gathered around defen- is estimated that approximately 3,000 people died in
dants and some of said people yelled back at the World Trade Center attack. By comparison, 2,403
defendants. Americans were killed in the attack on Pearl Harbor.
There can be no doubt that the words and deeds
Deponent states that defendants did approach alleged in the complaint make out the elements of
people in the crowd and yell in their faces. the crime of inciting to riot. According to the com-
plaint, defendant and his accomplices used extremely
Deponent further states that defendants were inflammatory language calculated to cause unrest in
asked to disperse and refused to do so. the crowd; praising the tragic deaths of thousands of
innocents at the hands of terrorists and wishing for
even more carnage while the threat of further attacks
Deponent states that defendants’ conduct
loomed over the city cannot be considered “an expres-
caused the crowd to gather and arguments to
sion of a political nature, intended to spur debate and
ensue.
thought, not to create the type of public harm con-
templated by the statute” to use defendant’s words.
Arguing that the complaint does not allege that
The talismanic phrase “freedom of speech” does not
he acted with the requisite intent to incite a riot,
(Continued)
(Continued)
cloak all utterances in legality. “It is one thing to say resort to force and violence”; under the circumstances,
that the police cannot be used as an instrument for the it constituted the very real threat of violence itself.
suppression of unpopular views, and another to say All that is required under Penal Law section
that, when the speaker passes the bounds of argument 240.08 . . . is that defendant urge ten or more persons
or persuasion and undertakes incitement to riot, they to engage in tumultuous and violent conduct of a kind
are powerless to prevent a breach of the peace.” likely to create public harm. Angrily confronting and
Viewed in context, defendant’s words—IT’S GOOD threatening a crowd of onlookers with the intent to
THAT THE WORLD TRADE CENTER WAS BOMBED. stir the crowd to violence is sufficient; the object of
MORE COPS AND FIREMEN SHOULD HAVE DIED. that tumultuous or violent conduct is irrelevant so
MORE BOMBS SHOULD HAVE DROPPED AND MORE long as the conduct defendant urges is of a kind likely
PEOPLE SHOULD HAVE BEEN KILLED—were plainly to cause public harm. . . .
intended to incite the crowd to violence, and not Penal Law section 240.20 provides, in pertinent
simply to express a point of view. But the allegations part, that a person is guilty of disorderly conduct
extend beyond mere words. It is further alleged that “when, with intent to cause public inconvenience,
defendant accosted people in the crowd and shouted a annoyance, or alarm, or recklessly creating a risk
threat—WE’VE GOT SOMETHING FOR YOUR A----— thereof . . . he engages in fighting or in violent, tumul-
directly into the faces of some of the onlookers. It is tuous or threatening behavior.” . . . Defendant’s words
also alleged that as the confrontation escalated, defen- and deeds as alleged in the complaint demonstrate his
dant and his accomplices refused police entreaties to intent to cause public inconvenience, annoyance, or
disperse. This conduct went well beyond protected alarm, or recklessly create a risk thereof by engaging in
speech and firmly into the realm of criminal behavior. tumultuous or threatening behavior. Therefore, defen-
It was far more than “the mere abstract teaching . . . of dant’s request to dismiss both counts in the accusatory
the moral propriety or even moral necessity for a instrument is denied.
CHAPTER SUMMARY
Crimes against public order and morality have tra- or does cause a breach of the peace. The Model Penal
ditionally been viewed as of secondary importance. Code punishes engaging in fighting or threatening
These misdemeanor offenses are disposed of in sum- violent behavior; creating unreasonable noise, offen-
mary trials and carry modest punishments. Offenses sive utterances, or gestures; or creating a hazardous
such as disorderly conduct, however, constitute a sig- or physically offensive condition. A riot is group dis-
nificant percentage of arrests and prosecutions, and orderly conduct and entails participating with others
the treatment of these arrestees helps to shape percep- in tumultuous and violent conduct with the intent of
tions of the criminal justice system. causing a grave risk of public alarm.
Crimes against public order and morality were his- The broken windows theory of crime, as you
torically used to remove the unemployed and political recall, is based on the belief that public indecencies
agitators from cities and towns. Today, we are seeing or quality-of-life crimes lead to neighborhood deteri-
a renewed emphasis on these offenses by municipali- oration and result in an increased incidence of crime.
ties. An increasing number of middle-class individuals Two controversial quality-of-life crimes are vagrancy,
are moving into urban areas and find themselves shar- defined in the common law as wandering the streets
ing their neighborhood with prostitutes, drug addicts, with no apparent means of earning a living, and loi-
alcoholics, and gangs. The so-called broken windows tering, a related offense that is defined at common law
theory reasons that the tolerance of small-scale, qual- as standing in public with no apparent purpose. These
ity-of-life crimes leads to neighborhood deterioration broad statutes have historically been used against
and facilitates the growth of crime. individuals based on their status as “undesirables.”
Individual disorderly conduct is directed at a Vagrancy and loitering statutes have been found void
broad range of conduct that risks or causes public for vagueness by the U.S. Supreme Court. Many states
inconvenience, annoyance, or alarm and risks causing have responded by adopting the approach of the
MPC and punish individuals whose conduct warrants public order and decency do not result in harm to indi-
“alarm for the safety of persons or property in the viduals and to society. A particular object of debate is
vicinity.” Municipal ordinances directed against the the criminalization of prostitution or the exchange of
homeless and gangs have been challenged as void for sexual acts for money or some other item of value.
vagueness, and laws against the homeless also have Obscenity is another offense that is claimed to be a
been attacked as punishing individuals based on their victimless crime, which some claim creates social
economic status. These legal actions have generally harm. There is particular controversy concerning
proven unsuccessful. efforts to extend obscenity to include depictions and
Crimes against public order and decency have descriptions of violence, particularly when directed to
been criticized as punishing “victimless crimes,” or children. Another growing area of concern is the pro-
consensual offenses that the individuals involved do tection of animals.
not view as harmful. Other commentators argue that In the next chapter, we review three additional
the law is properly concerned with private morality crimes against public order and morality: alcoholism,
and challenge the notion that these offenses against gambling, and drugs.
1. List specific acts constituting disorderly conduct. 8. Considering the descriptions of cases you read
on homelessness and gangs, does the broken
2. What is the difference between disorderly con-
windows theory pose a threat to civil liberties?
duct and riot?
Support your answer with examples from the
3. Distinguish between vagrancy and loitering. textbook.
4. What constitutional objections have been raised 9. Why do some commentators argue that the crim-
to vagrancy and loitering statutes? inal law is overreaching?
5. What was the constitutional basis for the Supreme 10. Are prostitution and soliciting for prostitution
Court’s holding Chicago’s Gang Congregation victimless crimes?
Ordinance unconstitutional? Explain the reason-
11. Define the legal standard for obscenity and child
ing of the Supreme Court.
pornography.
6. What are the elements of the crime of prostitution?
12. Should individuals be held criminally liable for
7. How does the U.S. Supreme Court define obscenity? cruelty to “wild” animals?
LEGAL TERMINOLOGY
adultery human trafficking prostitution

breach of the peace indecent exposure public indecencies
broken windows theory keeping a place of prostitution riot
child pornography lewdness rout
crimes against public order and living off prostitution solicitation for prostitution
morality loitering unlawful assembly
crimes against the quality of life masturbation for hire vagrancy
disorderly conduct pandering voyeurism
distracted driving pimping
fornication promoting prostitution

CRIMES AGAINST SOCIAL
12 ORDER AND MOR ALIT Y
Alcoholism, Gambling, and Drug Offenses
Was the defendant guilty of Learning Objectives

possession of drug paraphernalia and
driving while intoxicated? 1. Know the law on the possession of alcohol by
juveniles and the law on selling, serving, and
[Moran] to be guilty must be shown to “knowingly use, or giving alcohol to juveniles.
possess with purpose to use” drug paraphernalia in order
2. Understand the law on public intoxication.
to “ingest, inhale, or otherwise introduce into the human
body, a controlled substance.” Officer Landbert identified 3. Define driving while intoxicated, driving under
the pipe found in defendant’s jean pocket at the police the influence, and driving with an unlawful
station as a marijuana pipe. Landbert in his 32 years as blood alcohol level.
a police officer has made thousands of arrests of persons
4. Know the different ways a police officer may
under the influence of drugs or alcohol . . . The city failed
establish that an individual is in violation of a law
to establish that the pipe contained any drug residue,
marijuana or otherwise. prohibiting driving under the influence of alcohol
Moran refused to take a field sobriety test at the scene. and driving with an unlawful blood alcohol level.
Officer Landbert testified that he smelled alcohol and 5. Appreciate the legal definition of gambling.
detected defendant’s slurred speech after he pulled him
over. Landbert observed that defendant had an unsteady 6. Know how the federal law and state laws
gait and he was swaying. . . . Landbert could see and schedule controlled substances and the var-
smell that defendant’s pants were soaked with urine. At ious types of drug-related acts punishable
the police station defendant refused both a Breathalyzer under federal and state law.
and intoxilyzer test. Officer Lukas, however, also smelled 7. Understand the development of the criminal
alcohol on defendant and observed his glassy, bloodshot
regulation of marijuana.
eyes. From his twelve years’ experience as a police officer,
Lukas agreed with Landbert that defendant was under the 8. Know the law on drug possession and posses-
influence of alcohol. sion with intent to deliver.
[Moran] testified that he had urinated in his clothes
9. Understand the constitutional status of man-
just before he was pulled over by Landbert, not because
datory minimum sentences and the debate
he was drunk, but because he has an on-going bladder
problem and also explained that on the morning of the over mandatory minimum sentences.
arrest he . . . went to a local bar where he met friends 10. Know the elements of the crime of possession
and had two or three beers. One of his friends bought of drug paraphernalia and why the possession
him a whiskey, which he spilled on his clothes. (Village of of drug paraphernalia is a crime.
Newburgh Heights v. Moran, 2005-Ohio-2610)
11. Understand assets forfeiture and the difference
In this chapter, learn about alcohol and narcotics between civil and criminal assets forfeiture.
offenses.
12. Know how drug courts differ from ordinary
criminal courts.
295
INTRODUCTION
There are three additional important crimes against morality and social order: alcoholism,
gambling, and drugs. These criminal offenses at times are included within the category of
“victimless crimes” because they purportedly do not affect others or significantly harm society.
The criminal punishment of crimes like gambling also is criticized because of the inconsistency
in enforcement. State-sponsored gambling in lotteries is accepted, although other forms of
gambling are criminalized.
Should alcoholism, gambling, and drug abuse be considered victimless crimes? They can be
addictive, lead to criminal behavior to support the addiction, disrupt and destroy families, and
impose costs on society in terms of imprisonment and medical treatment, and black market sales
of narcotics may be used to subsidize organized crime and gangs.
ALCOHOLISM
Alcohol is an accepted part of American life. It is used to help us relax, celebrate significant events,
and connect with our friends. Alcohol, however, has a more menacing side; it may be addictive
and abused and is associated with domestic abuse and violence.
Roughly 17.6 million American adults are addicted to alcohol or report that they drink to
excess. Alcohol abuse in addition to threatening health is related to dangerous criminal behavior.
As many as 25 million Americans report driving under the influence of alcohol, and in 2009,
11,839 individuals were killed in alcohol-related traffic accidents. Alcohol reportedly is involved in
40 percent of violent crimes and between 60 and 70 percent of domestic violence.1
Alcoholism and Juveniles

Minors are prohibited from possessing or purchasing alcoholic beverages in every state. It also is
unlawful for an adult to sell, serve, or give alcohol to a juvenile. California Business and Professions
Code Section 25662 prohibits “persons under 21 from possessing alcoholic beverages in any public
place.” The “minor in possession” law in California requires the following:
Age. You are under twenty-one.

Possession. You possess an alcoholic beverage.
Public place. You possess the alcohol in a public place: a store or restaurant or other area open
to the public, or on any street or highway.
It also is a crime in California under Business and Professions Code Section 25658 to sell, furnish,
give or cause to be sold, and furnish or give away any alcohol to a minor under 21 years of age,
or for a licensed establishment knowingly to permit a person under twenty-one years of age to
consume alcohol on the premises. This offense is punishable by a fine and/or community service.
An individual may be subject to a prison term when a serious accident or injury results from a
violation of this section.
States are free to establish their own drinking age. The federal government withholds a percent-
age of federal highway funds from states that do not establish a minimum drinking age of twenty-
one years. Every state, as a result, has established the drinking age at age twenty-one although forty
states have provided for exceptions with parental consent and for exemptions from the law for
religious ceremonies and for educational purposes and in other instances.2
We previously discussed so-called social host liability laws (in Chapter 4). In Illinois, it is a crime
punishable by up to one year in jail and a minimum fine of $500 to permit an underage person “on
premises under your control” to consume alcohol under circumstances in which you should have
known that he or she was consuming alcohol. If a serious injury or death occurs, the individual
may be punished by up to three years in prison and a $25,000 fine.3
In 2008, one hundred university presidents called for a vigorous debate over whether the
drinking age should be lowered to eighteen years of age. The university presidents contended that
CHAPTER 12 Crimes Against Social Order and Morality 297
establishing the drinking age at twenty-one years discriminated against younger students, and that
the law was regularly disregarded. Declaring alcohol illegal for students under twenty-one accord-
ing to the college presidents encouraged binge drinking by younger students who were attracted to
the “forbidden fruit” of alcohol. What is your view on lowering the drinking age?
Public Intoxication
Most states treat public intoxication as a misdemeanor. In practice, when individuals violate a
public intoxication law, a police officer will take them into custody and release them once they
are sober, or the officer may exercise his or her discretion and take the individual home.
Virginia Code Section 18-2-202 prohibits an individual from being drunk in public. An officer is
not required to administer a Breathalyzer test before arresting an individual for public intoxication.
A conviction may be based on the officer’s testimony that the individual’s behavior established
that he or she was drunk in public. A person is “intoxicated” under Virginia law if he “has drunk
enough alcoholic beverages to observably affect his manner, disposition, speech, muscular
movement, general appearance or behavior.” An arrest under Virginia law is required to be based on
an individual’s behavior, and neither an individual’s appearance nor the fact that he or she “smells
of alcohol” justifies his or her arrest.4
State statutes may punish more seriously public intoxication that poses a threat to the public.
Indiana, for example, provides that it is a felony for an individual to be in public in a “state
of intoxication” caused by “the person’s use of alcohol or a controlled substance” if the person
endangers his or her own life or the life of another person, breaches the peace or is in imminent
danger of breaching the peace, or harasses, annoys, or alarms another person.5
California Penal Code Section 647(f) requires that for an individual to be held liable for public
intoxication, he or she must be intentionally under the influence of alcohol and/or drugs in a pub-
lic place and that the individual is “unable to exercise care for his or her own safety or the safety of
others or the individual obstructed or prevented free use of a sidewalk or street.”
California courts broadly interpret a “public place” and consider a broad range of locations
outside the home to be a “public place.” This includes restaurants, streets, sidewalks, stores, movie
theaters, concerts, and an individual’s presence in a car parked or moving on a public street.
The fact that you reek of alcohol does not satisfy the requirements of the California law. The
defendant must be disoriented, sprawled out on the sidewalk, or aggressive. The officer’s testimony
is sufficient for a conviction, particularly where supported by the testimony of eyewitnesses. There
is no requirement that the police subject individuals to a field sobriety test or Breathalyzer test to
determine whether they are inebriated.
California also explicitly provides that a police officer may place individuals arrested for public
intoxication in civil protective custody and detain them for seventy-two hours rather than arrest
them for a criminal misdemeanor offense.6
The U.S. Supreme Court, in Powell v. Texas, confronted whether alcoholism is a disease and
whether it constitutes cruel and unusual punishment to convict an individual for being intoxi-
cated in public. In a 5-4 decision, the court majority held that Powell had been punished for being
intoxicated in public rather than for the disease of alcoholism. The plurality opinion noted that
Texas had “imposed upon appellant a criminal sanction for public behavior which may create
substantial health and safety hazards both for appellant and for members of the general public,
and which offends the moral and esthetic sensibilities of a large segment of the community. This
seems a far cry from convicting one for being an addict, being a chronic alcoholic, being ‘mentally
ill, or [being] a leper.’”7
Driving and Alcoholism

An average of twelve thousand individuals are killed each year in drunk driving–related accidents.
Over nine hundred thousand individuals are arrested for alcohol-related driving infractions; one-
third of these individuals are repeat offenders. The classic offense for “driving and drinking” is
driving while intoxicated (DWI), which prohibits an individual from driving an automobile
while intoxicated. In the 1970s, DWI was expanded to punish driving under the influence
(DUI), which punishes driving under the influence of liquor or narcotics. Individuals charged
under these two types of statutes may challenge the charges on the grounds that despite their
inebriated state, their driving was unaffected. States expanded their laws against DWI by adopting
statutes prohibiting driving with an unlawful blood alcohol level (DUBAL). DUBAL laws
hold individuals liable for driving while their blood alcohol level is too high, despite the fact that
their driving may be unaffected. Every state has gradually lowered the required blood alcohol level
from 0.10 percent in the 1960s to 0.08 percent in the 1990s. States typically impose harsher pun-
ishment on individuals with a higher blood alcohol level typically between 0.15 and 0.20 percent.
Keep in mind that an individual may be convicted of DWI or DUI even when tests determine that
his or her blood alcohol content is below the level established in the state for DUBAL.8
There are two requirements to hold an individual criminally responsible for DUBAL.
1. Driving. You drove a vehicle.

2. Blood alcohol content. You drove with a blood alcohol content of 0.08 percent or more.
The police rely on various methods to determine whether an individual is DUBAL. Breathalyzer
and blood tests are accepted as accurate as long as proper procedures are followed. The U.S.
Supreme Court has upheld the constitutionality of implied consent laws that provide that
individuals who obtain a driver’s license impliedly have consented to the administration of a urine
or blood test or Breathalyzer to determine their blood alcohol content. The Court further held that
it does not violate the Fifth Amendment right against self-incrimination for a state to provide that
a refusal to submit to a blood test under the implied consent law will result in suspension of an
individual’s driver’s license and that a refusal to submit to a blood test may be introduced as evi-
dence of the individual’s guilt of DUBAL or other criminal offense. In some states, refusal to take
a test to determine your blood alcohol content also may result in a fine and a brief jail term.9 In
2013, in Missouri v. McNeely, the Supreme Court held that a nonconsensual drawing of blood ordi-
narily requires a warrant other than in emergency circumstances.10 In 2016, the Supreme Court
ruled that a warrant is required before subjecting an individual arrested for DWI to a blood test,
although a warrant is not required for a breath test.
A DWI or DUI conviction may be based solely on the testimony of police officers or
eyewitnesses. The question for the judge or jury is whether to believe the testimony of the police
and eyewitnesses or whether to believe the testimony of the defendant. An Indiana appellate court
noted that a conviction for DWI may be based on various types of evidence of impairment includ-
ing the consumption of a significant amount of alcohol, slow reflexes, slurred speech, watery or
bloodshot eyes, the odor of alcohol, unsteady balance, and the results of any tests.11
Another method relied on by the police to determine whether an individual is DUI is a field
sobriety test administered in accordance with the guidelines of the National Highway Traffic Safety
Administration (NHTSA). Another test used by the police to determine whether an individual is
DUI is the horizontal gaze nystagmus (HGN) test, which measures the abnormal and involuntary
movement of the eyes caused by alcohol.
What constitutes “driving an automobile”? May an individual be convicted of DUBAL if
arrested in a parked or stationary vehicle? In State v. Owen, the defendant was sitting behind the
wheel of an automobile that was stuck in a ditch and protested that because the car was not moving,
he was not DUI. A Missouri appellate court held that an individual who is inebriated may be held
liable for DUI, although unconscious or asleep, as long as the “key is in the ignition, the engine is
running, and the person is sitting behind the steering wheel.” There are decisions holding inebri-
ated individuals criminally responsible whose hands are on the wheel of a car whose engine is not
running or who are asleep in an automobile and within reach of the steering wheel.12
In State v. Sims, a police officer found Sims passed out or asleep behind the wheel of his vehi-
cle located in a commercial parking lot. The keys were on the front passenger seat of the vehicle.
While awakening Sims, the officer detected a strong odor of alcohol and observed that he had
bloodshot, watery eyes. Sims was convicted based on the possibility that in the future that he
would reach for the keys and drive the automobile while intoxicated. The New Mexico Supreme
Court reversed Sims’s conviction and stressed that a fact finder cannot simply assume or speculate
that the individual in question might sometime in the future commence driving his or her vehicle
and instead must establish that the defendant had the intent to drive so as to pose a danger to
him- or herself or to the public. In this instance, the prosecution failed to prove that Sims used
the vehicle other than as a nonmoving shelter. “It was pure speculation whether [Sims] would
rouse himself and drive the vehicle. [Sims] could not be convicted for what he might have done.
The State had to prove beyond a reasonable doubt that defendant actually exercised physical
control over the vehicle with the general intent to drive so as to endanger the public. Having
failed to meet its burden, the State did not establish actual physical control.” The New Mexico
Supreme Court was concerned that broadly interpreting the conditions under which an individ-
ual is criminally liable for being in control of an automobile as in State v. Owen (e.g., whether the
key is in the ignition and the sleeping defendant is behind the wheel) would encourage individ-
uals to drive their vehicle while intoxicated rather than waiting to drive until they were sober.
What factors do you believe should be considered in determining that the defendant posed the
intent to drive the car?13
There also are cases finding inebriated individuals liable for DUBAL who are arrested outside
their motor vehicle based on testimony that they were driving an automobile a short time before
being arrested by the police. In State v. Butler, the defendant was found inebriated one hundred
yards from his motorcycle with the key in the ignition. He was found to be in control of the motor-
cycle because he had removed the spark plug from the motorcycle and was walking toward the
store to buy a new spark plug. The arresting officer found that the defendant reeked of alcohol,
had slurred speech, and was unsteady on his feet. The Tennessee Supreme Court in affirming the
defendant’s conviction reasoned that “the only reason that the defendant’s motorcycle was not
operational at the time of his arrest was because he had just removed the sparkplug and flooded
the engine. . . . [T]he defendant admitted to driving the motorcycle to [the store] shortly before
being arrested. . . . [A] rational juror could have determined that the defendant’s vehicle was either
operable or reasonably capable of being rendered operable.”14
States generally provide for a mandatory minimum drug sentence of several days, a fine,
and brief license suspension for the first offense of DWI and impose increasingly harsh penalties
for subsequent convictions. In California, a second offense may result in a jail sentence of up to
one year, a fine of between $1,800 and $2,800, and a suspension of a driver’s license for up to
two years. The severity of the sentence will vary according to the circumstances of the offense,
including whether the driver was involved in an accident, whether a child was in the vehicle, and
whether the accident involved property damage. In several states, prosecutors are prohibited from
plea bargaining a charge of DUI, and in other states, prosecutors may offer the defendant a plea to
reckless driving.
In some states, including California, repeat offenders may have an “ignition lock” installed in
their automobile. The lock prevents individuals with a blood alcohol level above a designated level
from operating the car.
The National Highway System Designation Act of 1995 required states receiving federal high-
way funds to establish a 0.02 percent blood alcohol content as the standard for DUBAL for indi-
viduals under the age of twenty-one. This is a lower threshold than the 0.08 percent in states for
individuals twenty-one years of age and older. An individual with the required blood alcohol
content is considered to be DUBAL, and there is no obligation on the prosecution to establish
impaired driving.
Individuals under twenty-one often are prohibited from driving with any measurable amount
of blood alcohol. These so-called state zero tolerance laws are based on the fact that roughly
one-third of the deaths of fifteen- to twenty-year-olds result from motor vehicle crashes, and about
35 percent of these fatalities are alcohol related. Drunk driving laws generally are applicable to
individuals driving motorcycles and bikes but have not been extended to Segways.15
In virtually every state, an individual who is inebriated and causes an accident that results in
death will be held liable for vehicular manslaughter.
Most state courts do not recognize that involuntary intoxication is a defense to drunk driving.
This defense would impede the enforcement of DWI laws that are intended to “curb the sense-
less havoc and destruction caused by drunk driving” and “eliminate intoxicated drivers from the
roadways.”16 Courts have refused to recognize other affirmative defenses to drunk driving on the
grounds that it would open the door to defendants fabricating defenses. For example, courts have
refused to recognize the insanity defense to a charge of drunk driving17 and have refused to rec-
ognize the necessity defense to a charge of drunk driving.18 In State v. Squires, the defendant drank
so heavily at a bar that his inexperienced, seventeen-year-old nephew was required to drive the
defendant home. The car stalled in the middle of the street, and Squires took control of the car
and was arrested. The Vermont Supreme Court held that Squires had created the necessity by his
excessive drinking and was not entitled to claim necessity.19
You Decide 12.1 Charles Franklin Rogers was warmed for a few minutes, he promised his friend that
intoxicated when two police offi- he would enter his Escalade and sleep until he was safe
cers found him asleep or passed to drive. Rogers testified that once he entered his
out in the driver’s seat of his Escalade, the keys were never in the ignition but rather
Cadillac Escalade. The vehicle was were on the floorboard.
parked outside an Elks Lodge at about 2 a.m. in The electronics technician who installed the remote
Fayetteville, Arkansas. The engine was running with start said that the remote start turns on the headlights
exhaust visible from the tailpipe; the headlights and tail- and taillights and makes the auto’s accessories such
lights were on. It was a very cold night, well below freez- as the radio, heat, and air conditioning available. The
ing. Officers tapped on the window and awakened technician explained that when in remote start an indi-
Rogers from sleep. His foot appeared to the officers to vidual cannot drive the vehicle because the steering
be on the brake pedal. Rogers turned the vehicle off and is locked and the gearshift is locked. “The only way to
exited to speak to the officers. The officers testified actually move the car is to put the keys into the ignition
that the vehicle keys were recovered from the front pas- and turn the ignition to the run position, then brake
senger area of the vehicle, although the officers could and shift into gear.” Arkansas Code Annotated Section
not recall the precise location. Rogers had been taken 5-65-103(a) (Supp. 2005) provides that “[i]t is unlawful
by a friend to the Elks Lodge where they listened to and punishable as provided in this act for any person
music and drank. Later in the evening, Rogers and his who is intoxicated to operate or be in actual physical
friend went to a bar where Rogers “drank too much.” control of a motor vehicle.”
The friend drove Rogers back to the lodge where Rogers Would you convict Rogers of DWI? See Rogers v.
remote-started the Escalade. After his vehicle had State, 224 S.W.3d 564 (Ark. 2006).

On June 15, 2013, sixteen-year-old Ethan Couch emotional age of twelve and that he never learned that
and seven friends stole beer from a store and went “sometimes you don’t get your way. He had the cars
to Couch’s parents’ house to party. Later that night, and he had the money. He had freedoms that no young
Couch and seven friends took a Ford F-350 owned by man would be able to handle.”
his father’s company and headed for the store. Couch Prosecutors asked for the maximum sentence of
had a blood alcohol content of over 24 percent, three twenty years in prison. They pointed out that a court
times the legal limit for an adult in Texas, and acceler- had never before recognized the “affluenza” defense
ated the Ford F-350 to seventy miles per hour in a for- and that “affluenza” is not recognized as an illness by
ty-mph zone. The truck swerved off the road, killing four the American Psychiatric Association. Judge Jean Boyd
pedestrians, three of whom were assisting a stranded decided against following the prosecutors’ recommen-
motorist. Two teenagers riding in the bed of the pickup dation and sentenced Couch to ten years’ probation
were thrown from the vehicle. One of the young men, and ordered Couch to receive treatment at a high-
Sergio Molina, fourteen, suffered a severe brain injury priced California drug facility where he was to have
and was paralyzed. no contact with his parents. Couch’s parents were to
Couch’s parents live in a wealthy suburb of Fort pay the cost of the treatment, which is estimated to
Worth, Texas, with a median income of $250,000. be roughly $450,000 per year. Judge Boyd noted that
Couch pled guilty, and his lawyer at the sentencing it would be difficult for Couch to receive this type of
hearing called psychologist G. Dick Miller to testify. high-caliber, intensive treatment in the underfunded
Miller diagnosed Couch as suffering from “affluenza” Texas correctional system.
or a diminished sense of responsibility associated with Defense attorneys explained that it was good
being the pampered child of wealthy parents who are social policy to sentence a young person to probation
too busy to properly parent their child. Miller explained rather than to condemn him to prison and that the
that Couch “never learned to say that you’re sorry judge acted appropriately in giving Ethan a chance to
if you hurt someone. If you hurt someone, you sent rehabilitate himself. The prosecutor and families of the
him money.” Miller testified that Couch possessed an victims were outraged and asked whether a defendant
from a low-income family would have received the same Couch’s parents reached a $2 million settle-
consideration if his or her lawyer pled that the defend- ment with the family of Molina who was paralyzed in
ant’s crime was a product of the individual’s impover- the crash. Five other families also are known to have
ished background. The decision was a stark reminder reached financial confidential settlements. Judge Boyd
that there was one standard of justice for the wealthy after issuing the decision announced she would not
and another standard of justice for the poor. They also run for reelection.
pointed out that it was possible that Ethan would serve In December 2015, Couch and his mother fled to
as little as two years of the twenty-year sentence. Mexico after a video surfaced showing Couch at a party
On the other hand, defenders of the sentence with drunk and drinking friends although they were
pointed out that the court had acted appropriately quickly arrested and returned to the United States.
because the Texas juvenile justice system is built on Couch, on reaching the age of eighteen, was trans-
the notion of rehabilitation rather than punishment ferred to adult court and as a result will be required to
of youthful offenders. One journalist for the Dallas serve nearly two years in jail before his release. He will
Observer noted that “[b]ecause we condemn every- be on probation for ten years, and a violation of adult
body else’s kid to violent prisons, does that mean it probation will carry a lengthy prison term. Do you agree
is unjust to let any one kid go [outside the system]?” with Judge Boyd’s original sentence?
GAMBLING
Gambling generally is used to describe an activity that is prohibited under criminal law. Gaming
refers to activity that has been legalized by existing law or that may be exempted from coverage
of the criminal law. A card game among friends, for example, may be exempted from criminal
statutes in some states.
The early American colonists brought games of chance with them that were popular in
England, and there were few restrictions on gambling. Lotteries were used in the eighteenth and
nineteenth centuries to raise revenues for universities and to support education. By the early twen-
tieth century, gambling had become viewed as immoral and was driven underground. Unlawful
gambling, along with the illegal sale of alcohol, became the cash cow for organized crime. In 1931,
Nevada legalized most forms of gambling, and over the next thirty years, Las Vegas became known
as the center of gambling in the United States. In 1977, New Jersey established legalized gambling
in Atlantic City.
There are twenty-two states that allow commercial casinos in some form. The more than one
thousand river-based, land-based, and racetrack commercial casinos and card rooms in these states
produced a gross gaming revenue of $35.64 billion in 2011.20
Each state determines whether to allow gambling, what forms of gambling to permit, and who
may gamble. States differ on whether to permit betting on horse races and dog races, allow card or
table games, and permit slot machines and video poker and on where these forms of gambling may
be located. Some states require a minimum age for gambling, and in other states, a minimum age
is established for particular forms of gambling. In New Jersey, you can buy a lottery ticket and bet
on horse racing at age eighteen although you must be twenty-one years of age to enter an Atlantic
City casino. Every state allows gambling activities such as bingo games that benefit charities.
Native American tribes are legally entitled to establish casinos on tribal land. In 1979, the
Florida Seminole tribe began sponsoring bingo games. Native American gaming is regulated by
the federal Indian Gaming Regulatory Act of 1988, and jurisdiction over various aspects of Native
American gaming is shared by the federal and state governments and the tribes. Profits may be
used only for community welfare purposes. There are roughly 493 Native American–owned gam-
ing enterprises in twenty-eight states, owned by 244 of the 565 federally recognized tribes that
operate in twenty-eight of the fifty states. The annual revenue from all Indian gaming represents
over 40 percent of casino gaming revenue in the United States.
New Hampshire established a state lottery in 1963, which marked the first time in the twenti-
eth century that a state directly established a lottery. By 1999, thirty-seven states had established
lotteries to raise money, and as of 2016, forty-four states plus the District of Columbia have lotteries.
In the last decade, Internet gambling became enormously popular. Delaware, New Jersey, and
Nevada are the only states to have legalized Internet gambling, although several other states likely
will provide for online gambling in the near future.
The American Gaming Association divides gaming into several categories:
•• Card rooms
•• Commercial casinos
•• Charitable games
•• Native American casinos
•• Legal bookmaking on sports
•• Lotteries
•• Pari-mutuel wagering on racing
State Gambling Laws

States apply a dominant factor or predominance test to determine whether an activity constitutes
gambling. An activity involves gambling if the element of luck is the dominant factor or predominates
over skill. In People v. Hua, a New York City criminal court held that the Chinese tile game mah-jongg
involves skills such as tactics, observation, and memory and does not constitute gambling. The court
explained the legal test for determining whether a game constituted gambling21:
While some games may involve both an element of skill and chance, if “the outcome
depends in a material degree upon an element of chance,” the game will be deemed a con-
test of chance. “The test of the character of the game is not whether it contains an element
of chance or an element of skill, but which is the dominating element that determines the
result of the game?” It follows then that wagering on the outcome of a game of skill is there-
fore not gambling as it falls outside the ambit of the statute. . . . “[G]ames of chess, checkers,
billiards and bowling [are] held to be games of skill.” Three card monte, when played fairly,
has been characterized by some courts as a game of skill, while other courts have character-
ized three card monte and other similar type shell games as games of chance.
Most state statutes declare that it is a crime to possess gambling devices, and the devices are con-
fiscated if the defendant is convicted of unlawful possession.
Social gambling between friends on card games is permitted under most state statutes. This
generally is defined as a “social context” in which everyone participates in the activity and no
one profits by conducting or sponsoring the game. Some states limit the amount of money that
an individual may win in a single hand and require that the game be conducted in a residence or
other “private place.” All states allow nonprofit charitable organizations to raise money by spon-
soring certain types of gambling activities. Another common exception is “drawings” conducted
by stores in which the “winner” receives a prize. Virtually every state treats gambling as a misde-
meanor, although several states treat subsequent arrests for gambling as felonies.22
Texas Penal Code Section 47.02 is an example of a state gambling statute. The Texas law pro-
hibits a person from making a bet on the result of a game or contest or on the performance of a
participant; making a bet on the result of a political nomination, appointment, or election; or bet-
ting for money or another thing of value on any game played with cards, dice, balls, or any other
gambling device. It is a defense that
(1) the actor engaged in gambling in a private place; (2) no person received any economic
benefit other than personal winnings; and (3) except for the advantage of skill or luck, the
risks of losing and the chances of winning were the same for all participants.
A South Carolina defendant in an unusual case was convicted for sponsoring weekly games of
“Texas Hold’m.” The State Supreme Court held that the statute punished wagering in the home on
various games despite the fact that the games involved more skill than chance.23
Internet Gambling
The U.S. Congress has relied on its constitutional power to regulate interstate commerce to restrict
gambling across state lines.
The Interstate Wire Act (1961) prohibits individuals engaged in the business of betting from
knowingly using a wire (e.g., phone, computer) to transmit information relating to sports betting.24
In the 1990s, various individuals and commercial enterprises evaded the prohibition on gam-
bling within the United States by locating outside U.S. territorial boundaries and relying on the
Internet to communicate with individuals interested in betting on sports and other events. In
2006, Congress adopted the Unlawful Internet Gambling Enforcement Act (UIGEA), which prohib-
its gambling businesses from “knowingly accepting payments in connection with the participation
of another person in a bet or wager that involves the use of the internet.” UIGEA does not prohibit
individuals from placing bets. In reaction to this law, various betting enterprises stopped accepting
bets from U.S. customers.25 In 2012, the Department of Justice brought criminal charges against
several offshore Internet poker enterprises that continued to do business in the United States.
The most profound change in gambling has been the introduction of fantasy betting sites.
UIGEA provides that “unlawful wagering” does not prohibit individuals from participating in fan-
tasy sports that meet certain criteria.26 Fantasy sports betting still must meet the legal standard for
gaming under state law. Roughly forty-five states allow daily fantasy although five states define
gambling to prohibit daily fantasy. Nevada has taken the position that all fantasy sports competi-
tions constitute “gambling” under state law and require a gambling license.
Federal Gambling Laws

Congress has relied on the constitutional power to regulate interstate commerce to restrict gam-
bling across state lines. There are a number of federal laws that address gambling:
Transportation of Gambling Devices Act (1951). Prohibits the interstate shipment of gambling devices
such as slot machines to states where the betting is illegal.27
Interstate Transportation of Wagering Paraphernalia Act (1961). Prohibits the interstate shipment of
gambling material to prevent the distribution of material used in gambling.35
Interstate Wire Act (1961). Prohibits individuals engaged in the business of betting from knowingly
using a wire (e.g., phone, computer) to transmit information relating to sports betting.29
Travel Act (1961). Prohibits traveling in interstate or foreign commerce or using the mail or any
facility in interstate or foreign commerce for purposes of promoting gambling.28
Wagering Paraphernalia Act (1961). Prohibits the interstate shipment of gambling material to states
where gambling is illegal.30
Illegal Gambling Business Act (1970). As part of the Organized Crime Control Act, individuals are
prohibited from financing, managing, supervising, directing, and owning large-scale gambling
businesses that are in violation of state or local law.31
Interstate Horse Racing Act (1978). Congress regulates wagering on interstate horse racing.32
Professional and Amateur Sports Protection Act (1992). Prohibits state sports betting, with exemptions
for certain states.33
Gambling Ship Act (1994). Prohibits the use of a ship as a gambling establishment.34
Unlawful Internet Gambling Enforcement Act (2006). Prohibits gambling businesses from “knowingly
accepting payments in connection with the participation of another person in a bet or wager that
involves the use of the internet.” An exception is made for “fantasy sports.”36
CONTROLLED SUBSTANCES
The “War on Drugs”
The United States has been waging an officially proclaimed “War on Drugs” for over forty years.
President Richard Nixon, in issuing a declaration of war against drugs, characterized unlawful nar-
cotics “public enemy number one.” This campaign against unlawful drugs has been advanced by
subsequent U.S. presidents. For example, President George H. W. Bush in 1989 called drug abuse
the “most pressing problem facing the nation,” a view shared by 64 percent of the population.
President Bill Clinton also endorsed tough antidrug policies and proclaimed a “One Strike and
You’re Out” policy for residents of federally assisted public housing. President George W. Bush, on
first being elected president, declared that “this scourge [of drugs] will stop.”37
The multiprong attack on drugs involves the detection, arrest, and disruption of drug
smugglers and distribution networks; assistance to foreign countries in combating the cultivation
and production of narcotics; treatment for drug addicts; and public education on the perils of
narcotics abuse.
What has been the impact of the “War on Drugs”? The National Drug Threat Assessment (2011)
drafted by the National Drug Intelligence Center of the U.S. Department of Justice estimates that
the economic cost of illicit drug use to society is more than $193 billion per year as measured
by crime, health, and lost productivity. Drug use among young people recently has increased
after more than a decade of decline. Methamphetamine, ecstasy, marijuana, and heroin are easily
available, and the supply of cocaine remains stable after declining in recent years. An estimated
8.7 percent of Americans age twelve or older are current “illicit drug users” (21.8 million people).
Young people between the ages of eighteen and twenty-five represent the largest group of users of
unlawful drugs. The two illicit drugs that attract the greatest number of users are marijuana and
controlled prescription drugs (CPDs). Roughly seven million people are nonmedical users of CPDs.
The number of prescription drug overdose deaths is greater than the number of overdose deaths
from cocaine, heroin, and methamphetamine combined.
Transnational criminal organizations (TCOs) dominate criminal narcotic networks in the
United States. The most powerful are seven Mexican cartels that sell heroin, marijuana, and meth-
amphetamine. These cartels are active in over 1,200 American cities and generate billions of dollars
in profit. The cartels are engaged in a violent competition for control of border crossing points
from Mexico into the United States, and this violence at times spills over into adjoining U.S.
states. Each cartel commands thousands of armed gunmen, and the competition for ascendancy
has resulted in the death of over forty-seven thousand Mexican civilians and over three thousand
police officers and soldiers in the last five years. The National Drug Intelligence Center concludes
that the “threat posed by the trafficking and abuse of illicit drugs will not abate in the near term
and may increase.”38
The criminal law is a central component of the “War on Drugs.” The criminal law is used to
prosecute and to punish the abuse of unlawful and lawful drugs and to deter criminal activity.
The Evolution of American Antinarcotics Strategy

Drugs and chemicals are referred to as controlled substances because their manufacture, distri-
bution, and possession are regulated by the government.
The common law did not address the use, sale, or possession of drugs. The most important
early antinarcotics law in the United States was an 1875 San Francisco ordinance prohibiting the
smoking of opium. This law was directed against a practice that was identified with Chinese immi-
grants and was based on an irrational fear that smoking of opium would spread throughout society
and lead to a loosening of the moral fabric of the country. The San Francisco ordinance inspired
various western states to incorporate similar statutes into their criminal codes.
You may be surprised to learn that until the early twentieth century, heroin, cocaine, and
marijuana were lawfully available and were included in the ingredients of various over-the-counter
medicines used to treat health problems ranging from headaches to coughs. There was concern
over the addictive quality of these drugs, and in 1906, the U.S. Congress passed the Federal Food
and Drugs Act to ensure that medications were properly labeled and consumers were informed
about the side effects and dangers involved in consuming medications containing potentially
addictive drugs. The Food and Drug Administration (FDA) was established in 1927 with responsi-
bility for ensuring that medically important drugs were safe and accurately labeled.
The first federal criminal law punishing the nonmedical use of drugs was the Harrison Narcotics
Tax Act of 1914. The law regulated opium, morphine, and cocaine and their derivatives. Congress
drafted the law as a tax measure. Doctors, in return for paying a dollar, were authorized to prescribe
these drugs. An individual who obtained narcotics outside of the health care system was subject
to a criminal penalty of up to five years in prison and a $5,000 fine. In 1919, the U.S. Supreme
Court held that the Harrison Act was a valid exercise of the federal government’s authority to
raise revenues.39 That same year, the Court determined that prescribing drugs for narcotics addicts
“maintained” rather than medically treated their drug habit. As a consequence, the Court held
that doctors were not authorized under the act to prescribe drugs to narcotics addicts. The result
of the decision was that narcotics addicts were “driven underground” and could obtain drugs only
on the criminal black market.40
Marijuana or hemp was raised in the United States and initially was used as fiber for the manu-
facture of rope and as an ingredient of medicine. Marijuana (cannabis), in other parts of the world,
was a source of recreation and relaxation, and by the twentieth century, marijuana had become
an accepted part of the recreational drug culture in the United States. Following the repeal of the
prohibition of alcohol in 1933, federal and state authorities turned their attention to curbing
the use of marijuana. By 1937, forty-six states prohibited the growing, possession, use, and sale
of cannabis. The Marijuana Tax Act of 1937 placed a tax of $100 an ounce on anyone who dealt
commercially with cannabis, hemp, or marijuana. A failure to pay the tax was punishable by five
years in prison and a $2,000 fine. An individual who paid the tax confronted the “catch-22” that
he or she would be prosecuted for violation of state criminal laws prohibiting growing, possession,
use, and/or sale of marijuana.
The attitude toward marijuana, cocaine, and heroin became increasingly punitive. The Boggs
Act of 1951 and the Narcotics Control Act of 1956 imposed stringent mandatory sentences for
possession of marijuana, heroin, and other drugs. Marijuana was viewed as a “gateway” drug that
was the first step toward the use of more addictive narcotics. A first offense for marijuana posses-
sion and for possession of other prohibited narcotics was punished by a jail sentence of up to two
years and a fine of $20,000. A first offense for the sale of an unlawful narcotic was punished by a
jail sentence of up to five years. The Narcotics Control Act punished the sale of heroin to anyone
under eighteen with the death penalty.
The 1960s were marked by the rise of the youth-oriented counterculture and the open embrace
of marijuana and mind-altering drugs such as LSD. A popular slogan advocated that young
people “turn on, tune in, and drop out.” Congress responded by enacting the Comprehensive Drug
Abuse Prevention and Control Act of 1970,41 commonly known as the Controlled Substances Act.
The act categorizes drugs within one of five schedules. The drugs considered to have the greatest
negative impact on the mind and body and the potential for addiction are listed in Schedule I, and
the least dangerous drugs are listed in Schedule III, Schedule IV, and Schedule V (see Table 12.1).
The schedules are adjusted as new drugs are introduced. In 2000, the Date Rape Prevention Drug
Act added several “date rape drugs” to Schedule I and to Schedule III. The Controlled Substances
Act also established criminal penalties for possession, possession with intent to distribute, and the
manufacture, sale, and distribution of Schedule I and Schedule II controlled substances. Criminal
penalties in addition are provided for the possession and distribution without a prescription of
Schedule III and Schedule IV drugs.
The next major federal law addressing controlled substances was the Anti–Drug Abuse Act of
1986. The act was a reaction to the death from a drug overdose of University of Maryland basket-
ball star Len Bias, the panic over the epidemic of crack cocaine, and the fear that drug addicts were
spreading AIDS. The bill introduced stiff mandatory minimum penalties for crack and powder
cocaine. In 1988, the Anti–Drug Abuse Act was amended to authorize public housing authorities to
evict tenants who allowed drug-related criminal activity on or near public housing and strength-
ened criminal sentences. The act also established a “drug-free America” as a policy goal and created
the White House Office of National Drug Control Policy (ONDCP) headed by a “White House
drug czar.”
The Crime Control Act of 1990 and Violent Crime Control and Law Enforcement Act of 1994
increased the funds directed to state and local antinarcotics efforts, provided money for the drug
testing of inmates and for drug courts, and further stiffened criminal penalties for repeat drug
offenders. The 1998 Higher Education Act barred individuals convicted of drug possession from
receiving federal student aid.
States share jurisdiction with the federal government over narcotics offenses. The next section
provides an overview of state antinarcotics laws.
State Antidrug Laws

State drug laws generally follow the Uniform Controlled Substances Act, which was drafted in 1972
by the National Conference of Commissioners on Uniform State Laws. This is a group of experts
Table 12.1 Schedules of Controlled Substances Under the Controlled Substances Act
(1) Schedule I.
• (A) The drug or other substance has a high potential for abuse.
• (B) The drug or other substance has no currently accepted medical use in treatment in the United
States.
• (C) There is a lack of accepted safety for use of the drug or other substance under medical
supervision. Only available for research.
• (D) Includes heroin, LSD, ecstasy, peyote, marijuana, and hashish.
(2) Schedule II.

• (A) The drug or other substance has a high potential for abuse.
• (B) The drug or other substance has a currently accepted medical use in treatment in the United
States or a currently accepted medical use with severe restrictions. Requires a nonrenewable
prescription.
• (C) Abuse of the drug or other substances may lead to severe psychological or physical
dependence.
• (D) Includes morphine, opium, codeine, cocaine, methamphetamine, PCP, and barbiturates.
(3) Schedule III.

• (A) The drug or other substance has a potential for abuse less than the drugs or other substances
in Schedules I and II.
States. Requires a doctor’s prescription and may be renewed.
• (C) Abuse of the drug or other substance may lead to moderate or low physical dependence or high
psychological dependence.
• (D) Common antidiarrheals and cold medicine and pain relievers with low dosages of Schedule II
substances such as opium and codeine. Anabolic steroids added in 1991.
(4) Schedule IV.

• (A) The drug or other substance has a low potential for abuse relative to the drugs or other
substances in Schedule III.
States. Available by a prescription, which may be renewed.
• (C) Abuse of the drug or other substance may lead to limited physical dependence or psychological
dependence relative to the drugs or other substances in Schedule III.
• (D) Depressants and mild tranquilizers: Valium, Librium, and Equanil and other depressants and
mild tranquilizers and some stimulants.
(5) Schedule V.
• (A) The drug or other substance has a low potential for abuse relative to the drugs or other
substances in Schedule IV.
States. May be purchased over the counter with identification and/or signature.
• (C) Abuse of the drug or other substance may lead to limited physical dependence or psychological
dependence relative to the drugs or other substances in Schedule IV.
• (D) Includes cough medicines and antidiarrheals containing small amounts of opium, morphine, or
codeine.
Source: 21 U.S.C. § 812 – Schedules of controlled substances.
who formulated a set of “model laws” intended to guide state legislatures in addressing public
policy issues. The Uniform Controlled Substances Act adopts the organizational approach of the
federal Comprehensive Drug Abuse Prevention and Control Act and divides drugs into five sched-
ules based on the drugs’ or other substances’ potential for abuse and harm and medical value. State
drug laws typically prohibit the following acts:
•• Prohibited Acts. The manufacture, sale, and purchase of controlled substances or intent to sell
or deliver a controlled substance. It is a crime to enter into a conspiracy with the intent to
engage in any of these acts.
•• School Zones. The sale, manufacture, and possession with the intent to sell or to deliver a
controlled substance within one thousand feet of a school.
•• Prescriptions. The purchase or possession with the intent to sell controlled substances that
may not be legally conveyed absent a lawful prescription or license.
•• Children. The sale of narcotics to juveniles or involvement of juveniles in the narcotics trade.
•• Drug Paraphernalia. The possession, manufacture, delivery, or advertisement of drug
paraphernalia.
The possession of narcotics and the possession of narcotics with the intent to sell are the drug
offenses that account for most arrests.
Possession of Narcotics and Possession With Intent to Distribute Narcotics

Possession of a controlled substance is the most common drug offense. The federal Controlled
Substances Act42 requires that an individual “knowingly or intentionally possess the controlled
substances.” State criminal statutes incorporate the “knowingly” or “intentionally” mens rea
requirement of federal law. Possession may be either actual possession or constructive possession. A
person may exercise individual possession or joint possession over a controlled substance.
Establishing actual possession is relatively straightforward. An individual has actual possession
when narcotics are found in the individual’s physical possession or immediate physical presence.
The prosecution to prove actual possession is required to establish that the defendant (1) knew of the
presence of the “object,” (2) exercised dominion and control over the object, and (3) had knowl-
edge of the narcotic’s “unlawful character.” Dominion and control are established for purposes of
actual possession if the drugs are in the individual’s physical control or within reach. What of the
intent requirement? The defendant is required to know only that the substance is an unlawful con-
trolled substance and is not required to know the precise type of unlawful narcotic over which he
or she is exercising “dominion and control.” In United States v. De La Torre, the defendant conceded
that he knew there was marijuana in his backpack, although he claimed that he was unaware that
methamphetamines also were in his backpack. The Tenth Circuit Court of Appeals nonetheless
affirmed the defendant’s conviction for possession of methamphetamine. The court held that
the prosecution can establish the mens rea for possession by establishing that the defendant knew
that he possessed an unlawful substance, and that the prosecution is not required to establish that
the defendant knew that he or she possessed a specific category of unlawful substance. The Tenth
Circuit explained in De La Torre that
[o]nce it is established that the defendant had the requisite guilty mind to possess some
controlled substance within the universe of all controlled substances, it has established the
mens rea necessary to establish the possession element with respect to any and all drugs
the defendant actually possessed. . . . The Government is not required . . . to prove that
the controlled substance the defendant actually possessed corresponds to the controlled
substance the defendant believed he possessed.43
A defendant also may be held guilty who has constructive possession over a controlled
substance. Constructive possession is established when a defendant who does not have physical
possession over a controlled substance has “dominion and control” over the area in which the
narcotics are found. An individual may share constructive possession with another individual who
also exercises “dominion and control” over the area. In State v. Harrison, the defendant was arrested
outside his apartment in which the police seized narcotics, large amounts of cash, and weapons
and arrested the defendant’s wife. He was convicted of constructive possession of a firearm while
in the course of committing a drug offense, based on his control over the apartment.44
Constructive possession cases are particularly challenging for courts when there are multiple
parties who have access to an automobile or to an apartment in which controlled substances
are found. Mere presence in the car or house is not sufficient to convict a defendant of drug
possession. Courts require evidence connecting the defendant to the controlled substance. The
prosecution “must point to evidence of acts, statements, or conduct of the accused or other facts
or circumstances which tend to show that the defendant was aware of both the presence and
character of the substance and that it was subject to his dominion and control.” A Minnesota
appellate court, for example, overturned a defendant’s conviction for possession of cocaine found
in the pockets of pants seized in her bedroom. The court stressed that six people were in the
defendant’s house for an hour after she had left and there was “no . . . evidence linking [her] to
the cocaine, such as fingerprints or DNA on the baggie containing the cocaine, or evidence that
appellant had cocaine in her system or a history of using cocaine.” The evidence did not “exclude
the possibility that someone other than the defendant possessed the narcotics.”45
The prosecution in these multiparty cases looks for an affirmative link between the defen-
dant and the controlled substance. This might be a combination of evidence such as a fingerprint
on a package, the individual’s possession of a large amount of cash, whether the defendant has
exclusive control over the area in which the narcotics are seized, the defendant’s demeanor when
confronted by the police, whether the defendant was in actual possession of drug paraphernalia or
narcotics, and any incriminating statements made by the accused.46
Some state courts and the federal courts have held defendants liable for possession of small
quantities of narcotics. The central question for most courts is whether the defendant knowingly
possessed the small amount of illicit narcotics or whether the defendant was unaware of the small
amount of illicit narcotics.47 California, in contrast, limits liability to a “useable amount.” The
quantity of the drug must be sufficient to have a narcotic effect. The California Supreme Court
held that “in penalizing a person who possesses a narcotic the Legislature proscribed possession
of a substance that has a narcotic effect. . . . It did not refer to useless traces or residue of such
substance. Hence, the possession of a minute crystalline residue of narcotic useless for either sale
or consumption . . . does not constitute sufficient evidence in itself to sustain a conviction.”48 In
People v. Rubacalba, the California Supreme Court held that one-tenth of a gram or one hundred
milligrams of cocaine was a usable quantity. The court explained that the “quantity rule prohibits
conviction only when the substance possessed simply cannot be used, such as when it is a black-
ened residue or a useless trace. It does not extend to a substance containing contraband, even if
not pure, if the substance is in a form and quantity that can be used.”49
The prosecution of drug traffickers or individuals who transport and/or sell narcotics is based
on federal and state statutes punishing unlawful possession with intent to distribute a con-
trolled substance. These laws make it a crime to possess a controlled substance with the intent
to sell or transfer the narcotic. Federal law provides that “it shall be unlawful for any person
knowingly or intentionally . . . to . . . possess with intent to manufacture, distribute, or dispense
a controlled substance.”50 Similar text is incorporated into most state criminal codes. Actual deliv-
ery may be established by proof that the defendant sold or transferred narcotics to an undercover
agent or that he or she is observed or is videoed selling or distributing narcotics.
Possession with intent to distribute narcotics requires that the prosecution establish that “the
defendant knowingly and intentionally possessed the drug, and that he did so with the specific
intent to distribute it.” The question confronting a court in many instances is whether the defen-
dant is in actual or constructive possession of the drugs with the intent to distribute or whether the
defendant merely has the intent to possess the drugs.
The three factors listed below are relied on by courts in determining whether an individual
possessed narcotics with the intent to distribute or possessed the narcotics for personal use.
1. Quantity. The defendant possesses more narcotics than are required by a single individual.
A small amount of narcotics may not be determinative because the individual already may
have sold most of the drugs in his or her possession.
2. Value. Addicts and recreational drug users typically cannot afford to possess a valuable
cache of narcotics for personal use.
3. Drug paraphernalia. Items are discovered that are associated with an intent to distribute
narcotics, such as a scale to weigh narcotics and packaging material.
In State v. Smith, a Louisiana appellate court affirmed the defendant’s conviction for posses-
sion with intent to distribute the cocaine and heroin that was seized from clothes in his bedroom.
The court noted that the defendant’s intent to sell could be inferred from the presence of plastic
baggies for packaging the narcotics; razor blades, scales, and measuring devices, all of which are
used in preparing drugs for sale; and $1,330 in cash, most of which was in $20 bills. The court
considered it important that these items were discovered in the defendant’s bedroom rather than
in the kitchen where many of these items ordinarily are stored. Other circumstantial evidence or
evidence that, in totality, created an inference of an intent to sell included multiple cell phones
and weapons that might be intended to be used to protect the cache of drugs. The court also found
it significant that the defendant had a previous conviction for selling narcotics. The appellate court
credited the testimony of a police officer “that nine grams of powder cocaine would cost about
$350.00 or $400.00 and would be much more than the amount generally obtained by an addict
for personal consumption.” The officer also testified that there was an absence of items ordinarily
employed for personal use such as “needles, spoons, metal objects, bottle caps, straws, a rolled up
piece of paper, or a dollar bill, to ingest the drugs they obtain.”51
In a Massachusetts case, an appellate court affirmed the defendant’s conviction for possession
with intent to sell narcotics based on the fact that the defendant was found with “three individu-
ally wrapped rocks of crack cocaine, had $312 in cash in his pocket, and carried no paraphernalia
for ingesting the drugs. . . . [T]he defendant [when arrested] had been located in an area known
for drug sales for at least an hour, and was in the company of an individual who conducted a
drug transaction in his presence.” The court concluded that “the inference of an intent to distrib-
ute . . . is both reasonable and possible.”52
In contrast, an Ohio court found that a defendant had not been in possession of narcotics
with intent to distribute where the defendant was in possession of three unwrapped rocks of crack
cocaine weighing an ounce, where he was not in an area known for drug use, and where his
mother testified that she had given him the several thousand dollars in his possession to hire a
lawyer to represent him in another case.53

Determinate sentences have the advantage of being pre-
5-Year Mandatory Minimum
dictable, definite, and uniform. On the other hand, this
“one size fits all” approach may prevent judges from Previous law 5 g crack/500 g powder cocaine
tailoring sentences to the circumstances of a specific
case. A particularly controversial area of determinate New law 28 g crack/500 g powder cocaine
sentencing is mandatory minimum drug offenses. In
10-Year Mandatory Minimum
1975, New York governor Nelson Rockefeller initiated
the controversial “Rockefeller drug laws” that required Previous law 50 g crack/5,000 g powder
that an individual convicted of selling two ounces of a cocaine
narcotic substance or of possessing eight ounces of a
narcotic substance receive a sentence of between eight New law 280 g crack/5,000 g powder
and twenty years, regardless of the individual’s criminal cocaine
history. The New York model in which a judge must sen-
tence a defendant to a minimum sentence was followed
by other states. The federal government joined this trend
and introduced mandatory minimum sentences in the The most debated aspect of federal law is the
Anti–Drug Abuse Act of 1986 and its 1988 amendments. punishment of an individual based on the type and
amount of drugs in his or her possession, regardless
of the individual’s criminal history. Under the previous
Fair Sentencing Act of 2010: Punishment Based federal law, a conviction for possession with intent to
on Type and Amount of Drugs in Possession distribute five grams of crack cocaine or five hundred
grams of powder cocaine resulted in the same five-year
Possession of 5 Grams of Crack Without the Intent sentence. Fifty grams of crack cocaine and five kilo-
to Distribute grams of powder cocaine triggered the same ten-year
sentence. The Fair Sentencing Act of 2010 reduced
Previous law 5-year mandatory minimum
the hundred-to-one ratio between crack and powder
New law No mandatory minimum
(Continued)
(Continued)
cocaine to eighteen to one to trigger the five- and ten- The following quantities are punishable by ten
year mandatory minimums. years in prison under federal law:
The thinking behind the previous law was that
crack is sold in small, relatively inexpensive amounts •• 1 kilogram of heroin
on the street and that the ease of access to crack •• 5 kilograms of powder cocaine
leads to individuals becoming addicts who threaten •• 280 grams of crack cocaine
the safety and welfare of communities. The profitability •• 1,000 kilograms of marijuana
of the “crack trade” leads to street violence between
street gangs competing for control of the drug trade. Congress softened the impact of the mandatory
The law was criticized for resulting in the dispropor- minimum drug sentences by providing that a judge
tionate arrest and imprisonment of African American may issue a lesser sentence in those instances in
gang members for lengthy terms while Caucasian sell- which prosecutors certify that a defendant has pro-
ers and users of powder cocaine received much less vided “substantial assistance” in convicting other
severe prison terms. drug offenders. There also is a safety valve that per-
The sentencing reform law, as noted, reduces the mits a reduced sentence for defendants determined
hundred-to-one ratio to eighteen to one. This means by the judge to be low-level, nonviolent, first-time
that 28 grams of crack trigger a five-year mandatory offenders.
minimum and 280 grams of crack trigger a ten-year Prosecutors argue that the mandatory minimum
mandatory minimum. The triggering weights for powder sentences are required to deter individuals from
cocaine remain the same. The law also eliminated the entering into the lucrative drug trade. The threat of a
previous five-year mandatory minimum for simple pos- lengthy sentence also is necessary in order to encour-
session (without the intent to distribute) of five grams age the cooperation of defendants. Prosecutors
of crack cocaine by first-time offenders. Roughly twelve stress that individuals who are convicted and sen-
states continue to punish possession of crack cocaine tenced were fully aware of the consequences of their
with the same sentence as a greater amount of pow- criminal actions.
der cocaine. These mandatory minimum laws nevertheless
It is estimated that the new law will reduce sen- have come under attack by both conservative and lib-
tences for crack-cocaine-related offenses by an aver- eral politicians, by the American Bar Association, and
age of twenty-seven months in prison and save the by the Judicial Conference, which is the organization
government $42 million during the next five years. The of federal judges. An estimated twenty-seven states,
act took effect when President Barack Obama signed including Maryland and Connecticut, have recently
the law on August 3, 2010. Almost a year later, the modified or are considering amending their mandatory
new law was applied retroactively to allow thousands minimum narcotics laws. New York also modified the
of individuals sentenced under the “old law” to peti- Rockefeller drug laws in 2004 when Governor George
tion a court to reduce their sentence. In June 2012, Pataki signed the Drug Law Reform Act, and its legis-
the Supreme Court held that new, more lenient penalty lators are contemplating abandoning determinate sen-
provisions apply to offenders who committed a crack tences for drug offenders. This trend is encouraged by
cocaine offense before the law went into effect and are studies that indicate that these laws have the following
sentenced after the date that the law went into effect. problems:
The Court reasoned that sentencing these offenders
under the old sentencing scheme would “seriously •• Inflexibility. They fail to take into account the
undermine . . . uniformity and proportionality in sen- differences between defendants.
tencing” (Dorsey v. United States, 132 S. Ct. 2321, 567 •• Plea Bargaining. Drug kingpins are able to trade
U.S. ___ [2012]). information for reduced sentences.
The following quantities are punishable by five •• Prosecutorial Discretion. Some prosecutors who
years in prison under federal law: object to the laws charge defendants with the
possession of a lesser quantity of drugs to
•• 100 grams of heroin avoid the mandatory sentencing provisions.
•• 500 grams of powder cocaine •• Increase in Prison Population. The laws are
•• 28 grams of crack cocaine thought to be responsible for the growth of the
•• 100 kilograms of marijuana state and federal prison population.
•• Disparate Effects. A significant percentage of President Obama indicated his concern for man-
individuals sentenced under these laws are datory minimum sentences for drug offenses when in
African Americans or Hispanics involved in December 2013 he commuted the sentences of eight
street-level drug activity. The increase in the federal prisoners convicted of crack cocaine offenses.
number of women who are incarcerated is All of these individuals had served at least fifteen years
attributed to the fact that females find them- in prison; six were sentenced to life imprisonment. The
selves arrested for assisting their husbands or defendants had been sentenced under the hundred-
lovers who are involved in the drug trade. to-one sentencing disparity between powder and crack
cocaine, and President Obama noted that the inmates
In Hutto v. Davis, the U.S. Supreme Court upheld would have received significantly shorter sentences
the constitutionality of mandatory minimum state drug under current reformed drug laws and already would
laws. The Court reasoned that Hutto’s forty-year prison have completed their sentences. Clarence Aaron, for
sentence and $20,000 fine was not disproportionate example, was sentenced to three life terms for a drug
to his conviction on two counts of possession with crime committed when he was twenty-two years old.
intent to distribute and the distribution of a total of Stephanie George received a life sentence in 1997 at
nine ounces of marijuana with a street value of roughly age twenty-seven based on allowing her boyfriend to
$200. The Court held that the determination of the store crack in a box in her home.54
proper sentence for this offense was a matter that was The Obama administration and states such as Texas,
appropriately determined by the Virginia legislature New York, Colorado, Michigan, and Arkansas have taken
(Hutto v. Davis, 454 U.S. 370 [1982]). important steps to minimize the impact of mandatory min-
A number of judges complain about mandatory minimum sentences on low-level, nonviolent drug offenders
imum sentences. In 2012, now retired federal district and on other nonviolent offenders. For example, in April
court judge John Gleeson stated in United States v. Dossie 2014, Attorney General Eric Holder announced Clemency
that mandatory minimum sentences were intended to be Project 2014 providing that nonviolent, low-level incarcer-
used against high-level drug “masterminds” and “manag- ated felons who had served at least ten years and would
ers” and that prosecutors were abusing the law by asking have received a lesser sentence under current reformed
judges to impose these harsh mandatory minimum sen- federal laws would be considered for clemency. The pri-
tences on low-level street dealers. Dossie was convicted mary beneficiaries are the roughly eight thousand drug
as an “intermediary in four hand-to-hand crack sales, offenders sentenced before Congress’s 2010 reform of
for which he made a total of about $140.” Prosecutors the punishment for crack cocaine offenses. President
asked for a “harsh” mandatory sentence because two of Obama has granted clemency to hundreds of federal
the sales were slightly beyond the twenty-eight-gram limit. offenders, most of whom were incarcerated for low-level,
Judge Gleeson explained that his “hands were tied” and nonviolent narcotics offenses,55 including a significant
that he was compelled to impose an “unjust” five-year number in the last year of his presidency.56
prison term on Dossie. “Just as baseball is a game of What do you think about the argument that manda-
inches,” Judge Gleeson complained, “our drug-offense tory minimum sentences are so disproportionate and
mandatory minimum provisions create a deadly serious impose such hardship that jurors should refuse to con-
game of grams” (United States v. Dossie, 851 F. Supp. 2d vict defendants charged with quantities of narcotics
478 [E.D.N.Y. 2012]). carrying mandatory minimum sentences?57
You Decide 12.2 Kody Farmer suffered from (a painkiller) and Soma (a muscle relaxer). Four days prior
chronic back pain stemming from a to his arrest for driving while intoxicated (DWI), Farmer also
work-related injury and underwent was prescribed Ambien to combat his insomnia. Farmer
back surgery. Farmer, for roughly typically took the Ultram and Soma, both of which contain
a decade, took a variety of warning that they may induce drowsiness, before taking a
different medications to relieve his pain including Ultram shower in the morning and driving to work.
(Continued)
(Continued)
The Ultram and Ambien pills resemble one another. bloodstream, and his wife testified that the Ambien
On the morning of Farmer’s accident, his wife laid out she laid out for him in the morning was gone. Farmer
his Ultram (and Soma) and Ambien on their microwave, appealed his conviction for DWI to the Texas Court of
but she separated the pills so that the appellant would Criminal Appeals on the grounds that his conviction was
take the Ambien at night because “both his doctor and based on an involuntary act because he did not recall tak-
his pharmacist recommended that he be within mining the Ambien and did not intentionally take the Ambien.
utes of going to bed before taking Ambien.” Following Would you convict Farmer of DWI? See Farmer v.
Farmer’s arrest for DWI, Ambien was found in his State, 411 S.W.3d 901 (Tex. Ct. of Crim. App. 2013).
In July 2014, the influential New York Times endorsed legalization of marijuana and pointed out that a majority of
adults favor legalization and that there are considerable social costs associated with continuing to criminalize
marijuana. For instance:
Arrests. From 2001 to 2010, there were 8.2 million marijuana arrests. Roughly nine out of ten were for
possession. In 2010, there were 750,000 arrests involving marijuana, and in 2011, there were more arrests
for marijuana than for all violent crimes.
Racial Disparity. Whites and African Americans use marijuana at comparable rates although African Americans
are 3.7 times more likely to be arrested than whites.
Economics. The estimated cost of enforcing laws on marijuana possession is $3.6 billion.
Public Safety. Arresting individuals for marijuana does not remove dangerous individuals from society. Ninety
percent of individuals imprisoned for marijuana possession have no history of violence. Marijuana arrests
also contribute to prison overcrowding. Table 12.2 lists the punishment for federal marijuana offenses, and
Table 12.3 lists the sentences for marijuana offenses in Florida.
Disabilities. Many marijuana arrests for possession are misdemeanors, and individuals are not imprisoned. A
conviction, however, may result in the revocation of a professional license or suspension of a driver’s license,
and prevent an individual from obtaining a mortgage to buy a home or obtain a student loan.
The Obama administration responded to the New York Times by recognizing that there are credible concerns
about “disproportionality [of sentencing] throughout our criminal justice system” and justifiable concerns about
the classification of marijuana as a Schedule I offense. Marijuana, however, is “addictive and marijuana use has
harmful consequences. . . . Addictive substances like alcohol and tobacco, which are legal and taxed, already
result in much higher social costs than the revenue they generate.” Consider, for example, the costs and public
safety concerns that at present are created by drivers who are “high” on marijuana and the fact that some indi-
viduals will start with marijuana and transition to more powerful narcotics. Should marijuana be legalized? What
is your view?
Marijuana
Marijuana is punished under both federal and state law. Roughly 760,000 arrests are made each
year for the possession or the distribution of marijuana. This total constitutes roughly half of all
arrests for the possession, sale, or manufacture of illicit drugs. Ninety-nine percent of prosecutions
are under state law.
Roughly fifteen states and numerous cities have decriminalized the possession of small
amounts of marijuana, and they punish the first offense for possession of small amounts of
marijuana with a fine, much like a traffic ticket. One example of the decriminalization of
marijuana is the Nebraska statute. First-offense possession is a civil infraction resulting in
a citation rather than in an arrest, and it carries a $300 fine along with attendance at a drug
education course. Second-offense possession of up to an ounce results in a $400 fine and up to five
days in jail, and third-offense possession is punished by up to a week in jail and a $500 fine. In
November 2012, voters in Detroit and in four other Michigan cities voted to decriminalize posses-
sion of small amounts of marijuana.
In 1991, a Florida appellate court held that a couple who had contracted AIDS as a result of a
blood transfusion and who were arrested for marijuana possession were entitled to rely on the defense
of medical necessity to justify their use of marijuana. “Jenks obviously did not intend to contract
AIDS. Furthermore, the Jenks[es]’ medical expert and physician testified that no drug or treatment is
available that would effectively eliminate or diminish the Jenks[es]’ nausea. Finally, the Jenks[es] estab-
lished that if their nausea was not controlled, their lives were in danger.” Critics of the decision viewed
medical necessity as a “slippery slope,” which ultimately would lead to the legalization of marijuana.
President George W. Bush directed the Department of Justice to bring criminal charges under
the federal Controlled Substances Act against individuals and dispensaries involved in medical
marijuana. In 2001, the Supreme Court provided support for federal prosecutions of individuals
using medical marijuana when it held that the federal Controlled Substances Act does not recog-
nize an exemption from criminal liability for marijuana possession based on medical necessity.58
Despite the U.S. Supreme Court decision, various states adopted medical marijuana laws.
These states claimed that their state law authorizing individuals to use marijuana based on medical
necessity took precedence over the federal prohibition on marijuana.
In 2005, in Gonzales v. Raich, the Supreme Court addressed the conflict between the California
medical marijuana law that decriminalized marijuana and the federal prohibition on marijuana
possession.59
California voters passed Proposition 215, the Compassionate Use Act of 1996, to ensure that
“seriously ill” residents of California are able to obtain marijuana. The act provides an exemption
from criminal prosecution for doctors who authorize patients to possess or cultivate marijuana
for medical purposes. Angel Raich and Diane Monson, two California residents, suffer from severe
medical disabilities. Their doctors found that marijuana is the only drug that is able to alleviate
their pain and suffering. Raich’s doctor went so far as to claim that Angel’s pain is so intense that
she may die if deprived of marijuana. Marijuana enables her to live a fairly normal life and to avoid
being confined to a wheelchair. Monson cultivates her own marijuana, and Raich relies on two
caregivers who provide her with California-grown marijuana at no cost.
Federal agents raided Monson’s home and destroyed all six of her marijuana plants. Monson
and Raich along with several doctors and patients asked the Supreme Court to rule on the fed-
eral government’s refusal to exempt medical marijuana users from criminal prosecution and
punishment. The U.S. Supreme Court held that the federal prohibition on the possession of mar-
ijuana would be undermined by exempting marijuana possession in California and other states
from federal criminal enforcement. The Court explained that the cultivation of marijuana under
California’s medical marijuana law, although clearly a local activity, frustrated the federal govern-
ment’s effort to control the shipment of marijuana. This marijuana grown in California inevitably
would find its way into interstate commerce, increase the nationwide supply, and drive down the
price of the illegal drug. There was also a risk that completely healthy individuals in California
would manage to be fraudulently certified by a doctor to be in need of medical marijuana. Three of
the nine Supreme Court judges dissented from the majority opinion. Justice Sandra Day O’Connor
observed that the majority judgment “stifle[s] an express choice by some States concerned for the
lives and liberties of their people, to regulate medical marijuana differently.”
Twenty-five states recognize medical marijuana. In October 2012, the Connecticut legislature
voted for medical marijuana. Connecticut law provides that an individual who is qualified to
possess marijuana and who is registered with the Department of Consumer Protection may pos-
sess “an amount of usable marijuana reasonably necessary to ensure . . . availability for . . . one
month.” Approved conditions include “[c]ancer, glaucoma, positive status for human immunode-
ficiency virus or acquired immune deficiency syndrome [HIV/AIDS], Parkinson’s disease, multiple
sclerosis, damage to the nervous tissue of the spinal cord with objective neurological indication of
intractable spasticity, epilepsy, cachexia, wasting syndrome, Crohn’s disease, posttraumatic stress
disorder, or any medical condition, medical treatment or disease approved by the Department of
Consumer Protection.”
In November 2012, voters in Colorado and in Washington adopted ballot measures that
resulted in these two jurisdictions becoming the first two states to legalize marijuana. Oregon
oters rejected a similar referendum. It appears that the federal government will not enforce
v
federal criminal laws against individuals in Colorado and in Washington whose cultivation,
possession, or sale of marijuana is in compliance with state law.
Fifty-five percent of Colorado voters approved Amendment 64 legalizing the personal use of
marijuana by individuals who are at least twenty-one years of age. The state legislature subse-
quently enacted regulations licensing the commercial production and sale of cannabis. Private
possession of up to one ounce of marijuana is legal, and private cultivation of up to six marijuana
plants is lawful. Individuals are free to transfer one ounce of marijuana so long as no money
exchanges hands. Cannabis is prohibited from being smoked in public, and there are restrictions
on driving while under the influence of marijuana. The sale of marijuana is strictly regulated, and
consumers may purchase up to an ounce of “pot.” Individuals who grow and traffic in marijuana
in violation of Colorado law are subject to federal arrest and prosecution. Voters in Alaska, Oregon,
and the District of Columbia in November 2014 overwhelmingly approved ballot measures legal-
izing marijuana for adults at least twenty-one years of age subject to restrictions that are similar
to Colorado. Fifty-eight percent of individuals polled nationwide favor marijuana legalization as
compared to 12 percent of individuals who favored marijuana legalization in 1969.
One interesting aspect of the regulation of marijuana involves the use of marijuana as a reli-
gious sacrament. In 2006, in Gonzales v. O Centro Espirita, the Supreme Court held that the govern-
ment failed to demonstrate a “compelling interest” in prohibiting a religious group from drinking
a ceremonial tea drink called hoasca, which contains DMT, a prohibited substance under Schedule
I of the Controlled Substances Act. The Court rejected the government’s argument that there could
be no exemption from the requirements of the law for a religious group, based on the fact that
Native Americans have been permitted to use peyote as a sacrament for the past thirty-five years.60
Table 12.2 Federal Marijuana Penalties

Possession A first offense for possession of marijuana is punishable by up to one year in jail and a
minimum fine of $1,000 for a first conviction. A second conviction results in a fifteen-day
mandatory minimum sentence with a maximum of two years in prison and a fine of up
to $2,500. Additional convictions carry a ninety-day mandatory minimum sentence and a
maximum of up to three years in prison and a fine of up to $5,000.
Manufacture Manufacture or distribution of less than fifty plants or fifty kilograms of marijuana is
or distribution punishable by up to five years in prison and a fine of up to $250,000. The sentence for
fifty to ninety-nine plants or fifty to ninety-nine kilograms is enhanced to up to twenty
years in prison and a fine of up to $1 million. Manufacture or distribution of 100 to 999
plants or 100 to 999 kilograms carries a punishment of five to forty years in prison and
a fine of $2 million to $5 million. The penalty for one thousand plants or one thousand
kilograms or more is from ten years to life in prison and a fine of $4 million to $10
million.
Distribution Distribution of more than five grams of marijuana to an individual under the age of twenty-
to a minor one is punishable by twice the normal sentence. Distribution within one thousand feet
of a school, playground, or public housing, or within one hundred feet of a youth center,
public pool, or video arcade, also enhances the possible penalties.
Paraphernalia The sale of paraphernalia is punishable by up to three years in prison.
Death penalty The sentence of death can be imposed on a defendant who has been found guilty of
manufacturing, importing, or distributing a controlled substance if the act was committed
as part of a continuing criminal enterprise in those instances in which the defendant is
a central leader; the quantity of the controlled substance is sixty thousand kilograms or
more of a mixture or substance containing a detectable amount of marijuana, or sixty
thousand or more marijuana plants; or the enterprise received more than $20 million in
gross receipts during any twelve-month period of its existence.
Source: Federal Laws & Penalties, http://norml.org/laws/item/federal-penalties-2.

Table 12.3 Florida Marijuana Laws

Possession Prison Fine
20 grams or less Misdemeanor 1 year $ 1,000
More than 20 grams–25 pounds Felony 5 years $ 5,000
More than 25–less than 2,000 pounds Felony 3*–15 years $ 25,000
2,000–less than 10,000 pounds Felony 7*–30 years $ 50,000
10,000 pounds or more Felony 15*–30 years $200,000
Fewer than 25 plants Felony 5 years $ 5,000
25–300 plants Felony 15 years $ 10,000
300–2,000 plants Felony 3*–15 years $ 25,000
2,000–10,000 plants Felony 7*–30 years $ 50,000
Within 1,000 feet of a school, college,

Felony 15 years $ 10,000
park, or other specified areas
* Mandatory minimum sentence
Sale
20 grams or less without remuneration Misdemeanor 1 year $ 1,000
25 pounds or less Felony 5 years $ 5,000
More than 25–less than 2,000 pounds (or

Felony 3*–15 years $ 25,000
300–2,000 plants)
2,000–less than 10,000 pounds (or

Felony 7*–30 years $ 50,000
2,000–10,000 plants)
10,000 pounds or more Felony 15*–30 years $200,000
Within 1,000 feet of a school, college,

Felony 15 years $ 10,000
park, or other specified areas
* Mandatory minimum sentence
Hash and Concentrates
Possession of hashish or concentrates Felony 5 years $ 5,000
Selling, manufacturing, or delivering Felony 5 years $ 5,000
Paraphernalia
Possession of paraphernalia Misdemeanor 1 year $ 1,000
Miscellaneous
Conviction causes a driver’s license suspension for a period of 1 year
Crystal Meth
Homemade methamphetamine, popularly known as “crystal meth” or “crank,” is the illicit “drug
of choice” among a large number of young people. The highly addictive drug is manufactured
with ingredients available over the counter. Individuals producing crystal meth nonetheless run
a significant risk. The manufacture of the drug requires the use of highly unstable chemicals,
which easily are ignited accidentally during the manufacturing process. The toxic nature of these
chemicals when disposed of threatens the natural environment.
Crystal meth laboratories generally are located in rural areas and often are detected only as a
result of an explosion, a fire, or environmental pollution. In 2005, Congress passed the Combat
Methamphetamine Epidemic Act. The law regulates over-the-counter purchases of precursor chem-
icals for manufacturing crystal meth. The law makes several important contributions to combating
crystal meth:
•• Penalties. Penalties are increased for smuggling and selling methamphetamine.

•• Chemicals. Precursor chemicals used to manufacture methamphetamine are required to
be stored behind the counter in a locked display case, and a customer may buy only 3.6
grams per day and 9 grams per month. These chemicals ordinarily are found in cold and
sinus products and in appetite suppressants. They include ephedrine, pseudoephedrine, and
phenylpropanolamine.
•• Logbook. Stores must keep a record of purchasers to prevent an individual from going from
one store to another so as to purchase an unlimited amount of the chemicals.
The law punishes possession of both methamphetamine and paraphernalia used to ingest
crystal meth.
PRESCRIPTION DRUGS
A major concern of both federal and state law is the abuse of prescription drugs, particularly pain-
killers. New Jersey law provides harsh penalties for the possession of prescription drugs not pre-
scribed by a licensed health professional, the unlawful distribution of these drugs, the forgery of a
prescription, acquiring prescription drugs by fraud or forgery, and the theft of blank prescription
forms. An individual who is under the influence of a prescription drug that is unlawfully obtained
is subject to a penalty of six months in prison and $1,000 in fines.61
Drug Paraphernalia
The federal drug paraphernalia statute, 21 U.S.C. § 863, prohibits the sale or offer for sale, ship-
ment through interstate commerce, or importation or exportation of drug paraphernalia. A con-
viction is punishable by up to three years in prison, a fine, and forfeiture of paraphernalia. Drug
paraphernalia includes “items” primarily intended or designed for the manufacture, processing,
preparing, or concealing of narcotics and items primarily used in injecting, ingesting, or inhaling
marijuana, cocaine, and hashish or another controlled substance.
State laws include provisions that are similar to the federal statute, and they also prohibit the
possession of drug paraphernalia with the intent to use the “item” to ingest unlawful narcotics.
The California Health and Safety Code, in part, provides that “[i]t is unlawful to possess an opium
pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or
smoking . . . a controlled substance.”62
Texas Health and Safety Code Section 481.125 provides that individuals may be charged with
possession of drug paraphernalia if they knowingly or intentionally “possess an item that is used
to plant, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test,
analyze, pack, repack, store, contain, inject, ingest, inhale, introduce into the body or conceal a con-
trolled substance.” The possession of drug paraphernalia with the intent that the item is to be used
for ingesting illicit narcotics is punished with a fine not to exceed $500. Possessing, selling, or man-
ufacturing paraphernalia knowing or intending that the paraphernalia is to be delivered or sold to
another individual for use of illicit narcotics is punishable by up to one year and a fine not to exceed
$4,000. Selling paraphernalia to a minor is a felony punishable by a mandatory minimum sentence of
180 days’ imprisonment, a maximum of two years’ imprisonment, and a fine not to exceed $10,000.
The justification for criminalizing paraphernalia is that it deters individuals from possessing or
transferring devices required to ingest controlled substances. The prosecution to convict an indi-
vidual for possession of paraphernalia is required to establish beyond a reasonable doubt that the
individual intended to use the paraphernalia to ingest a controlled substance.63
Commentators criticize the criminalization of drug paraphernalia because most of these items
and devices may be used in a legal fashion and pose a danger only when used to manufacture or to
ingest controlled substances. Critics argue that it makes more sense to punish the actual possession
of drugs rather than to punish devices that may be used to manufacture or to take narcotics. The
prosecution also is able to “pile on the punishment” by holding a defendant liable for possession
of narcotics as well as for possession of a hypodermic needle. Does it make sense for the law to
punish possession of a pipe or cigarette rolling paper that may be lawfully used to smoke tobacco
and also may be unlawfully used to smoke crack? Should the law be limited to criminalizing the
sale of these items?
Another criticism of paraphernalia laws is that the definition of drug paraphernalia in criminal
statutes in some instances is vague and does not always clearly inform individuals of the items
and devices that are prohibited under the law. The Eighth Circuit Court of Appeals held that an
ordinance that prohibits items “suitable to be used for smoking controlled substances” was “void
for vagueness.”64 However, in Hoffman Estates v. Flipside, the U.S. Supreme Court discouraged these
types of constitutional challenges to paraphernalia laws when the Court held that a local ordi-
nance prohibiting merchants from selling drug “paraphernalia . . . designed or marketed for use
with illegal cannabis or drugs” was not unconstitutionally “void for vagueness.” The Court rea-
soned that a reasonable businessperson would know that the statute prohibited the sale of items
such as a “roach clip, rolling paper, and pipe.”65
Paraphernalia laws, nonetheless, continue to create uncertainty when a device may be used
to ingest tobacco as well as narcotics. In People v. Carreon, Carreon was convicted of possession of
marijuana and drug paraphernalia. The paraphernalia was a cigar loaded with cannabis. The Illinois
appellate court acquitted the defendant on the grounds that the Illinois statute stated that drug par-
aphernalia did not include “[i]tems historically and customarily used in . . . ingesting or inhaling of
tobacco, . . . tobacco pipes, and cigarette rolling papers.” The court explained that “although some-
times used to ingest cannabis, cigars are historically and customarily used for the legal ingestion of
tobacco. Accordingly, we hold that cigars are not included in the definition of drug paraphernalia
under the Act, and defendant’s conviction of possession of drug paraphernalia must be reversed.”66
Individuals unlawfully involved with controlled substances, in addition to criminal punish-
ment, risk the forfeiture of property.
Assets Forfeiture
The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 853, provides that
an individual convicted of a federal narcotics offense punishable by at least a year of imprisonment
shall forfeit property “derived from such violation, used to commit or to facilitate the commission of
the violation along with any of the person’s property intended to be used . . . to commit, or to facil-
itate” the commission of the narcotics offense. States all have forfeiture laws similar to the federal
law.67 Between 1989 and 2010, an estimated $12 billion in assets were seized by federal prosecutors.
Assets forfeiture has been criticized because the local police typically are allowed to retain a
percentage of proceeds from the property that is forfeited and sold, along with a percentage of any
cash that is seized. This so-called policing for profit, according to critics, provides an incentive for law
enforcement to pursue property rather than criminal convictions and to engage in tactics like “reverse
sting” operations in which undercover officers sell drugs to buyers whose property subsequently is
seized. On the other hand, these proceeds financially help support law enforcement in a time of
declining budgets, and they enable the local police to afford sophisticated technological equipment.
Any money seized from individuals involved in financial crimes also is returned to the victims.
A forfeiture proceeding may be criminal or civil. In a criminal forfeiture, an individual con-
victed of a narcotics offense forfeits property associated with the offense for which he or she has
been convicted. Criminal forfeiture is designed to further punish individuals guilty of a narcotics
offense by preventing them from “benefitting from their own wrong.” Keep in mind that crim-
inal guilt requires guilt beyond a reasonable doubt, although forfeiture is based on the lower
preponderance of the evidence standard. The same jury that determines guilt or innocence also
determines whether property should be forfeited. Property subject to forfeiture includes narcotics,
drug paraphernalia, money derived from drug transactions, and property purchased with the
proceeds of drug transactions. A court may order the seizure of “substitute property” or property
with a monetary value equal to the value of property that an individual has transferred or sold.
Civil forfeiture does not require a criminal charge or a criminal conviction, and it accounts
for roughly 80 percent of forfeiture proceedings. The Supreme Court has held that civil forfeiture
requires that the government provide an individual with notice of the property to be seized and
that the individual is to be provided with a hearing in which the government must establish by a
preponderance of the evidence that the property is linked to unlawful narcotics activity.68
In 2000, the U.S. Congress, concerned that individuals subjected to civil forfeiture lacked ade-
quate protections, passed the Civil Asset Forfeiture Reform Act.69 Although the act expands the
number of offenses subject to civil forfeiture, a number of provisions make it more difficult for
the government to seize property. The act, for example, establishes an “innocent owner defense”
for individuals who are able to establish that they did know that the property to be seized was
linked to unlawful activity or who took every effort to prevent the unlawful activity. For example,
an individual’s lack of knowledge that a home was purchased by his or her former spouse with
money from an unlawful narcotics transaction would constitute a defense in a civil forfeiture pro-
ceeding.70 Indigent defendants under the Reform Act are provided with legal representation, and
the government is liable for damages in those instances in which the government is unsuccessful
in forfeiting the property.
The U.S. Supreme Court held in United States v. Ursery that civil forfeitures do not constitute
punishment and therefore do not raise an issue of double jeopardy.71 The Court recently held that
the government may not seize funds unconnected with criminal activity that a defendant requires
in order to hire a lawyer.
The Supreme Court has upheld random drug testing as a method for detecting and for deterring
drug use among public employees and high school students.
Drug Testing
The U.S. Supreme Court has approved the drug testing of government employees whose ingestion of
narcotics may threaten the public safety and welfare. In 1989, in Skinner v. Railway Labor Executives’
Association, the Court upheld the constitutionality of an alcohol and drug testing program estab-
lished by the U.S. Federal Railroad Administration to prevent and to investigate accidents. The
Court explained that the testing, which was conducted without probable cause or warrant or rea-
sonable suspicion, was required in the interest of railroad safety.72 Skinner was decided on the same
day as National Treasury Employees Union v. Von Raab, which affirmed the constitutionality of a drug
testing program established by the U.S. Customs Service as a condition of employment for indi-
viduals staffing positions involving drug interdiction or enforcement and for positions in which
employees carry a firearm or handle “sensitive information.”73
The Supreme Court also approved random drug testing programs in high schools. In Vernonia
School District 47J v. Acton, the Court upheld the constitutionality of the random drug testing of
Read Board of athletes. The Court reasoned that athletes are subject to rules, regulations, and discipline and have
Education of less expectation of privacy than the average student and that there was a demonstrated need to test
Independent School the athletes because they were the “leaders” of the drug culture in the school. A positive result for
District No. 92 drugs led to suspension from athletic activities and did not result in a criminal arrest.74 In Board of
of Pottawatomie Education of Independent School District No. 92 of Pottawatomie County v. Earls, the Court extended
County v. Earls drug testing to students involved in all competitive extracurricular activities.75 The Supreme Court
and Safford Unified
School District v.
in Safford Unified School District v. Redding held that it was unconstitutional to “strip search” a stu-
Redding on the dent suspected of the unlawful possession of small amounts of a prescription drug.76
study site: study In most states, it is a crime to falsify a drug test. Texas Health and Safety Code Section 481.133
.sagepub.com/ provides that “falsifying a drug test,” or “possessing with intent to use any material for the falsifica-
lippmaness2e. tion of a drug test,” is punishable by up to 180 days imprisonment and a fine not to exceed $2,000.
You Decide 12.3 The South Carolina Supreme fetuses. Cornelia Whitner pled guilty to criminal child
Cour t in Whitner v. State was neglect. Her baby was born with cocaine metabolites
asked to decide whether the in its system because of Whitner’s ingestion of
word child in Children’s Code crack cocaine during the third trimester of her
Section 20-7-50 includes viable pregnancy. She pled guilty and later appealed to the
South Carolina Supreme Court. The relevant South helpless person, so that the life, health or
Carolina statute is reprinted below. comfort of such child or helpless person is
S.C. Code Ann. § 20-7-50 provides: endangered or is likely to be endangered, shall
be guilty of a misdemeanor and shall be pun-
Any person having the legal custody of any child ished within the discretion of the circuit court.
or helpless person, who shall, without lawful
excuse, refuse or neglect to provide . . . the Would you hold Whitner guilty of child neglect? See
proper care and attention for such child or Whitner v. State, 492 S.E.2d 777 (S.C. 1997).
Drug Courts
In 1989, the first drug court was established in Miami, Florida. Drug courts subsequently have
been established in all fifty states and in the District of Columbia. Over 2,600 drug courts are
operating in the United States and in U.S. territories. The theory behind drug courts is that
rather than sending nonviolent defendants charged with drug possession to prison, judges,
defense attorneys, prosecutors, and court professionals should work together to establish goals
and targets for defendants to achieve. Defendants’ progress through the program is closely mon-
itored and evaluated. Advocates of drug courts believe that treating an individual’s addiction
breaks the cycle of addicts who are imprisoned returning to crime to “feed their habit” once they
are released from prison.
There are two approaches to drug courts. Under the pretrial approach, a defendant who is
arrested for drug possession and who has not been convicted of a crime of violence in the past,
with the agreement of the prosecutor, may be diverted from the conventional criminal justice pro-
cess into the drug court program. Other courts adopt a postadjudication approach in which defen-
dants plead guilty and then are eligible to enter the drug court program.
The defendant, under both the pretrial and postadjudication approaches, signs a contract to
attend group meetings and counseling sessions, to submit to regular drug testing, to appear in
court for periodic status hearings to review his or her progress, and to agree to work with job
counselors in obtaining employment. Successful completion of the programs results in the drop-
ping of the charges against the defendant. A defendant’s failure to comply with the terms of the
contract, which typically involves a commitment for a year, may result in additional counseling,
treatment, or a brief period of incarceration. Serious or continuous violations of the terms of the
contract result in a reinstatement of the charges against the defendant, criminal prosecution, and
imprisonment.
An estimated 120,000 individuals participate in drug courts. Studies indicate that individuals
in the drug court program have lower recidivism rates than individuals who are imprisoned for
drug offenses and that drug court programs are less expensive than imprisonment.
Office of National Drug Control Policy

A cornerstone of the “War on Drugs” is the Office of National Drug Control Policy (ONDCP),
established by the Anti–Drug Abuse Act of 1988, 21 U.S.C. § 801. The ONDCP is part of the
Executive Office of the President of the United States. The ONDCP directs the efforts of the vari-
ous federal agencies concerned with narcotics, coordinates the state and national efforts to com-
bat drugs, and sponsors national antinarcotics media campaigns. The goals of the ONDCP are to
reduce illegal drug use and manufacturing, to combat domestic and international drug trafficking,
to counter drug-related crime and violence, and to address drug-related health consequences. The
ONDCP annually provides $10 billion in grants to domestic law enforcement, provides $9 billion
for treatment, and spends roughly $4 billion to assist drug interdiction efforts at the U.S. borders.
The current national drug strategy places renewed emphasis on drug treatment as an alter-
native to incarceration and advocates lower sentences for minor drug crimes. Emphasis has been
placed on combating prescription drug abuse among young people.77
The Drug Enforcement Administration (DEA), established in 1973 by President Richard

M. Nixon, is a “single unified command” that conducts and coordinates the national and inter-
national “War on Drugs.” The DEA today has five thousand special agents posted across the globe
with a budget of $3 billion. It is estimated that between 2005 and 2011, the DEA’s drug seizures,
destruction of drug processing facilities, and frustration of drug operations resulted in the loss of
$19.3 billion in revenue for drug cartels.
CASE ANALYSIS
In Boddie v. United States, a District of Columbia appellate court was asked to determine whether
the defendant was guilty of possession of unlawful narcotics within one thousand feet of a school
with the intent to distribute the drugs.
Was Boddie Guilty of Intent to Distribute Drugs Within a Drug-Free Zone?
Boddie v. United States, 865 A.2d 544 (D.C. App. 2005)
Officer Croson, who was assigned to the vice unit, expert in the distribution, sale, and use of narcotics in
“received a telephone call from a reliable source.” the District of Columbia. He stated that 24 of the bags
Officer Croson recognized the voice of an informant possessed by Mr. Boddie contained a 31 percent con-
with whom he had worked previously around thirty centration, and the other 21 bags a 23 percent concen-
times. The informant stated that a person “wearing a tration, with respect to the purity of the heroin. This
black leather jacket, blue jeans and a gray skull cap” compared with the average street concentration of
“was holding and selling heroin in the park in the “between 15 and 20 percent” purity. The typical user
300 block of K Street, in the Southeast quadrant of the would have only one to three bags on his or her per-
District of Columbia.” The informant “had observed son at a time. . . . Sgt. Brennan explained that a dealer
the [person] selling the narcotics.” About ten minutes might give a person bags of heroin to sell in exchange
after he received the call from the informant, Officer for part of the proceeds from the sales; or that a person
Croson and two other Metropolitan Police Department might take the bags, sell most of them and keep one
(MPD) officers arrived at the K Street location. or two bags for personal use. He posed the question:
Upon his arrival . . . Officer Croson saw “eight to “Would a user have 45 bags for personal use[?]” And,
ten subjects standing in the courtyard,” one of whom he answered his own question: “[N]o. Never in my 31
“match[ed] the description” given by the telephone years on the police force have I ever seen that.”
informant. . . . Officer Croson followed Mr. Boddie Section 33-547.1 specifically prohibits “possessing”
into an alley, got out of his vehicle, and “stopped” with intent to distribute narcotics in a drug free
him. The area in which Mr. Boddie was stopped is “a zone . . . , whether or not the heroin market itself is in
high drug area where [people] sell narcotics. . . .” A a drug free zone[ ].” . . . [I]t is clear that this provision
park in that area was known as “an open-air heroin requires that the actus reus must occur within 1,000
market.” Officer Croson asked whether Mr. Boddie feet of a school. . . . Since the actus reus for this offense
“had anything on him.” Mr. Boddie said “he had a is possession, it follows that possession of the drugs,
stem on him.” He also admitted that he had “a couple not the intended location for distribution, must be
of bags on [him].” When the officer could not find any located within 1,000 of a school.
drugs in Mr. Boddie’s pockets, he inquired whether If we require proof of intent to distribute only
Mr. Boddie had “anything in [his] pants.” Mr. Boddie within the school zone . . . the statute would exclude
removed “a . . . plastic bag from his crotch area” and many cases where the presence of drugs, in fact,
handed it to the officer. The bag contained 45 “green increased the risk of harm to students. In view of the
zip-lock[ ] bags with a white powder substance that danger that the mere presence of drugs near a school
field-tested positive for heroin.” Mr. Boddie claimed presents, the district courts’ interpretation would pro-
that he was not selling heroin but used the drug. Mr. vide an escape-hatch for a defendant when, as here,
Boddie was placed under arrest. the government is unable to establish precisely where
Sergeant John Brennan, a thirty-one-year veteran the drugs were meant to be distributed, thereby defeat-
of the Metropolitan Police Department, testified as an ing the intent of Congress. In many such cases, school
zone distribution may even be intended but proving zone, or within 1,000 feet of a school, with the intent
this may be difficult. Certainly, the mere existence of to distribute it somewhere, not necessarily within the
a large quantity of drugs in an area increases the pos- drug-free zone. Since the government’s evidence here
sibility of gang warfare and gunfire and other drug- established beyond a reasonable doubt that Mr. Boddie
related violence in that vicinity. possessed the 45 bags of heroin within the drug-free
We hold that the government need only prove zone, or within 1,000 feet of the Van Ness Elementary
beyond a reasonable doubt that the defendant pos- School, with the intent to distribute them, the place
sessed a controlled substance within the drug-free where the police initially observed him is irrelevant.
CHAPTER SUMMARY
In this chapter, we have reviewed the essentials of three The common law did not address the manu-
crimes against social order and morality: alcoholism, facture, use, sale, or possession of drugs. In 1970,
gambling, and drug offenses. Society has mixed views Congress enacted the Comprehensive Drug Abuse
toward each of these offenses. States sponsor lotteries Prevention and Control Act, commonly known as
at the same time that they criminalize gambling. the Controlled Substances Act. The act categorizes
Juveniles are criminally prohibited from possess- drugs within one of five schedules. The drugs consid-
ing alcohol, and it is a crime to sell, furnish, or give ered to have the greatest adverse impact on the mind
alcohol to a juvenile. Individuals who are intoxicated and body and the potential for addiction are listed
in public are liable for the crime of public intoxication. in Schedule I, and the least dangerous drugs are listed
An individual also is prohibited from driving an in Schedule III, Schedule IV, and Schedule V (see
automobile while intoxicated. In the 1970s, driving Table 12.1).
while intoxicated was expanded to punish driving State drug laws generally are based on the provi-
under the influence of liquor or narcotics. Individuals sions of the Uniform Controlled Substances Act, which
may challenge these charges on the grounds that despite was formulated in 1972 by the National Conference
their inebriated state, their judgment and driving were of Commissioners on Uniform State Laws, a group of
not affected. States subsequently modified their statutes experts who drafted a set of “model laws” intended
to prohibit “driving with an unlawful blood alcohol to guide state legislatures in addressing public policy
level.” Every state has gradually lowered the required issues. The Uniform Controlled Substances Act adopts
blood alcohol level from 0.10 percent in the 1960s to a framework that is similar to the federal Drug Abuse
0.08 percent in the 1990s. States often impose harsher Prevention and Control Act.
punishment on individuals with a higher blood alcohol The emphasis of the legal component of the “War
level, typically between 0.15 and 0.20 percent. on Drugs” is on (1) the prosecution of the possession
State gambling laws distinguish between gam- of narcotics and possession with intent to deliver nar-
bling and lawful gaming. Gambling is defined as plac- cotics; (2) the prosecution of the manufacture, posses-
ing money on an activity in which luck predominates sion, and sale of drug paraphernalia; and (3) civil and
over skill in determining the outcome. Statutes typi- criminal assets forfeiture. There is a movement toward
cally exempt charitable activities and social gambling diverting first-time offenders into drug courts rather
from the reach of their statutory law. Federal law regu- than subjecting them to formal criminal prosecution
lates interstate gambling and Internet gambling across and imprisonment. There continues to be a debate
state lines. over the appropriate approach to marijuana.
1. Are juveniles treated differently than adults in 2. Under what circumstances may a police officer
terms of alcohol? arrest an individual for public intoxication?
3. What type of evidence is relied on to convict an 9. How has the approach to the criminal regulation
individual of operating a motor vehicle while of marijuana changed over time?
intoxicated?
10. Outline the law on drug paraphernalia. Should
4. How is gambling defined under state statutes? Are the possession of drug paraphernalia be a crime?
certain types of gambling exempt from punish-
11. What is the purpose of assets forfeiture?
ment under state statutes?
Distinguish between criminal and civil assets
5. What is the significance of the schedules of forfeiture.
controlled substances under the Controlled
12. How do drug courts differ from regular criminal
Substances Act?
courts?
6. List the types of acts involving controlled sub-
13. What is the role of the Office of National Drug
stances that are punished under state statutes.
Control Policy and the Drug Enforcement
7. How does the crime of drug possession differ from Administration in the “War on Drugs”?
the crime of possession with the intent to distrib-
ute narcotics?
8. Why is there disagreement over whether there
should be mandatory minimum sentences for
drug crime?
LEGAL TERMINOLOGY
assets forfeiture Drug Enforcement Administration medical marijuana

(DEA)
controlled substances Office of National Drug Control
drug paraphernalia Policy (ONDCP)
decriminalization of marijuana
gambling possession with intent to
driving under the influence (DUI)
distribute
gaming
driving while intoxicated (DWI)
public intoxication
implied consent laws
driving with an unlawful blood
zero tolerance laws
alcohol level (DUBAL) mandatory minimum drug
sentences
drug courts

OFFENSES AGAINST PUBLIC
13 ADMINISTR ATION AND THE
ADMINISTR ATION OF
JUSTICE
Was the appellant in Learning Objectives

contempt of court?
1. Know the three categories of crimes of official
On July 14, 2006, Appellant attended her son’s deten- misconduct and the reason why it is important
tion hearing in juvenile court. Based on the nature of the
to punish the corrupt conduct of public officials.
charges, the trial court ordered Appellant’s son to be held
in secure detention pending his arraignment and trial. The 2. Understand the elements of the crime of bribing
trial court also provisionally appointed the Public Defender a public official.
to represent Appellant’s son. Appellant became angry
because she had hoped her son would be released into 3. Appreciate the requirements for proving extor-
her custody and she wanted to hire a private attorney. tion and the differences between bribery and
After Appellant left the courtroom and the trial court began extortion.
another juvenile hearing, the Assistant State Attorney
asked to approach the bench on Appellant’s son’s case. 4. Understand the elements of perjury and some of
He informed the judge that Appellant called the judge a the rules of evidence involved in proving perjury.
“stupid b___” as she walked past counsel table and out 5. Know acts constituting obstruction of justice.
of the courtroom. . . . Two other witnesses . . . also heard
Appellant’s remark. After giving Appellant an opportunity 6. Understand the circumstances in which an indi-
to show cause why she should not be held in contempt vidual is entitled to resist an arrest.
and to present any mitigating circumstances, the trial
7. Appreciate the elements of compounding a
court found her in direct criminal contempt. (Woodie v.
Campbell, 960 So.2d 877 [Fla. Dist. Ct. 2007]) crime, and why this is a criminal offense.
8. Understand the intent and act requirements of
In this chapter, learn about criminal contempt.
the crime of escape.
9. Know the difference between civil and criminal
contempt, between direct and indirect criminal
contempt, and between judicial and legislative
contempt. Understand the intent and act require-
ments for criminal contempt.
INTRODUCTION
Common law judges developed several crimes to were incorporated into federal and state statutes in the
ensure that the political and legal system were free United States. In this chapter, we look at these offenses
of corruption and fraud. These offenses subsequently against public administration and the administration
323
of justice. Each of these offenses, whether committed by a private citizen or by a government offi-
cial, is intended to ensure that the rule of law is followed:
Bribery
Extortion
Perjury
Subornation of perjury
Obstruction of justice
Resisting arrest
Compounding a crime
Escape
Contempt
OFFICIAL MISCONDUCT
Public officials are charged with upholding the law and with setting an example to be followed
by society. The common law punished official misconduct in office by imprisonment or a fine
and in some cases by removal from office and disqualification to hold office in the future. Official
misconduct in office is defined as corrupt behavior by a government officer in the exercise of the
duties of his or her official responsibilities. There are three broad categories of official misconduct:
1. Malfeasance. A wrongful act such as a police officer’s abuse of a defendant to extract a con-
fession, or a police officer’s destruction of evidence.
2. Misfeasance. A lawful act undertaken in an unlawful manner. An example is a public official
awarding a contract to a company in return for a bribe or a kickback.
3. Nonfeasance. The failure to fulfill a duty to act. For example, a mine inspector fails to report
a company’s violation of worker health and safety laws, or a health inspector fails to report
unsanitary conditions in a restaurant.
These three types of acts are punished under various state and federal statutes. An individual
charged with official misconduct must act “under the color of office” and with a “corrupt intent.”
•• Color of Office. The defendant must be acting in execution of the responsibilities of his or her
official position. A prison official who physically abuses an inmate is acting in a criminal
fashion as part of his or her responsibilities. A prison officer who gets in a bar fight after
work is not acting “under color of law.”
•• Corrupt Intent. The defendant must act with the purposeful intent to deliberately violate his
or her legal obligation.
Bribery, which is discussed in the next section, is one of the most damaging crimes against
public administration and the administration of justice.
BRIBERY
In 2007, the Corporate Crime Reporter released a report on public corruption in the United States.
The report found that an average of one thousand state public officials a year had been con-
victed for corruption over the twenty years included in the report. At the time of the report, three
Connecticut mayors and the state treasurer had been sentenced to prison, and the governor’s
former deputy chief of staff had pled guilty to accepting gold coins in return for government
contracts. Governor John Rowland admitted that firms with state contracts had provided him
with a hot tub and cathedral ceilings in his home. As a result of this type of rampant corruption,
CHAPTER 13 Offenses Against Public Administration and the Administration of Justice 325
Connecticut, one of the cradles of American democracy, has been called one of the most corrupt
states in the nation. Connecticut, however, is relatively “clean” compared to jurisdictions with
the most criminal convictions per capita of state officials for corruption between 1976 and 2006:
the District of Columbia, Louisiana, Mississippi, Kentucky, Alabama, Ohio, Illinois, Pennsylvania,
Florida, New Jersey, and New York. In each of these jurisdictions, a number of public officials
have been convicted of betraying the public trust by accepting or demanding money, campaign
contributions, and other benefits in return for jobs, construction contracts, driver’s licenses, and
favorable judicial verdicts. The least corrupt states are Utah, Kansas, Minnesota, Iowa, and Oregon.
Federal officials are not immune from corruption. In 2010 alone, the Public Integrity Section of
the U.S. Department of Justice reports that 422 federal officials were charged with crimes: 397 had
been convicted, and 103 were awaiting trial. California congressman Randy “Duke” Cunningham,
for example, was convicted of taking $2.4 million in bribes from defense contractors in return
for assisting them to obtain contracts. Tom DeLay, Speaker of the House of Representatives, was
forced to resign in 2006 after being indicted in Texas for money laundering; in 2010, he was con-
victed and sentenced to three years in prison and ten years’ probation. DeLay’s conviction was
overturned on appeal. Members of DeLay’s congressional staff also were implicated in the corrupt
activities of lobbyist Jack A. Abramoff. In 2009, Louisiana congressman William Jefferson was con-
victed of bribery and sentenced to prison for taking over $400,000 from businesses in return for
legislative favors.
The framers of the U.S. Constitution viewed public corruption as a significant problem. They
were concerned that federal officials might be influenced by money or gifts to act in a way that did
not serve the public interest. This would undermine respect for the government and breed public
distrust. Article II, Section 4 provides that the president, vice president, and other federal officials
may be removed from office for “Bribery” and for other “High Crimes and Misdemeanors.” Other
articles prohibit officeholders from accepting gifts or titles from foreign governments, bar mem-
bers of Congress from taking a federal job after they voted to increase the compensation for the
position, and prohibit the expenditure of federal funds without congressional authorization.1
The most widespread and frequently prosecuted state and federal official misconduct crime is
the bribery of a public official. Why punish public bribery?
•• Public Interest. Government officials are charged with acting in the interest of society rather
than acting in the interest of individuals who offer a financial or other material benefit.
•• Public Confidence. Corrupt behavior undermines confidence and trust in government.
•• Equality. Corruption leads to dominance by the rich and powerful, and is contrary to the
notion that every individual and interest group should have an equal voice in government.
Government should be responsive to the majority of Americans rather than to the minority
of millionaires.
•• Public Service. Individuals should not use government employment to advance their own
self-interest.
The common law crime of bribery originally was limited to offering money or an item of
value to a judge in return for the judge’s taking an official action such as acquitting a defendant
of a criminal charge. Criminal liability was limited to the judge and gradually was extended to
the individual offering the bribe. A second development was the expansion of bribery beyond
judges to cover all public officials. The common law of bribery subsequently was transported to
the United States.
Bribery today is committed by an individual who gives, offers, or promises a benefit to a public
official as well as by a public official who demands, agrees to accept, or accepts a bribe. In other
words, bribery involves two separate crimes—that is, it punishes giving as well as receiving a bribe,
and requires an intent to influence or to be influenced in the carrying out of a public duty. Bribery
does not require a mutual agreement between the individuals. If you offer money to a police officer
with the intent that he or she not issue you a traffic ticket, you are guilty of the bribery of a public
official, regardless of whether the officer agrees to accept the bribe.
The offense of offering a bribe to a public official requires that
•• the accused wrongfully promised, offered, or gave money or an item of value to a public
official;
•• the public official occupied an official position or possessed official duties; and
•• the money or item of value was promised, offered, or given with the intent to influence an
official decision or action of the individual.
The offense of soliciting a bribe requires that
•• the accused wrongfully asked, accepted, or received money or an item of value from a person
or organization;
•• the accused occupied an official position or exercised official duties; and
•• the accused asked, accepted, or received money or an item of value with the intent to have
his or her decision or action influenced with respect to this matter.
In Page v. State, Ernest Page, a member of the Orlando, Florida, city commission, was convicted
for soliciting a bribe after Page blocked the proposal for a low-income housing project after the
developer refused Page’s demand that his firm be included as a partner in the development.2
The federal bribery statute punishes the offering of a bribe and separately punishes the taking
of a bribe. Section 18 U.S.C. § 201(c)(1)(A) declares that it is a crime if an individual “directly or
indirectly gives, offers, or promises anything of value to any public official, former public official,
or person selected to be a public official, for or because of any official act performed or to be per-
formed [or failure to act].” The bribery statute also punishes a public official who “directly or indi-
rectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally
for or because of any official act performed or to be performed [or failure to act].”3
State bribery statutes generally follow the text of the federal statute. The Illinois statute pro-
vides that bribery involves the offer or promise of “property or personal advantage” to a “pub-
lic officer” with the “intent to influence the performance of any act related to the employment
or function of any public officer, . . . juror or witness.” It also is a crime for a public official to
“receive, keep or agree to accept” any “property or personal advantage . . . knowing that [it] was
promised or tendered with the intent to cause him or her to influence . . . any act related to [his or
her] employment or function” as a public officer.4
There are several points to keep in mind in the law of bribery5:
Public official. A public official is an individual who “occupies a position of public trust” with offi-
cial federal or state responsibilities. An individual is not required to occupy a political office, but
he or she may be performing a governmental function such as a juror, voter, adviser to a legislator,
or president or member of a study commission.6
Benefit. Bribery involves a “benefit” or “thing of value.” This is a subjective test; the question
is whether the recipient views the inducement to be of “value.” The Model Penal Code (MPC)
states that a benefit means “gain or advantage, or anything regarded by the beneficiary as gain or
advantage, including benefit to any other person.”7
Official act. A bribe is required to be intended to influence an official act. An official act may involve
an affirmative act such as a mayor awarding a business contract to a company to remove snow or
a police officer’s tearing up of a traffic ticket. An official act also may involve a failure to act, such
as a mayor’s decision not to open up the snow removal contract for competitive bidding by local
businesses or a police officer’s decision not to issue a ticket. In 2016, the U.S. Supreme Court over-
turned the conviction of Virginia governor Robert McDonnell and held that the normal services
provided to a constituent, such as arranging for a meeting with a government official or making a
phone call to gather information, do not constitute official policy action under the bribery statute.
Is it bribery to offer a benefit to a public official to perform an act that is “impossible” for the
public official to perform? Is it bribery to pay a recently hired assistant prosecutor to drop the
charges against a defendant under the mistaken belief that the assistant prosecutor has the author-
ity to drop the charges? The MPC states that “it is no defense to a prosecution for bribery that a
person whom the actor sought to influence was not qualified to act as desired ‘whether because he
had not yet assumed office, or lacked jurisdiction, or for any other reason.’”8 The Florida bribery
statute follows the MPC and provides that the prosecution is not required to prove that the public
servant “was qualified to act in the desired way, or that he had assumed office, or . . . that he pos-
sessed jurisdiction over the matter, or that his official action was necessary to achieve the person’s
purposes.”9 The thinking behind this rule is that the essence of the crime of bribery is the intent to
corrupt the government. In other words, in Florida, you can bribe a police officer with the intent
that criminal charges are not brought by a prosecutor against you, although the police officer has
no authority or power to affect a prosecutor’s decision. There are a handful of states that take the
opposite approach and recognize the impossibility defense to bribery.10
In State v. Stanley, Charles Stanley offered $500 to McCraw, a police officer, in return for
McCraw’s giving Stanley the arrest warrant for Raymond Patrick Weaver and Weaver’s Breathalyzer
report.11 Stanley knew that without these documents, Weaver could not be successfully prosecuted.
Half of the money was to be paid following the dismissal of the charges against Weaver. The war-
rant and Breathalyzer report already had been filed with the clerk of the court, and Weaver was in
jail at the time that Stanley approached McCraw. Stanley claimed that the “custody and possession
of the warrant and [B]reathalyzer report” were “beyond the control of Officer McCraw” and that
he therefore could not be held liable for offering a bribe to “influence McCraw in the performance
of an act or duty within the scope of his authority.” The North Carolina Court of Appeals held that
Stanley had attempted to influence McCraw’s performance of his official responsibilities and was
properly convicted of bribery. “The evidence in the case at hand tended to show that defendant
attempted to induce McCraw to abandon his duty to aid in the prosecution of Weaver’s case. . . . It
is also the duty of a police officer to aid in the preservation of evidence against a defendant that
he has arrested. The offer of money in return for the [B]reathalyzer report in this case was a clear
attempt to deprive the court of essential evidence and, hence, was an offer to persuade McCraw
to violate his duty to aid in preserving evidence.” In other words, Stanley’s intent to influence
McCraw and the offer of a bribe were sufficient to convict Stanley despite the fact that McCraw
had no access to the arrest warrant and Breathalyzer.
It also is not a requirement of the crime of bribery that the individual who is bribed is capable
of accomplishing the desired result by himself or herself. A single member of the city council may
not be able to control the votes of other members of the city council on whether to hire a firm to
clean city buildings. It nonetheless still is bribery to pay money to influence the vote of a single
member of the city council. The thinking is that individuals have the intent to skew the result of
the city council voting in their favor, and the single member of the city council who is bribed may
influence the votes of his or her colleagues.
Intent. The crime of bribery is complete the moment the bribe is offered with the required corrupt
intent. You may be convicted of bribery although the public official did not accept the bribe,
accepted the bribe and lacked intent to carry out the action, or possessed the required intent and
failed to act. It also is no defense to bribery that the public official believed that the act was in the
public interest and that he or she would have acted in the desired fashion without the bribe. Why?
Bribery corrupts the government by promoting the self-interest of the individual offering the bribe
rather than the public interest. A public official is guilty of bribery when he or she demands a bribe
with the required intent, although you may have no intent to pay the bribe.
Bribery is a felony in the majority of states. Illinois punishes bribery as a felony punishable by
two to three years with a maximum fine of $25,000, and Washington punishes public bribery with
ten years in prison and a fine of $20,000.12 Several states declare that it is a crime to fail to inform
authorities about the offer of a bribe.
You may be asking yourself whether it is bribery to offer a campaign contribution to a law-
maker in return for his or her support or opposition to gun control. The general answer is that this
is not bribery because a campaign contribution is legal and is paid to advance the public interest
rather than the individual’s interest. Is this a satisfactory response?
Keep in mind that bribery is a separate crime from receiving an unlawful gratuity, which also
is punished under the federal bribery statute. Bribery is payment with the intent to influence the
public official to take a specific action. A gratuity is an unlawful payment made to reward a public
official for action taken or that will be taken in the future. The gratuity is required to be a reward
for a specific official act or acts, and money paid to create goodwill is not an unlawful gratuity.
In United States v. Sun Diamond Growers, the Supreme Court overturned a conviction of a lobbying
group for gifts to Secretary of Agriculture Michael Espy on the grounds that there was no showing
that tickets to a tennis tournament and other benefits were connected to any of Espy’s specific
decisions.13
In 2013, nine sitting and former Philadelphia traffic court judges were accused of dismissing
or reducing the severity of traffic charges in exchange for campaign contributions, car repairs, and
gourmet food. Several of the judges have been sentenced to prison, and the corruption was so
pervasive that the only solution was to abolish the traffic court..
Before we leave bribery, you should be aware of two types of nonpublic bribery that are pun-
ished under the federal criminal law—commercial bribery and sports bribery.

In January 2016, Oklahoma police officer Daniel then ordered her into his squad car and forced her to
Holtzclaw was convicted on eighteen of thirty-six perform oral sex. It was this victim’s complaint to the
counts, including four counts of first-degree rape and police that led to the discovery of Holtzclaw’s pattern
four counts of forced oral sodomy, and was sentenced of sexual abuse of women.
to 263 years in prison. Holtzclaw, the son of a white police officer and a
Thirteen witnesses ranging in age from seventeen Japanese mother, was convicted by an all-white jury
to fifty-seven testified against Holtzclaw and described whose recommendation for a 263-year sentence was
a pattern over the course of seven months in which he followed by the judge. A number of Holtzclaw’s victims
stopped African American women in one of Oklahoma have filed a civil suit.
City’s poorest neighborhoods and upon discovering Holtzclaw was a former football player at Eastern
that they possessed criminal histories subjected them Michigan University who first began sexually harass-
to sexual assaults ranging from groping to oral sod- ing individuals whom he stopped in December 2013.
omy and rape. Holtzclaw apparently singled out these He was fired from the Oklahoma City police in January
women because he believed they would conclude that 2015 following an internal investigation. Oklahoma City
no one would believe their claim of sexual abuse and police chief Bill Citty wrote in Holtzclaw’s termination
for that reason they would be reluctant to file a com- letter that his “offenses committed against women in
plaint against him. our community constitute the greatest abuse of police
One victim asked, “Who are they going to authority I have witnessed in my 37 years as a member
believe?” . . . “It’s my word against his . . . , he’s a of this agency.”
police officer. So I just left it alone and just prayed that I Sexual offenses are the third highest cause of termi-
never saw this man again, run into him again, you know.” nation of police officers behind unnecessary violence and
Another woman stated, “I didn’t think nobody was going financial crimes. The Associated Press obtained records
to believe me anyway. And I’m a drug addict, so the only from forty-one states and found that between 2009 and
way I knew to handle it was to go and get high to try to 2014 1,000 police officers were disciplined by decertifi-
block it out, to make it seem like it didn’t happen.” cation for sexually related activity. Decertification is an
A twenty-four-year-old woman testified that she administrative process in which an officer’s law enforce-
was intoxicated when arrested by Holtzclaw and was ment license is revoked. Roughly 550 officers were
handcuffed to a hospital bed to detox when he violated decertified for sexual assault, including rape and sodomy,
her. He allegedly continued to pursue her following her sexual shakedowns in which citizens were extorted into
arrest and stalked her on social media. performing sexual favors to avoid arrest, or gratuitous
A fifty-seven-year-old grandmother of twelve who pat-downs, and roughly 440 officers lost their badges
neither was poor nor had a criminal record recounted for other sexual offenses, such as possessing child
that Holtzclaw pulled her over on a false charge of pornography and indecent exposure, sexting, or being a
“swerving.” He directed her to pull her pants down “peeping Tom.” Was Holtzclaw a “bad apple,” or was his
to her knees and shined a light on her privates. He behavior part of a larger pattern of behavior by the police?
COMMERCIAL BRIBERY
MPC Section 224.8 set forth the crime of commercial bribery, which has been incorporated
into the criminal codes of a number of states. The theory behind commercial bribery is that an
employee who accepts “money or anything of value” from a person other than his or her employer
and uses his or her position to benefit the outside individual has betrayed the trust of his or her
employer. California Penal Code Section 641.3(d)(3) requires that an employee solicit, accept, or
agree to accept a benefit from an individual other than his or her employer and, in return, agree to
work for the benefit of the outside individual. The benefit must have a value of more than $100,
and the transaction must occur without the knowledge or consent of the employer. The jail term
ranges from one year to as long as three years, depending on the amount of the bribe.
New Jersey law has a provision modeled on the MPC that punishes an “expert” who presents
him- or herself as engaged in disinterested analysis who solicits, accepts, or agrees to accept “any
benefit” to influence his or her decision.14 This would punish disc jockeys in the 1950s “payola
scandal” who accepted bribes to play the records produced by various record companies rather
than play the most popular or deserving songs. Commercial bribery may be punished under the
federal Travel Act when individuals travel in interstate commerce or use the mail or electronic
communication to engage in commercial bribery.15
SPORTS BRIBERY
Several states have laws that specifically criminalize the offering of a bribe to influence a sporting
event and additional laws punishing participants and referees who accept such bribes.
The New York sports bribery law reads as follows16:
A person is guilty of sports bribing when he:
1. Confers, or offers or agrees to confer, any benefit upon a sports participant with intent to
influence him not to give his best efforts in a sports contest; or
2. Confers, or offers or agrees to confer, any benefit upon a sports official with intent to influ-
ence him to perform his duties improperly.
A person is guilty of sports bribe receiving when:
1. Being a sports participant, he solicits, accepts or agrees to accept any benefit from another
person upon an agreement or understanding that he will thereby be influenced not to give
his best efforts in a sports contest; or
2. Being a sports official, he solicits, accepts or agrees to accept any benefit from another per-
son upon an agreement or understanding that he will perform his duties improperly.
Sports bribery also is punished under federal law in 18 U.S.C. § 224. This section reads as
follows:
(a) Whoever carries into effect, attempts to carry into effect, or conspires with any other
person to carry into effect any scheme in commerce to influence, in any way, by bribery
any sporting contest, with knowledge that the purpose of such scheme is to influence by
bribery that contest, shall be fined under this title, or imprisoned not more than 5 years,
or both.
In 1995, two Arizona State basketball players along with various organized crime figures were
arrested and convicted of involvement in a conspiracy to influence the outcome of games. In
August 2012, three individuals pled guilty in federal court to paying bribes to a leading scorer on
the University of San Diego basketball team to manipulate the score of the game. The individuals,
after paying the bribe, would place bets on the outcome of the games or on the “point spread”
between the two competing teams.
FOREIGN CORRUPT PRACTICES ACT

The Foreign Corrupt Practices Act addresses the bribery of foreign officials. The law declares
that it is illegal for an individual or U.S. company to bribe a foreign official in order to cause that
official to assist in obtaining or retaining business. The statute makes an exception for “facilitat-
ing payments” to speed or ensure the performance of a “routine governmental action,” such as
paying money to a foreign official to guarantee that an entry visa is quickly issued to a corporate
employee. Between 1998 and 2010, 101 individuals and sixty-eight corporations were convicted of
violating the Foreign Corrupt Practices Act. U.S. corporate officials, with some justification, claim
that they are at a disadvantage in competing abroad against foreign corporations whose countries
do not prohibit bribery of foreign officials.17 Extortion as previously discussed may be directed at
either a public official or a private citizen.
You Decide 13.1 Saad attempted to deliver reasoning that the police were legally obligated to return
$1,000 each to two police officers the money on the grounds that the “seizure had been
to obtain the return of $20,700 unlawful” and that, as a result, Saad was entitled to
seized from him when he was return of the money. Was the trial court judge correct in
arrested. A trial judge dismissed dismissing the bribery charge? See State v. Saad, 429
the bribery charges against Saad, So.2d 757 (Fla. App. 1983).
EXTORTION
The common law misdemeanor of extortion punished the unlawful collection of money by a
government official. William Blackstone defined extortion as “an abuse of public justice, which
consists in any officer’s unlawful taking, by color of his office, from any man, any money or thing
of value that is not due to him, or more than is due, or before it is due.” The law of extortion was
gradually expanded to punish the taking of property by a threat from a private individual as well
as threat from public officials.
The federal extortion statute provides that “[w]hoever, being an officer, or employee of the
United States or any department or agency thereof, or representing himself to be or assuming
to act as such, under color or pretense of office or employment commits or attempts an act of
extortion, shall be fined under this title or imprisoned not more than three years, or both; but if
the amount so extorted or demanded does not exceed $1,000, he shall be fined under this title
or imprisoned not more than one year, or both.”18 The federal blackmail statute focuses on a
demand of money or other “valuable thing” in return for not reporting a violation of federal law.
“Whoever, under a threat of informing, or as a consideration of not informing, against any viola-
tion of any law of the United States, demands or receives any money or other valuable thing” is
punishable by imprisonment for more than one year and by a fine.19 It also is unlawful to use the
U.S. mail to demand a ransom.20
Extortion involving a public official may be contrasted with bribery involving a public official.
Extortion involves a public official taking money, property, or anything of value from another
through the threat of future violence or harm. In bribery, money or a valuable benefit is offered or
provided to a public official in return for an official’s action or inaction.
The next crime discussed, perjury, is intended to ensure that individuals’ statements and testi-
mony in the legal process or before other government institutions are honest and truthful.
PERJURY
The common law crime of perjury was developed to ensure that judicial proceedings are based
on truthful testimony. Perjury punished a false oath in a judicial proceeding. False testimony was
punished initially with death, and later with banishment or cutting out the tongue and with the
forfeiture of property. By the eighteenth century, perjury was punished by imprisonment and with
a fine and disqualification from testifying in future trials. The companion crime of “false swearing”
was developed to punish false statements on documents; it subsequently was merged into the
crime of perjury.21
The federal perjury statute, 18 U.S.C. § 1621, requires that the following elements must be
established beyond a reasonable doubt in a perjury prosecution:
•• Oath. The defendant testified under oath in a proceeding in which federal law requires that
the testimony is under oath.
•• Administration of Oath. The oath was administered by an individual legally qualified to
administer the oath.
•• Proceedings. The statement is made before courts, before grand juries, or in any other proceed-
ing in which an oath is legally required, including congressional and agency proceedings.
•• False Statement. The defendant made a false statement.
•• Material. The statement was material to the case.
•• Intent. The defendant acted with knowledge that the statement was untrue.
The perjury statute applies to statements under oath in legal proceedings and hearings before
administrative agencies (e.g., immigration), as well as sworn statements on documents, such as a
tax return. In 1989, the U.S. Congress passed a “false statement” law that applies to court proceed-
ings and to grand juries that is intended to make it easier to establish perjury.22 Section 1001 is the
primary statute relied on to punish false statements to government agencies, including the FBI,
whether given under oath or given without an oath:
Except as otherwise provided in this section, whoever in any matter within the jurisdic-
tion of the executive, legislative, or judicial branch of the government of the United States,
knowingly, and willfully
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation;
(3) makes or uses any false writing or document knowing the same to contain any mate-
rially false, fictitious, or fraudulent statement or entry shall be fined under this title,
imprisoned not more than 5 years or, if the offense involves international or domestic
terrorism, . . . imprisoned not more than 8 years, or both. . . .
In this chapter, we primarily will be concerned with the perjury statute. State statutes punish per-
jury before state judicial and agency hearings and in sworn statements on documents. The California
perjury law provides that a person is guilty of perjury who has taken an oath to testify truthfully
before any “competent tribunal, officer, or person” and who “willfully states as true any material
matter which he or she knows to be false.”23 New York divides perjury into degrees and treats perjury
in a legal proceeding more seriously than perjury on a written instrument, such as a tax return.24
There are several additional points that are important in understanding the crime of perjury.
The prosecution must establish that the defendant took an oath to swear to tell the truth
and intentionally or knowingly made a statement that is false. What of individuals who object
to swearing an oath? The federal government and states allow individuals to make an “unsworn
declaration” that a statement is true and accurate. The individual who makes an unsworn oath still
may be prosecuted for perjury.
The next step for a prosecutor bringing a perjury charge is to establish beyond a reasonable
doubt that the defendant’s statement was false. A false response to a clear and understandable
question constitutes perjury. What about an answer that avoids directly answering the question?
The burden is on the lawyer to ask clear questions using understandable language and to follow up
to clarify unclear or evasive answers.
In Bronston v. United States, Bronston was questioned under oath and asked “[d]o you have
bank accounts in Swiss banks?” Bronston responded, “No sir.” He then was asked “[h]ave you
ever?” He responded under oath that his company “had an account there for about six months.”
Bronston later was indicted for perjury based on the fact that although he mentioned that the
company had Swiss bank accounts, he failed to mention that in the past he also had Swiss bank
accounts. The government claimed that Bronston’s testimony, although “true,” was intentionally
“misleading” and “unresponsive” and was intended to give the impression that Bronston never
had a personal Swiss bank account.25
The U.S. Supreme Court reversed Bronston’s conviction and held that under the stress and
strain of cross-examination, a witness may give answers that are not entirely clear and responsive.
Congress did not intend to hold Bronston liable for perjury when the questioner could have asked
him specifically whether he “ever had any personal Swiss bank accounts” and therefore clarify
Bronston’s response. A “no” answer to this follow-up question would have constituted perjury. The
Supreme Court held that it is the responsibility of the questioner to “pin the witness down . . . it
is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark,
to flush out the whole truth with the tools of adversary examination.” Do you agree with the
Supreme Court’s decision in Bronston?
Tammy Thomas, a former professional cyclist, was prosecuted for several counts of perjury
during a grand jury investigation into the distribution of anabolic steroids and money laundering.
Thomas answered “No” to the question, “Did you take anything that Patrick Arnold gave you?”
Thomas contended her answer was literally true because she had bargained for and purchased
steroids and the steroids were not “given” to her. The court held that both the prosecutor and Thomas
reasonably understood that the term gave was being used as synonymous with sell and buy.26
What is the required intent for perjury? A false statement must be made with knowledge of
its falsity. Some statutes also provide that the statement must be made with an intent to deceive.
In practice, a defendant who knows that a statement is untrue likely made the statement with the
intent to mislead.
A perjured statement is required to be “material” to the proceedings. The prosecution must
demonstrate beyond a reasonable doubt that the statement was “capable of influencing the tribu-
nal on the issue before it,” or that the statement “has a natural tendency to influence, impede or
dissuade [a grand jury] from pursuing its investigation.” In other words, an immaterial statement is
a statement that is not important to reaching a verdict. This is a broad standard, and courts rarely
find that testimony is “immaterial.”27
Several interesting aspects to proving perjury are discussed below.
Two-witness rule. The MPC adopts the common law two-witness rule, which also is followed by
federal courts and most state courts in perjury prosecutions. The rule provides that a conviction for
perjury is required to be based on the testimony of two witnesses or must be based on the testimony
of one witness and supporting (corroborating) evidence such as a confession or a document. The rea-
son for this rule is that courts want to avoid a “swearing contest” between a defendant who asserts
that he or she was truthful and a witness who alleges that the defendant’s statement was false.
Inconsistent statements. The federal false declaration statute and various state statutes provide that
when a defendant has made inconsistent statements under oath within the period of the stat-
ute of limitations, the prosecution may establish falsity by offering both statements into evidence
without specifying which of the two statements is false. The defendant may offer the defense that
he or she genuinely believed at the time that each of the statements was true.28
Recantation. MPC Section 241.1(3), the federal false declaration statute, and various state statutes
recognize the recantation defense as a bar to criminal prosecution. The defense applies when in
the same “continuous” proceeding, an individual states that an earlier statement was false. The
recantation must take place before the perjury “substantially affected the proceedings” and before
it became manifest “that the falsification was or would be exposed.” An individual is not entitled
to the recantation defense who waits for the prosecution to raise the falsehood and then corrects
the statement. The thinking behind the recantation defense is that it creates an incentive for
defendants to correct false statements.29
The Legal Equation

Perjury = knowledge of false statement
+ made under oath
+ material to the proceedings.
You Decide 13.2 Charles Nickels, a Chicago officer, and to Cello, a suspended officer. In return, the
police officer, was given a share of gamblers were protected from arrest, and the taverns
payoffs paid by illegal gambling were able to disregard city regulations. Dawson and Cello
interests and bar owners to made the payments in secrecy to Nickels and to sixteen
Dawson, a former Chicago police other members of the police vice squad at a local hotel.
Nickels at trial denied that he received any money from duties.” Nickels contended that his statements were
any bar owner, tavern owner, or businessman who owned “true.” Did Nickels commit perjury? Apply the precedent
an establishment serving alcohol while on official duty as in Bronston v. United States in deciding Nickels. See
a Chicago police officer. He stated, “No sir, not for my United States v. Nickels, 502 F.2d 1173 (7th Cir. 1974).
SUBORNATION OF PERJURY
The federal criminal code and state statutes punish subornation of perjury. Section 1622 pro-
vides that “[w]hoever procures another to commit any perjury is guilty of subornation of perjury,
and shall be fined under this title or imprisoned not more than five years, or both.” The prosecu-
tion must prove beyond a reasonable doubt that an individual intentionally induced another per-
son to testify under oath knowing that the testimony constituted perjury. The crime is complete
once an individual solicits another person to commit perjury.
Members of the “Q Street Gang” witnessed a fight between gang members Everett Allen and
Pernell Gibson. After Allen was knocked to the ground, Julian Riley pulled out a gun and shot
Gibson at point-blank range.
Linwood Davis was present at the gang shooting and was convicted for willfully procuring
Sylvia Norris to commit perjury. Norris testified that Davis had told her to tell the grand jury he
was with her when Gibson was shot although she knew it was not true. The prosecutor then asked
Norris whether she knew that “when he was speaking to you, you understood that you were sup-
posed to come to the grand jury and say something that wasn’t true?” Norris stated that this was
her understanding.
Allen told his girlfriend and the mother of his child, Rhonda Ford, who knew the identity of
the killer, that she “should not tell the grand jury anything she knew about the shooting.”
Allen was convicted of subornation of perjury. The court reasoned that “although Allen did
not specifically instruct Ford to lie . . . he did order: ‘Don’t tell them nothing,’ and Ford certainly
understood that to mean she was not to tell the grand jury the truth concerning what Allen had
told her about the shooter’s identity.” Ford followed Allen’s orders and told authorities “nothing
that incriminated Allen, and in doing so lied about what he had actually said.” As a result, the
appellate court reasoned that “the jury could reasonably infer that lying was the precise result
intended by Allen.” Several judges dissented from the decision and would have reversed Allen’s
conviction because Allen had instructed Ford to remain silent rather than instructing her not to
tell the truth.30
Obstruction of justice, discussed in the next section, is another crime that is designed to pre-
vent and to punish threats to the fair and objective administration of justice.
You Decide 13.3 The lawyer testified that his Williams was involved in suborning perjury and turned
client, Williams, mailed him an the letter over to the government, withdrew as Williams’s
envelope from prison with the des- attorney, and agreed to testify against Williams at trial.
ignation “legal mail.” The envelope Williams took the stand at trial and admitted that his
contained a letter to Williams’s purpose in writing the letter was to induce his cousin to
cousin, instructing him to testify that Williams had been “lie for him.” Williams appealed his conviction and
involved in a marijuana deal on the day of the bank rob- argued that the lawyer acted unethically in testifying
bery with which he was charged and thus could not have against him and that the lawyer’s testimony was respon-
participated in the robbery. The lawyer realized that sible for his conviction. The Seventh Circuit Court of
(Continued)
(Continued)
Appeals upheld Williams’s conviction. The court the lawyer would have suborned perjury had he deliv-
observed that Williams was involved in suborning per- ered the note to the cousin. Would you overturn
jury; that both Williams and his cousin would have com- Williams’s conviction for suborning perjury based on the
mitted perjury had they testified that Williams was lawyer’s alleged unethical behavior? See United States
involved in a drug deal at the time of robbery; and that v. Williams, 698 F.3d 272 (7th Cir. 2012).
OBSTRUCTION OF JUSTICE
The common law supplemented bribery, extortion, and perjury with a fourth crime designed to
protect the integrity of the justice system, obstruction of justice. MPC Section 242.1 includes a
broad statute on obstruction of the administration of the law or other governmental function that
provides that a person commits a misdemeanor “if he purposely obstructs, impairs or perverts the
administration of law . . . by force, violence, physical interference or obstacle, breach of official
duty, or any other unlawful act.”
The central federal statute is 18 U.S.C. § 1503. The first two sections of the statute criminalize
(1) individuals who by force or threat endeavor to influence a juror or judge or court officer and
(2) injuring a juror, judge, or court officer. The third section is the “omnibus clause” and broadly
punishes an individual who
corruptly or by threats or force, or by any threatening letter or communication, influences,

obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administra-
tion of justice.
Other provisions prohibit bribing witnesses,31 witness tampering,32 the destruction of corpo-
rate financial records,33 and corrupt persuasion, which involves interfering with an individual’s
testimony, the destruction of documents, and preventing communication with a federal official
relating to the commission of a federal offense or parole.34
State statutes on obstruction of justice punish the same types of acts prohibited under federal
statutes. The Illinois statute reads as follows35:
A person obstructs justice when, with intent to prevent the apprehension or obstruct the
prosecution or defense of any person, he knowingly commits any of the following acts:
(a) Destroys, alters, conceals or disguises physical evidence, plants false evidence, fur-
nishes false information; or
(b) Induces a witness having knowledge material to the subject at issue to leave the
State or conceal himself; or
(c) Possessing knowledge material to the subject at issue, he leaves the State or con-
ceals himself.
In an Illinois case, Jason Brake was pulled over for a driving offense, and the officer observed
him stuff something into his mouth. Brake was transported to a hospital where his stomach was
pumped and he expelled a bag of heroin. Brake, in addition to unlawful possession of narcotics,
was convicted of obstruction of justice for concealing evidence. An appellate court explained that
Brake’s actions were intended to “destroy, alter, conceal or disguise physical evidence.”36
As you might recall, in addition to statutes punishing obstruction of justice, most states have
statutes punishing accessoryship after the fact, which declares it a crime to “prevent, hinder, or
delay” the apprehension or prosecution of an individual who has committed a criminal offense.
Another related offense is tampering with evidence. An individual who knowingly and
intentionally removes, alters, conceals, destroys, or otherwise tampers with evidence to be offered
in a present or future official proceeding is guilty of tampering with evidence. In People v. Danielak,
Danielak and the victim purchased heroin from Danielak’s dealer. In the morning, Danielak dis-
covered that the victim had died and rather than calling the authorities rang her boyfriend who
told her that he would get rid of the body. Danielak’s boyfriend abandoned the corpse by the side
of the road. A Michigan appellate court concluded that the removal of the body with an intent
to prevent the body from being used as evidence in a criminal trial constituted tampering with
evidence.37 An individual also may tamper with evidence by fabricating documents. In People v.
Kissner, Kissner filed and swore a false affidavit that he was the former boyfriend of the daughter
of the judge who presided over his criminal conviction and that he possibly fathered a child with
the judge’s daughter. As a result, Kissner argued that the judge should have disqualified himself
from trial. Kissner was convicted of tampering with evidence for filing false information in an offi-
cial proceeding. He also was convicted of attempted obstruction of justice for making an effort to
thwart or to impede the administration of justice.38
State criminal statutes, in addition to prohibiting obstruction of justice, also impose a duty of
citizens to assist law enforcement officers.
The Legal Equation

Obstruction of justice = intent to prevent apprehension or obstruct the
prosecution or defense of any person
+ estroys or alters evidence; influences a judge, juror,

d
or witness; or commits another act to influence,
obstruct, or impede administration of justice.
THE CITIZEN’S DUTY TO ASSIST LAW ENFORCEMENT

The common law custom of “hue and cry” requires all men to assist in the apprehension of offend-
ers. In the thirteenth century, the English Parliament passed a law formally recognizing the practice
of citizen assistance to law enforcement. Various municipal ordinances and state statutes impose a
duty on citizens to assist law enforcement. An Ohio statute provides39:
No person shall negligently fail or refuse to aid a law enforcement officer, when called
upon for assistance in preventing or halting the commission of an offense, or in appre-
hending or detaining an offender, when such aid can be given without a substantial risk
of physical harm to the person giving it.
In State v. Floyd, the Connecticut Supreme Court interpreted the requirements of a statute
making it a misdemeanor for “any person to refuse to assist a peace officer or fireman autho-
rized to command assistance in the execution of his duties.” The court held that a peace offi-
cer could require civilian assistance only when “both demonstrable and necessary under all the
circumstances.”40
Statutes also punish the interference with the legal system by individuals who resist arrest.
RESISTING ARREST
The common law as discussed in Chapter 6 recognized the right of an individual to resist an unlaw-
ful arrest. This rule has been abandoned and today is recognized in only twelve states. Washington
state law provides41:
A person is guilty of resisting arrest if he or she intentionally prevents or attempts to prevent

a peace officer from lawfully arresting him or her. . . . Resisting arrest is a misdemeanor.
An arrest requires that the officer physically seize an individual or that the officer reasonably
communicate that the individual is under arrest. In an Ohio appellate court case, the suspect
turned away from an officer and was convicted of resisting arrest. The court reversed the defen-
dant’s conviction on the grounds that the officer testified that he had not yet placed the suspect
under arrest and as a result the suspect could not have reasonably understood that he was under
arrest. The court held that the suspect “could not have resisted arrest if he did not know he was
under arrest.”42
The suspect must “hinder, impede, interrupt, or prevent an arrest.” Some states provide that
the intent requirement is satisfied by either intentional or reckless resistance.
Resisting arrest does not require the application of physical force. Knowing or intentionally
fleeing from a law enforcement officer after the officer has by “visible or audible means . . . identi-
fied himself or herself and ordered the person to stop” has been held to constitute resisting arrest.43
A suspect’s pulling away from an arresting officer who grabbed the suspect’s sleeve and the sus-
pect’s attempting to walk away from the officer was held to constitute recklessly or intentionally
resisting arrest by an Ohio court. The appellate court also noted that “going limp” when an officer
executes an arrest constitutes resisting arrest.44 A defendant who grabbed the steering wheel to
avoid being removed from his car was criminally liable for resisting arrest because he exerted the
“strength and power of his bodily muscles” to counter the officer’s efforts.45
An Arizona court held that kicking and biting a police officer implementing an arrest consti-
tutes resisting arrest under a law that prohibits “intentionally preventing or attempting to pre-
vent” an individual who he or she “has reason to know is a police officer” from executing an arrest
by “using or threatening to use force or otherwise creating a substantial risk of injury.”46
In Williams v. State, a Maryland court held that an offender who fled from the police and
resisted the efforts of a citizen who was attempting to subdue him was guilty of resisting arrest. “All
that must be shown is that a legal arrest was resisted by force. The necessary force may be employed
against someone other than the police officer who is attempting to effectuate the arrest.”47
As you may recall from the discussion of justification defenses, a police officer has the right to
use reasonable force to subdue a suspect. A citizen possesses the right to employ reasonable force to
resist the actions of an officer who employs excessive force in making an arrest. In Shoultz v. State,
an Indiana appellate court determined that an officer used excessive force by spraying pepper spray
in the suspect’s eyes and hitting the suspect in the head and in the leg with a metal flashlight. The
court found that Shoultz did not threaten the officer, did not make threatening gestures or touch
the officer, and was not informed that he was under arrest for a misdemeanor, and that Evansville
police procedures advise officers to avoid blows to the head unless absolutely necessary.48
In State v. Ramsdell, a Rhode Island court explained that citizens are afforded the right of
self-defense against excessive force by the police because they otherwise have no way of protecting
themselves against injury and would be limited to bringing a legal action after having suffered the
injury.49 In March 2012, the Indiana legislature passed a law recognizing that citizens possess the
right of self-defense against police officers unlawfully entering their homes.
State statutes also declare that it is a crime to accept a payment or other benefit in return for
agreeing not to cooperate in prosecuting a defendant for a crime.
The Legal Equation

Resist arrest = intentionally
+ prevents or attempts to prevent
+ arrest.
COMPOUNDING A CRIME
Larceny at common law was a crime committed with alarming frequency and was difficult to
solve. Thieves who were apprehended were subject to harsh punishment to deter the commission
of acts of theft. The severity of the punishment made victims who were aware of the identity of the
thief reluctant to pursue a criminal remedy. Victims instead sought to reach a private settlement
with the thief. The acceptance of money or something of value in exchange for agreeing not to
prosecute a felony was considered a “perversion of justice” and developed into the misdemeanor
of compounding a crime. Liability is limited to the individual who agrees to accept or accepts
payment in return for promising not to pursue the prosecution of the offense.
The Illinois compounding statute is a concise statement of the law of compounding a crime
and reads as follows50:
(a) A person commits compounding a crime when he or she knowingly receives or offers to
another any consideration for a promise not to prosecute or aid in the prosecution of an
offender.
(b) Compounding a crime is a petty offense.
The offense of compounding a crime is based on several considerations:
•• Society. A crime is an offense against society as well as the victim, and the victim should not
impede the public interest in prosecuting criminal behavior.
•• Reporting Crime. Individuals should be encouraged to report crimes to criminal justice offi-
cials who are authorized to make a judgment whether to pursue the prosecution.
•• Public Policy. Economically advantaged offenders are not entitled to “buy” an exemption
from criminal liability.
MPC Section 242.5 made significant changes to the common law crime of compounding a
crime and has been adopted with various modifications by most states. The Colorado statute on
compounding a crime generally follows the MPC. Compounding a crime in Colorado punishes
an individual who accepts or agrees to accept money or a benefit of economic value in return for
failing to pursue a prosecution or for failing to report the commission or suspected commission of
any crime or for failing to provide information relating to a crime.51
A controversial part of the Colorado statute recognizes the defense that the benefit received by
the defendant did not exceed the amount the defendant reasonably believed that he or she lost as
a result of the crime. In other words, it is a defense to compounding a crime that the thief paid you
the money to buy a new phone to replace the phone that was stolen. Is the Colorado provision
consistent with the societal interest in prosecuting offenders?
The Colorado statute is summarized below:
(1) A person commits compounding who accepts or agrees to accept money, property, or any
economic gain in return for:
(a) Failing to pursue prosecution of an offender; or
(b) Failing to report the commission or suspected commission of any crime or informa-
tion relating to a crime.
(2) It is an affirmative defense that the benefit received by the defendant did not exceed an
amount which the defendant reasonably believed to be due as restitution or indemnifica-
tion for harm caused by the crime.
(3) Compounding is a class 3 misdemeanor punishable by up to six months in prison and a
fine of between $50 and $750.
Defendants in Ohio are authorized to agree with a defendant to abandon a pending prosecu-
tion only in regard to theft and three fraud offenses. The Ohio law explicitly provides that such an
agreement is not binding on a prosecutor.52 The Georgia statute requires defendants who accept a
benefit not to prosecute or aid in the prosecution of an individual to obtain approval of the court
or of the prosecuting attorney.53
The New Mexico statute recognizes that the essence of the crime of compounding is “know-
ingly agreeing to take anything of value” in return for concealing a crime, withholding evidence,
or failing to pursue a prosecution. In other words, the crime is complete when an agreement is
reached to accept a payment in return for failing to cooperate with the criminal justice process. It
is not a defense that the individual subsequently is prosecuted or that the prosecutor decided to
drop the charges.54
The common law recognized the crime of misprision of a felony. An individual was liable
who failed to report a felony or act of treason, despite the fact that the individual did not take
an affirmative step to assist the offender. In practice, criminal prosecutions were directed against
individuals who directly assisted an offender.
The federal criminal code continues to recognize the common law crime of misprision of a
felony, although most states do not incorporate the offense into their criminal codes and instead
rely on the crime of accessory after the fact. The elements of misprision of a felony in the U.S. Code
are as follows55:
1. Knowledge a felony was committed;

2. Failure to notify the authorities of the crime;
3. Taking affirmative steps to conceal the crime, such as destruction of evidence.
The Legal Equation

Compounding a crime = knowingly
+ receive or offer item of value
+ in return for a promise not to prosecute or not to aid in

prosecution.
ESCAPE
The common law recognized four different offenses involving flight from custody56:
1. Escape. A detainee’s unlawful flight from confinement.

2. Prison break. A detainee’s unlawful flight from confinement through the use of force.
3. Rescue. Assisting a detainee to unlawfully flee from confinement through the use of
force.
4. Negligent escape. Negligently or recklessly allowing an individual to escape from confinement.
Modern statutes incorporate all of these offenses and punish escape more harshly when phys-
ical force is employed. MPC Section 242.6 provides that an individual is guilty of escape who fails
to return to detention following a temporary leave. The code clarifies that “official detention” for
purposes of escape means detention as a result of arrest or detention in a facility because of a crim-
inal charge or criminal conviction or the fact that the individual detained is waiting for extradition
to another jurisdiction or deportation to another country.
Federal law provides that an individual confined based on a felony charge or conviction who
escapes “custody or confinement” shall be imprisoned not more than five years and fined or
both.57 It also is a federal crime to rescue, attempt to rescue, or aid and assist in an escape.58 Federal
law also prohibits an individual from fleeing across state lines to avoid arrest or confinement.59
State statutes punishing the crime of escape may impose differing lengths of punishment
depending on whether the escapee was charged with or convicted of a misdemeanor or a fel-
ony, whether he or she employed force, or whether he or she was involved in a conspiratorial
relationship with a correctional official or officer. Various states also impose criminal liability on
correctional personnel who knowingly or recklessly permit an escape. The Pennsylvania statute on
escape reads, in part, as follows60:
(a) Escape—A person commits an offense if he unlawfully removes himself from official
detention or fails to return to official detention following temporary leave granted for a
specific purpose or limited period.
(b) Permitting or facilitating escape—A public servant concerned in detention commits an
offense if he knowingly or recklessly permits an escape. Any person who knowingly causes
or facilitates an escape commits an offense . . .
(d) Grading—
(1) An offense under this section is a felony of the third degree [punishable by up to seven
years] where:
(i) the actor was under arrest for or detained on a charge of felony or following con-
viction of crime;
(ii) the actor employs force, threat, deadly weapon or other dangerous instrumental-
ity to effect the escape; or
(iii) a public servant concerned in detention of persons convicted of crime intention-
ally facilitates or permits an escape from a detention facility.
(2) Otherwise an offense under this section is a misdemeanor of the second degree [pun-
ishable by up to two years].
(e) Definition—As used in this section the phrase “official detention” means arrest, detention
in any facility for custody of persons under charge or conviction of crime or alleged or
found to be delinquent, detention for extradition or deportation, or any other detention
for law enforcement purposes; but the phrase does not include supervision of probation or
parole, or constraint incidental to release on bail.
Defenses to Prison Escape

As noted in Chapter 6, inmates threatened with physical assault have successfully invoked the
defense of duress to excuse their escape. As you recall, in People v. Unger, Francis Unger was sub-
jected to and threatened with sexual assault while he was incarcerated.61 After he had escaped and
was recaptured, the Illinois appellate court held that it was unrealistic to require that a prisoner
wait to escape until the moment that he was being “immediately pursued by armed inmates.” The
court also determined that the correctional system was dominated by gangs that were too pow-
erful to be controlled by prison officials. Under these circumstances, Unger was entitled to a jury
instruction on duress because he may have reasonably believed that he had no alternative other
than to escape, to be killed, or to suffer severe bodily harm.
Inmates relying on duress must establish that they did not use force or violence toward prison
personnel or other innocent individuals in the escape and that they immediately contacted author-
ities once having reached a position of safety. Unger is only one of a number of cases that have
recognized that inmates are entitled to rely on duress.62 Do you believe that the judiciary acted
correctly in recognizing Unger’s claim of duress? Are you confident that he was “telling the truth”?
What about his failure to “turn himself in” to correctional authorities?
In United States v. Bailey, the U.S. Supreme Court held that in order to be entitled to a jury
instruction on duress or necessity as a defense to escape, the defendant must offer evidence justi-
fying his or her “initial departure” as well as evidence “justifying his [or her] continued absence
from custody.”63 An “indispensable element of such an offer is . . . a bona fide effort to surrender
or return to custody as soon as the claimed duress or necessity had lost its coercive force.” Escape
is a “continuing offense,” and an individual, although justified in escaping based on duress or
necessity, may be held liable because he or she failed to turn him- or herself into authorities once
the imminent and immediate threat was removed.
Court decisions recognizing the necessity or duress defense focus public attention on the
inability of correctional officials to protect inmates from physical violence. There also is a devel-
oping trend for courts to recognize that an inmate may rely on a justification or excuse defense
because of the need to seek medical care.64
Some courts recognize the defense that an individual who escaped was wrongfully incarcer-
ated, although most courts do not recognize the defense of “self-help.”
You Decide 13.4 After a conviction for bank at midnight. He took a bus to Vancouver, Washington,
robber y and commitment to 175 miles from Seattle, and committed a burglary on
prison, appellant was released to Saturday. He was arrested and detained, did not return
a “half-way house” in Seattle. He to the halfway house, and was charged with escape.
was restricted during furloughs to Was Jones guilty of the federal crime of escape under
the limits of King County, Washington. Jones received a 18 U.S.C. § 751? See United States v. Jones, 569 F.2d
weekend pass, which required that he return by Sunday 499 (9th Cir. 1978).
The Legal Equation

Read People v.
Lovercamp and Escape = knowingly
+
State v. Horn
on the study flee custody following arrest or detention.
site: study
.sagepub.com/
lippmaness2e.

The common belief is that the U.S. Constitution pro- Eyewitness Misidentification. Eyewitness mis-
vides protections that ensure that innocent individuals identification is the leading cause of wrongful
will be protected from wrongful criminal convictions. convictions and was a factor in 72 percent of the
The criminal justice system is premised on the belief wrongful conviction cases. Individuals, in some
that it is better to let nine guilty persons go free than instances, did not clearly observe the perpetrator
to convict one innocent individual. We have become and, in other instances, were influenced by “sug-
increasingly aware that innocent individuals have been gestions” from the police. Roughly 40 percent
convicted and that these wrongful convictions pose a of these misidentifications were cross-racial
significant threat to the integrity of the criminal jus- identifications, which are particularly prone to
tice system. Exoneration is an official decision by a misidentification.
judge that an individual was wrongfully convicted or a
decision by a governor or the president of the United False Confessions. False confessions account for
States to pardon a defendant because he or she was roughly one-quarter of wrongful convictions. These
wrongfully convicted. confessions result from physical and emotional
The number of innocent individuals incarcerated is coercion and the youth or mental disability of the
uncertain, although, according to the National Registry defendants.
of Exonerations, between 1989 and 2012 there were Informants. Jailhouse informants contributed to
a total of 872 non-DNA- and DNA-based exonerations. wrongful convictions in roughly 18 percent of cases.
In 2015, there were a record number of exonerations, Inmate-informants typically testified that they over-
26 of which were based on DNA and 123 of which heard the defendant disclosing details of a crime
were non-DNA exonerations. Fifty-eight of these exon- or admitting his or her guilt to the informant.
erations involved individuals convicted of murder, two-
thirds of whom were minorities; 47 were for narcotics Inaccurate Forensic Science. Roughly 50 percent
offenses; and 12 involved individuals convicted of sex- of wrongful convictions involve inaccurate forensic
ual offenses. Six of the exonerees were on death row analysis of blood, fibers, or DNA. Other methods
when released from prison, and the exonerees served of analysis such as hair analysis, bite marks,
an average of fourteen and a half years in prison. Sixty- firearm tool mark analysis, handwriting exem-
five of these individuals pled guilty, and the remainder plars, and shoe print comparisons have not been
were convicted at trial. fully perfected and often are inaccurate. In other
What accounts for these wrongful convictions? instances, evidence is not accurately catalogued,
misplaced or lost, or even fabricated. Forensic have the same resources as prosecutors and are not
experts also may misrepresent the statistical sig- able to hire forensic experts or investigators.
nificance of their analysis. Do you believe that there is a problem of wrongful
convictions in the United States, or is the seriousness
Defense attorneys, at times, lack the experience of the problem of wrongful convictions greatly exagger-
and expertise of prosecutors. They typically do not ated? Can we prevent wrongful convictions?
CONTEMPT
The English common law recognized the inherent authority of judges to hold an individual in
contempt who interfered with the functioning of the court. An individual held in contempt of
court is referred to as the contemnor. The U.S. Supreme Court has recognized that courts cannot
function unless they have the authority to enforce orders and to punish individuals with contempt
who disrupt the judicial proceedings.65
Courts exercise two types of contempt power, civil contempt and criminal contempt.
Civil contempt is not part of criminal law, and we will focus most of our attention on criminal
contempt. Keep in mind that the difference between civil and criminal contempt is not always
crystal clear.
Civil contempt is disobedience to an order or direction of the judge by one of the litigants
in a judicial proceeding. The contemnor may be jailed or fined or both by the judge until he or
she obeys the order of the court. The purpose of the penalty is to coerce the individual to comply
with the court order rather than to punish him or her. The judge, before ordering incarceration,
is required to find that the individual is capable of complying with the order. An individual, for
example, may not be incarcerated who lacks the money to pay the alimony or child support
ordered by the court to be paid to his or her spouse.66 In Bernard v. Smith, a Tennessee appellate
court overturned Smith’s contempt citation, noting that the trial court acknowledged in its final
order that “[Smith] was not in a financial position to pay the entire amount of child support that
he was ordered to pay. [T]he evidence was insufficient to prove that he had the ability to pay the
amount ordered at that time and that his failure to pay was willful.”67
One of the most well-known examples of the exercise of the contempt power involves Susan
McDougal, who refused to answer questions put to her before a grand jury investigating allegations
of corruption against President Bill Clinton resulting from his tenure as governor in Arkansas. In
1996, McDougal was incarcerated for eighteen months, and she spent eight months in solitary
confinement at various federal correctional institutions.
Criminal contempt protects the efficient and effective functioning of the legal system and is
directed against acts intended to impede or interfere with the justice process or that demonstrate
a lack of respect for the court by denigrating, demeaning, or disregarding the judge. Congress and
state legislative bodies also have the power to hold individuals in contempt of Congress and of the
legislature.
The Judiciary Act of 1789, which established the federal judicial system, recognized that courts
possessed the power of contempt. The modern federal contempt power is set forth in various stat-
utes. The most important of these laws is 18 U.S.C. § 401, which grants the federal courts broad
contempt powers:
A court of the United States shall have the power to punish by fine or imprisonment, at its
discretion, such contempt of its authority, and none other, as
1. Misbehavior of any person in its presence or so near thereto as to obstruct the admin-
istration of justice;
2. Misbehavior of any of its officers in their official transactions;
3. Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
The U.S. Supreme Court noted that the federal contempt statute limits the contempt power of
federal courts to ensuring “order and decorum in their presence”; to securing “faithfulness” on the
part of court personnel, jurors, and prosecutions; and to the enforcement of “obedience to their
lawful orders, judgments and processes.”68
A defendant to be held liable for contempt must be shown, beyond a reasonable doubt, to have
acted with an intentional or knowing criminal intent. In 1976, in Commonwealth v. Washington, the
Pennsylvania Supreme Court overturned the contempt conviction of a defendant who overslept
and failed to appear in court on time.69 The court noted that “[u]nless the evidence establishes an
intentional disobedience or an intentional neglect of the lawful process of the court, no contempt
has been proven. Such is the case here.” The Second Circuit Court of Appeals commented that to
hold a defendant liable for contempt for “misbehavior” in the courtroom, “the contemnor’s con-
duct must constitute misbehavior which rises to the level of an obstruction of and an imminent
threat to the administration of justice, and it must be accompanied by the intention on the part of
the contemnor to obstruct, disrupt, or interfere with the administration of justice.”70
Va. Code Ann. § 18.2-456. Cases in which courts

and judges may punish summarily for contempt
The courts and judges may issue attachments for contempt, and punish them summarily, only in
the cases following:
(1) Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the
administration of justice;
(2) Violence, or threats of violence, to a judge or officer of the court, or to a juror, witness or
party going to, attending or returning from the court, for or in respect of any act or pro-
ceeding had or to be had in such court;
(3) Vile, contemptuous or insulting language addressed to or published of a judge for or in
respect of any act or proceeding had, or to be had, in such court, or like language used in
his presence and intended for his hearing for or in respect of such act or proceeding;
(4) Misbehavior of an officer of the court in his official character;
(5) Disobedience or resistance of an officer of the court, juror, witness or other person to any
lawful process, judgment, decree or order of the court.
Direct and Indirect Criminal Contempt

There are two forms of criminal contempt, direct criminal contempt and constructive criminal
contempt.
Direct criminal contempt is committed in the immediate presence of the judge or court or
sufficiently close to the court to impede or to interfere with the judicial process. Examples of direct
criminal contempt are an insulting remark or physical assault on the judge, repeated disregard of a
judge’s direction to limit the length of an opening or closing statement or cross-examination of a
witness, and disruptive behavior by a spectator. Indirect criminal contempt involves acts that
occur outside the presence of the court that impede or interfere with the judicial process. An exam-
ple is a lawyer who violates a “gag order” and holds a press conference with the media criticizing
the judge. Jurors may be held in contempt for disregarding the judge’s direction not to discuss the
case among themselves or with their friends and family during the trial.
In Davila v. State, Davila uttered an expletive under his breath in the courtroom when learn-
ing that his trial was postponed.71 The judge found Davila’s actions “disrespectful to the court
and that the comment obstructed or hindered the administration of justice.” He was sentenced
to six months in jail along with a fine. A Florida appellate court overturned Davila’s conviction
noting that Davila uttered a brief profanity that was not heard by the judge, his comment did not
interrupt any proceeding, and it was “clear that the administration of justice was not hindered
because the court moved on to the next case without hesitation.” Criminal contempt “requires
some willful act or omission calculated to hinder the orderly functions of the court.” The provoca-
tion must never be “slight, doubtful, or of shifting interpretations. The occasion should be real and
necessary.” The U.S. Supreme Court, in Eaton v. City of Tulsa, noted that a “single usage of street
vernacular, not directed at the judge or any officer of the court, cannot . . . support the conviction
of criminal contempt. . . . [There must be] a likely threat to the administration of justice.”72
The standards for contempt in a specific case nonetheless are not entirely clear. In Greenberg v.
United States, a judge found lawyer Stanley Greenberg in contempt of court for continuing to object
in a loud voice to the prosecutor’s argument before the jury. Greenberg when ordered to be seated
slammed his hand on the table in an angry manner, demanding a ruling from the court. Greenberg
continued to object to the prosecutor’s argument and subsequently was held in contempt for inter-
rupting the court and disrupting the proceedings in an unethical manner. The Ninth Circuit Court
of Appeals overturned Greenberg’s conviction and explained that he “did not cause an obstruction
of the judicial process sufficiently serious to justify a summary criminal contempt conviction. . . .
Greenberg’s loud voice and hand slamming during the heat of a long and hard fought trial,
although annoying and not condoned by this court, do not constitute the type of ‘exceptional
circumstances’ that pose an immediate threat to the judicial process, thereby justifying a summary
criminal contempt conviction.”73
There are different procedures for direct and indirect criminal contempt. Direct criminal
contempt is committed in the presence of the court, and the contemnor may be immediately
punished. The reasons that the judge may summarily punish the contemnor are that the acts
occurred in the presence of the judge and the facts are clear. The judge is required to inform the
individual of the allegations and provide him or her with the opportunity to demonstrate whether
there is any reason why the court should not find that the individual’s acts constitute contempt.
Indirect criminal contempt involves a formal legal process. The judge is required to prepare
a written document setting forth the facts supporting the charge of criminal contempt and is to
provide the individual with a reasonable time to prepare a defense. The contemnor is entitled to a
jury trial if he or she is to be sentenced to more than six months in prison. The defendant in both
indirect and direct contempt must be found guilty beyond a reasonable doubt.
Criminal Contempt and Criminal Law

There is disagreement whether contempt is a crime or an exercise of the judiciary’s supervisory
authority to ensure respect for the judicial process. Professors Perkins and Boyce state that there is
little doubt that criminal contempt should be categorized as a crime. In Bloom v. Illinois, the U.S.
Supreme Court stated that “[c]riminal contempt is a crime in the ordinary senses; it is a violation
of the law, a public wrong which is punishable by fine or imprisonment or both.”74
Various states have adopted contempt statutes categorizing different degrees of criminal
contempt as either a misdemeanor or a felony. The New York contempt statutes categorize sec-
ond-degree contempt as a misdemeanor punishable by up to one year in prison and describe
first-degree and aggravated contempt as a felony.75 Contempt in the second degree is a misde-
meanor punishable by up to one year in prison and includes disorderly conduct committed in
the immediate view and presence of the judge, loud and disruptive behavior directly interrupting
the court’s proceedings, and a refusal to be sworn in as a witness in a court proceeding. Contempt
in the first degree is a felony punishable by between two and five years in prison and includes a
knowing violation of an order of protection with the intent of placing or attempting to place a
person for whose protection the order was issued in reasonable fear of physical injury or death,
and harassing and menacing an individual for whom an order of protection was issued with the
intention of placing the individual for whom the order was issued in reasonable fear of death or
imminent serious physical injury. Aggravated contempt is a felony punishable by between two
and seven years in prison and involves a second violation of an order of protection punishable
under first-degree contempt.
Punishing Criminal Contempt

In United States v. United Mine Workers of America, the U.S. Supreme Court listed the factors that
courts should consider in punishing criminal contempt: (1) the extent of the willful and delib-
erate defiance of the court’s order, (2) the seriousness of the consequences of the contumacious
behavior, (3) the necessity of effectively terminating the defendant’s defiance as required by the
public interest, and (4) the importance of deterring such acts in the future.76
In State v. Geiger, the Illinois Supreme Court noted that judges have the inherent power to pun-
ish with contempt conduct “calculated to impede, embarrass, or obstruct the court in its adminis-
tration of justice or derogate from the court’s authority or dignity, or to bring the administration
of the law into disrepute.”77
A judge, according to the Illinois court, does not possess unlimited discretion to punish con-
tempt; a sentence for contempt may not be “grossly disproportionate.” In Geiger, the Illinois
Supreme Court found that the trial court’s twenty-year sentence for contempt was “manifestly
disproportionate to the nature of the offense and, therefore, unreasonably excessive.” The Illinois
court explained:
Although defendant willfully and deliberately refused to testify, his refusal was based on
his mistaken belief that he had a Fifth Amendment right to do so. . . . [D]efendant’s refusal
to testify might have been driven, in part, by the fact that, as a gang member, he feared
retaliation. . . . [His] contemptuous conduct was nonviolent and he was not flagrantly dis-
respectful to the trial judge. . . . It should also be recognized that defendant’s refusal to tes-
tify did not seriously hamper the State’s ability to prosecute Hollins [his co-defendant].
Legislative Contempt
The power of the U.S. Congress and state legislatures to hold individuals in contempt is based on
the authority of the English Crown to punish insults to the king or to his government with swift
and certain retribution. The Parliament was considered part of the royal government and therefore
was entitled to hold critics in contempt. The legislative contempt power includes the power to
punish “disrespectful and disorderly” behavior as well as individuals who refuse a subpoena to tes-
tify or to submit documents. Individuals have a Fifth Amendment right against self-incrimination,
and the legislature cannot require individuals to testify before a legislative committee if the answer
would expose the individuals to legal liability.
Federal law authorizes Congress to hold individuals in contempt who intentionally refuse
to testify or to produce documents. Contempt is a misdemeanor punishable by a fine of not
more than $1,000 or less than $100 and imprisonment in jail for between one month and twelve
months.78 In 2012, the House of Representatives voted to hold U.S. Attorney General Eric Holder
in contempt for failing to turn over documents to Congress; and in 2007, a Democratic-dominated
Congress voted to hold White House officials liable for contempt based on a failure to cooperate in
an investigation of the firing of several U.S. attorneys. State statutes provide that state legislatures
and legislative committees possess the authority to hold individuals in contempt.
You Decide 13.5 Ali was charged with conspir- subsequently was convicted of criminal contempt and
acy to provide material support to was sentenced to five days to be served consecutively
al Shabaab, a Somali terrorist for each failure to stand. On the third day, Ali told the
organization. Ali did not “rise” judge that she would respect the “all rise” call. The fed-
when the judge entered the court- eral district court accepted that Ali’s failure “to rise”
room. Ali, despite being advised to adhere to the rules reflected her sincerely held religious beliefs. The ques-
of the court, disregarded the “all rise” command of the tion was whether there is a compelling government inter-
U.S. marshal in the courtroom. Ali explained that she est in requiring Ali “to rise” and, if so, whether there is
was aware of the rules of court decorum and that she an alternative approach to maintaining order and secu-
would continue to remain seated despite the imposition rity that does not infringe on Ali’s religious beliefs.
of sanctions because “rising” before the secular author- Should Ali be exempted from “rising” on the judge’s
ity of the court violated her religious beliefs. Ali failed to entry into the courtroom? See United States v. Ali,
stand on ten occasions during the first day of trial and Criminal No. 10-187(MJD) (D. Minn. 2012).

CASE ANALYSIS
In Dobbs v. State, the Texas Court of Appeals was asked to determine whether Dobbs resisted arrest.
Did Dobbs Resist Arrest?
Dobbs v. State, 434 S.W.3d 166 (Ct. Crim. App. Tex. 2014)
Atha Albert Dobbs, appellant, challenges the suffi- of appellant’s hand. Appellant was arrested and trans-
ciency of the evidence to sustain his conviction for ported to jail.
resisting arrest with a deadly weapon. Tex. Penal Code Appellant was charged with continuous sexual
§ 38.03(a),(d). abuse of a young child, aggravated sexual assault, and
In September 2010, appellant was living with his resisting arrest. The resisting-arrest offense was ele-
wife, Dawn, and her two daughters in Washington vated from a misdemeanor to a third-degree felony
County when one of the daughters told Dawn that because the State alleged that appellant had used a
appellant had been sexually abusing her for several deadly weapon during commission of the offense. At
years. Dawn and her daughters moved out of the trial, the jury was unable to reach a unanimous verdict
house the following day. Dawn contacted the police on the continuous-sexual-abuse and aggravated-sexu-
to report her daughter’s allegations, and a warrant was al-assault offenses.
issued for appellant’s arrest. However, the jury did find appellant guilty of
Because Dawn had indicated to police that appel- resisting arrest with a deadly weapon, and it sentenced
lant might resist arrest or attempt to harm himself, him to six years in prison and assessed an $8,000 fine.
five sheriff’s deputies were dispatched to his house The complete statutory elements of the offense of
to carry out the warrant. Appellant saw the deputies resisting arrest are that a person:
approach the house through the kitchen window, and
he retrieved a loaded pistol out of his gun cabinet. The (1) “intentionally prevents or obstructs”
deputies surrounded the house and could see inside
through the windows. Two of the deputies went to the (2) “a person he knows is a peace officer or a per-
back of the house, two to the side, and one officer, son acting in a peace officer’s presence and at
Deputy Kokemoor, approached the front door. From his direction”
his position, Kokemoor could see appellant walking (3) “from effecting an arrest, search, or transpor-
toward the door with a gun in his hand. One officer tation of the actor or another”
shouted to the others that appellant was holding a
gun. The officers drew their weapons, and Kokemoor (4) “by using force against the peace officer or
ordered appellant to put down the gun. Appellant did another.”
not comply. Instead, he pointed the gun at his own
temple. Although Kokemoor could not hear what The offense is elevated from a Class A misde-
appellant was saying, it appeared to him that appel- meanor to a third-degree felony if “the actor uses a
lant was repeatedly mouthing the words, “I’m going deadly weapon to resist the arrest or search.” Applying
to kill myself.” these principles to the facts of this case, we conclude
Appellant then turned around and retreated that the evidence is insufficient to sustain appellant’s
deeper into the house. Kokemoor, believing that resisting-arrest conviction. Here, the record indicates
appellant was suicidal and not a threat to the officers, that appellant at all times either held the gun at his
lowered his gun, pulled out his [T]aser, and entered side or pointed it at himself, and never at officers or
the house. Upon realizing that Kokemoor had entered, anyone else. The record is devoid of any evidence to
appellant began to run into the living room, where indicate that appellant threatened to use any kind of
the deputy shot him with the [T]aser. Appellant then force against the officers, but instead shows that he
fell to the floor, pinning one hand beneath himself threatened only to shoot himself. Kokemoor indicated
while his other hand was still holding the gun. When in his testimony that he did not feel threatened by
appellant did not comply with Kokemoor’s instruction appellant at any point, and no evidence in the record
to put his hands behind his back, the deputy tased suggests that appellant directed any threat to or against
appellant a second time and then kicked the gun out Kokemoor or any of the other officers.
(Continued)
(Continued)
It is true that appellant’s conduct in displaying the leaves every individual involved safe and alive, includ-
gun in the presence of officers and refusing to put the ing the officers. In an arrest situation, this would likely
gun down when ordered to do so could rationally be result in the arrest being delayed until officers could
found to constitute a use of “force” within the mean- safely approach the arrestee.
ing of the statute, but without an additional showing This is particularly true where there is a dangerous
that the force was directed at or in opposition to the or deadly weapon involved that needs to be secured
officers, he cannot reasonably be said to have used for everyone’s, including the officers’, safety. Anytime
force “against” a peace officer. Furthermore, although someone is brandishing a weapon, there is a special
appellant’s refusal to put down the gun when ordered danger. While a person may be threatening only him-
to do so had the likely effect of delaying his arrest, that self, no one can read his thoughts or predict what he
refusal cannot reasonably be understood as constitut- may do next. The dangerous weapon could be used
ing a use of force against the officer by virtue of its against the individual or turned against other people at
being opposed to the officer’s goal of making an arrest. any moment. And if the individual did use the weapon
Likewise, appellant’s efforts to manipulate the situa- only upon himself, there is still a danger of it causing
tion and intimidate officers for the purpose of delay- great harm to the people around him. If, for example,
ing his arrest by threatening to shoot himself cannot a bullet passed all the way through someone’s body
reasonably be found to constitute a use of force against and continued traveling, there could be grave reper-
officers. cussions for a bystander. The officers’ goal would be to
Because he did not use force “against” a peace offi- maintain everyone’s safety, including both the defen-
cer within the meaning of the resisting-arrest statute, dant’s and their own, and this goal is threatened once
we hold that the evidence is insufficient to sustain a weapon is used against any individual involved in
appellant’s conviction. We reverse the judgment of the the situation. Therefore, as demonstrated by this case,
court of appeals and render a judgment of acquittal. someone pointing a gun at his own head while offi-
cers are attempting to make an arrest is a use of force
Dissenting Opinion against those officers that obstructs them from effect-
ing the arrest. Consequently, I believe that the evi-
The majority asserts that Appellant’s actions were not dence of the force used by Appellant was sufficient to
“against” a peace officer because he never directed a convict him of resisting arrest with a deadly weapon.
threat toward the officers. I disagree with this con- Contrary to the majority’s conclusion, Appellant
clusion, however, because I believe the threat was used force “in opposition to” the officer. And because
inherent in Appellant’s actions and did not need to Appellant inherently threatened him, using a firearm
be expressly stated. When officers encounter a person to delay his arrest and gain control of the situation,
threatening to kill himself, whether that person is an a jury could reasonably conclude that he used force
arrestee or not, they will work toward a resolution that against the officer.
CHAPTER SUMMARY
This chapter covered offenses against public admin- influence or to be influenced in carrying out a public
istration and the administration of justice that are duty. The crimes of commercial bribery and sports
designed to ensure that the legal system functions in bribery also have been incorporated into the criminal
a fair fashion. codes of various states. The Foreign Corrupt Practices
Official misconduct in office is defined as corrupt Act extends the concern with good government
behavior by a government officer in the exercise of the abroad and declares that it is illegal for an individual
duties of his or her office in the exercise of his or her or a U.S. company to bribe a foreign official in order
official responsibilities. This may entail malfeasance, to cause that official to assist in obtaining or retaining
misfeasance, or nonfeasance. business.
Bribery is the most frequently prosecuted federal Extortion is the “taking of property by a present
and state crime involving official misconduct. Bribery threat of future violence or present threat to circulate
involves two separate crimes and punishes giving as secret, embarrassing, or harmful information; threat
well as receiving a bribe and requires an intent to of criminal charges; threat to take or withhold official
government action; or threat to inflict economic harm the administration of law by force, violence, physical
and other harms listed in the state statute, with a spe- interference or obstacle, breach of official duty, or any
cific intent to deprive a lawful possessor of money or other unlawful act. Some state statutes list acts consti-
property.” The threat to disclose secret or embarrass- tuting obstruction of justice. A related crime is resist-
ing information is commonly referred to as the crime ing arrest. A person is guilty of resisting arrest if he
of blackmail. or she intentionally prevents or attempts to prevent a
An individual is guilty of perjury who has taken peace officer from lawfully arresting him or her.
an oath to testify truthfully before any “competent A person commits compounding a crime when
tribunal, officer, or person” and who “willfully states he or she knowingly receives or offers to another any
as true any material matter that he or she knows to consideration for a promise not to prosecute or to
be false.” The federal criminal code and state statutes aid in the prosecution of an offender. Courts exercise
punish subornation of perjury, which is procuring two types of contempt: civil contempt and criminal
another to commit perjury. contempt. The next chapter discusses crimes against
An individual is guilty of obstruction of justice the state.
if he or she purposely obstructs, impairs, or perverts
1. Define official misconduct. What types of acts 9. Discuss the types of acts that constitute the crime
constitute official misconduct? of resisting arrest.
2. What are the elements of the crime of bribery of 10. Define the elements of the criminal offense of
a public official and of the crime of a public offi- compounding a crime.
cial’s soliciting of a bribe?
11. Discuss the crime of escape. What must an inmate
3. Discuss commercial bribery and sports bribery. charged with escape demonstrate in order to rely
on the duress defense?
4. What is the purpose of the Foreign Corrupt
Practices Act? 12. Distinguish criminal from civil contempt.
5. How does bribery differ from extortion? 13. What is the difference between direct and indirect
criminal contempt?
6. List the elements of the crime of perjury and of
the crime of subornation of perjury. 14. Discuss the factors a court considers in sentencing
an individual for criminal contempt.
7. What types of acts are involved in the crime of
obstruction of justice? 15. When may an individual be charged with legisla-
tive contempt?
8. What is required of citizens under statutes that
impose a duty to assist law enforcement?
LEGAL TERMINOLOGY
bribery Foreign Corrupt Practices Act perjury

civil contempt gratuity recantation
commercial bribery inconsistent statements resisting arrest
compounding a crime indirect criminal contempt sports bribery
contemnor legislative contempt subornation of perjury
criminal contempt misprision of a felony tampering with evidence
direct criminal contempt obstruction of justice two-witness rule
escape official misconduct

14 CRIMES AGAINST THE STATE
Was John Walker Lindh guilty of lines to fight. It is specifically alleged that Lindh swore
allegiance to jihad in June or July 2001. (United States v.
conspiracy to murder American Lindh, 212 F.Supp.2d 541 [E.D. Va. 2002])
soldiers, or did he engage in a lawful
In this chapter, learn about U.S. counterterrorism laws.
act of war?
While at the Dar ul-Anan Headquarters, Lindh agreed to
receive additional and extensive military training at an Learning Objectives
al Qaeda training camp. He made this decision “know-
ing that America and its citizens were the enemies of 1. Understand the law of treason and evidentiary
Bin Laden and al-Qaeda and that a principal purpose of requirements to prove treason.
al-Qaeda was to fight and kill Americans.” In late May or
June 2001, Lindh traveled to a bin Laden guest house in 2. Know the act and intent requirements for sedi-
Kandahar, Afghanistan, where he stayed for several days, tion and for seditious conspiracy.
and then traveled to the al Farooq training camp, “an al 3. Understand the intent and act standards
Qaeda facility located several hours west of Kandahar.”
required to prove sabotage.
He reported to the camp with approximately twenty other
trainees, mostly Saudis, and remained there throughout 4. Know the elements of the crime of espionage.
June and July. During this period, he participated fully in
the camp’s training activities, despite being told early in 5. Understand the difference between domestic
his stay that “Bin Laden had sent forth some fifty peo- and international terrorism, and terrorism tran-
ple to carry out twenty suicide terrorist operations against scending international borders.
the United States and Israel.” As part of his al Qaeda
6. Know the types of acts that are punished crimi-
training, Lindh participated in “terrorist training courses
in, among other things, weapons, orientating, navigation, nally under federal terrorism statutes.
explosives and battlefield combat.” This training included 7. Understand combat immunity and its impor-
the use of “shoulder weapons, pistols, and rocket-pro- tance for the war on terror.
pelled grenades, and the construction of Molotov cock-
tails.” During his stay at al Farooq, Lindh met personally 8. Know the purpose of immigration law and the
with bin Laden, “who thanked him and other trainees for types of violations of immigration law that are
taking part in jihad.” He also met with a senior al Qaeda punished criminally.
official, Abu Mohammad Al-Masri, who inquired whether
Lindh was interested in traveling outside Afghanistan to 9. Understand the development and functioning of
conduct operations against the United States and Israel. international criminal law.
Lindh declined Al-Masri’s offer in favor of going to the front
349
INTRODUCTION
The American colonists adopted a constitutional system intended to guard against the excesses of
governmental power. However, the colonists also appreciated the need to prevent and to punish
domestic threats to the government.
A significant percentage of the Europeans who settled in the American colonies were fleeing
religious or political persecution and understandably developed a suspicion of government. This
distrust was enhanced by the colonists’ unhappy experiences with the often-repressive policies of
the British authorities. There was almost uniform agreement to build the new American democracy
on a foundation of strong limits on official authority along with a commitment to individual free-
dom. The colonists were also reluctant to adopt the type of harsh legislation that had been used by
English monarchs to stifle dissent and criticism. Nevertheless, there was the reality that the United
States confronted a threat from European countries eager to acquire additional territory in North
America. A number of Americans and most Canadians also continued to harbor deep loyalties to
England. This dictated that the United States put various laws in place to protect the government
and people from attack. In this chapter, we examine these crimes against the state:
•• Treason. Involvement in an attack on the United States.

•• Sedition. A written or verbal communication intended to create disaffection, hatred, or con-
tempt toward the U.S. government.
•• Sabotage. Destruction of national defense materials.
•• Espionage. Conveying information to a foreign government with the intent of injuring the
United States.
Recent events have also led to the development of various counterterrorism laws, including
the punishment of materially assisting terrorism. In reading about these counterterrorism offenses,
you will see that these statutes are modern and updated versions of laws against treason, sedition,
sabotage, and espionage.
In the last portion of the chapter, we examine immigration and immigration crimes that chal-
lenge the ability of the United States to control its borders and to determine who lives and works
in the country.
TREASON
English royalty prosecuted and convicted critics of the monarchy for treason. Monarchs inten-
tionally avoided writing down the requirements of treason in a statute in order to permit the crime
to be applied against all varieties of critics. Parliament was finally able to mobilize enough power
in 1352 to limit the power of the king and to force Edward III to agree to a Declaration Which
Offenses Shall Be Adjudged Treason.
British officials in the American colonies applied the law on treason against rebellious servants
and government critics, who typically were punished by “drawing and hanging.” The drafters of
the U.S. Constitution harbored bitter memories of the abusive use of the law on treason against
critics of the colonial regime. At the same time, the drafters of the U.S. Constitution were con-
scious of the need to protect the newly independent American states against the threat posed
by individuals whose loyalty remained with England and against European states that desired to
expand their territorial presence in North America.
How could these various concerns be balanced against one another? The decision was made
for the Constitution to clearly set forth the definition of treason, the proof necessary to establish
the offense, and the appropriate punishment. James Madison explained in the Federalist Papers No.
43 that as “new-fangled and artificial treasons have been the great engines by which violent fac-
tions . . . have usually wreaked their . . . malignity on each other, the convention have, with great
judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of
the crime.” Article III, Section 3 of the U.S. Constitution provides that treason against the United
States “shall consist only in levying War against them, or in adhering to their Enemies giving
CHAPTER 14 Crimes Against the State 351
them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two
Witnesses to the same overt Act or on Confession in open Court.” Congress is also constitutionally
prohibited from adopting the policy practiced in England of extending penalties beyond the indi-
vidual offender to members of his or her family.
In summary, the United States adopted a law against treason while clearly limiting the defini-
tion of the offense in the Constitution.
Criminal Act and Criminal Intent

Treason is the only crime defined in the U.S. Constitution. Treason against the United States is a
federal crime and may not be prosecuted by the states. Various states, such as California, prohibit
treason against the state government.
The Constitution limits the actus reus of treason to individuals engaged in armed opposition to
the government or in providing aid and comfort to the enemy:
•• Levying war against the United States.

•• Giving aid and comfort to the enemy.
Supreme Court Justice Robert Jackson, in Cramer v. United States, clarified that levying war
consists of taking up arms and that giving aid and comfort involves concrete and tangible assis-
tance.1 Justice Jackson stressed that a citizen may “intellectually or emotionally” favor the enemy
or may “harbor sympathies or convictions disloyal” to the United States, but absent the required
actus reus, there is no treason. He explained that an individual gives aid and comfort to the enemy
by such acts as fomenting strikes in defense plants, charging exorbitant prices for essential arma-
ments, providing arms to the enemy, or engaging in countless other acts that “impair our cohesion
and diminish our strength.” In a treason prosecution of sailors who seized, equipped, and armed
a ship with the intent of attacking the federal government, Supreme Court Justice Joseph Fields
observed that treason may be directed to the overthrow of the U.S. government throughout the
country or only in certain states or in selected localities.2 There is also no requirement that the
enemy be shown to have benefited by the assistance provided by the accused.
The Constitution requires that treason be clearly established by the prosecution. This protects
individuals against convictions based on passion, prejudice, or false testimony.
•• Two witnesses must testify that the defendant committed the same overt act of treason, or
•• the accused must make a confession in open court.
The mens rea of treason is an “intent to betray” the United States. Justice Jackson observed that
“if there is no intent to betray there is no treason.” Proof of the defendant’s treasonous intent is
not limited to the testimony of two witnesses. The required intent may be established by the testi-
mony of a number of witnesses concerning the defendant’s statements or behavior. Do not confuse
motive with intent. An act that clearly assists and is intended to assist the enemy is treason, despite
the fact that the defendant may be motivated by profit, anger, or personal opposition to war rather
than by a belief in the justice of the enemy’s cause.
In Cramer, Justice Jackson cautioned that treason is “one of the most intricate of crimes” and
that the U.S. Constitution “gives a superficial appearance of clarity and simplicity which proves
illusory when it is put to practical application. . . . The little clause is packed with controversy and
difficulty.”
Prosecuting Treason
The United States has brought only a handful of prosecutions for treason, and most offenders have
had their death sentences modified or have received full pardons from the president. Courts have
also been vigilant in ensuring that the rights of defendants are protected. Justice Jackson observed
that the United States has “managed to do without treason prosecutions to a degree that probably
would be impossible except [where] a people was singularly confident of external security and
internal stability.”
Cramer v. United States, in 1945, is the most important treason case decided by the U.S. Supreme
Court. A team of eight German saboteurs was transported across the Atlantic in two submarines
and secretly put ashore in New York and Florida with the intent of engaging in acts of sabotage
designed to impede the U.S. war effort and to undermine morale. Saboteurs Werner Thiel and
Edward Kerling contacted a former friend of Thiel’s in New York, Anthony Cramer. Cramer was
subsequently charged and convicted of treason. His conviction was based on the testimony of two
FBI agents who alleged that the three suspects drank together and engaged in long and intense
conversation. The U.S. Supreme Court reversed Cramer’s conviction based on the government’s
failure to establish an overt act that provided aid and comfort to the enemy. There was no indica-
tion that Cramer provided aid and comfort to the enemy by providing information; by securing
food, shelter, or supplies; or by offering encouragement or advice. In summary, “without the use
of some imagination it is difficult to perceive any advantage which this meeting afforded to Thiel
and Kerling as enemies or how it strengthened Germany or weakened the United States in any way
whatever.”
In D’Aquino v. United States, D’Aquino, a U.S. citizen, was convicted of giving aid and comfort
to the enemy during World War II by working as a radio broadcaster for the Japanese government.
The Court of Appeals for the Ninth Circuit rejected her duress defense. The court held that an
individual may not claim immunity from prosecution based on a claim of mental fear of possible
future action and that “the citizen owing allegiance to the United States must manifest a determi-
nation to resist commands and orders until such time as he [or she] is faced with the alternative of
immediate injury or death.”3
The Legal Equation

Treason = vert act of levying war against the United States or giving aid and
O
comfort to the enemies of the United States
+ intent to betray the United States
+ two witnesses to an overt act of levying war or giving aid or comfort or

confession in open court.
SEDITION
Sedition at English common law was any communication intended or likely to bring about
hatred, contempt, or disaffection with the king, the constitution, or the government. This agita-
tion could be accomplished by seditious speech or seditious libel (writing). Sedition was pun-
ishable by imprisonment, fine, or pillory. In The Case of the Seven Bishops in 1688, English Justice
Allybone pronounced that “[n]o man can take upon him to write against the actual exercise of the
government . . . be what he writes true or false. . . . It is the business of the government to man-
age . . . the government; it is the business of subjects to mind their own properties and interests.”
Sedition was gradually expanded to include any and all criticism of the king or the government
and the advocacy of reform of the government or church, as well as inciting discontent or promot-
ing hostility between various economic and social classes.
During the debates over the U.S. Constitution, various speakers predicted that the effort to
restrict the definition of treason would prove a “tempest in a teapot” because the government
would merely resort to other laws to punish critics. This seemed borne out in 1798, when Congress
passed the Alien and Sedition Acts. These laws punished any person writing or stating anything
“false, scandalous and malicious” against the government, president, or Congress with the
“intent to defame” or to bring any of these parties into “disrepute” or to “excite . . . the hatred of
the . . . people of the United States, or to stir up sedition.” The law differed from the common law
in that the statute recognized truth as a defense. An individual convicted of sedition under the
act was subject to a maximum punishment of two years in prison and by a fine of no more than
$2,000. Although the law was defended as an effort to combat subversives who sought to sow the
seeds of revolutionary violence, in fact it was used to persecute political opponents of the govern-
ment. For instance, a member of Congress from Vermont was sentenced to four months in prison
for writing that President John Adams should be committed to a mental institution.
The modern version of the Alien and Sedition Acts is Section 2383 in Title 18 of the U.S. Code.
This statute punishes an individual who “incites, sets on foot, assists, or engages in any rebellion
or insurrection against the authority of the United States or the laws thereof or gives aid or com-
fort thereto.” This is punished by imprisonment for up to ten years, a fine, or both. An individual
convicted of rebellion or insurrection under this law is prohibited from holding any federal office.
Note that Section 2383 prohibits incitement to sedition or criminal action against the United
States or against a particular law.
The U.S. Code, in Section 2384, punishes seditious conspiracy. This statute is directed at
the use of force against the government, the use of force to prevent the execution of any law, or
the use of force to interfere with governmental property and has been employed by prosecutors in
recent years in terrorist prosecutions.
If two or more persons in any state, territory, or in any place subject to the jurisdiction
of the United States, conspire to overthrow, put down, or to destroy by force the govern-
ment of the United States, or to levy war against them, or to oppose by force the authority
thereof, or by force to prevent, hinder or delay the execution of any law of the United
States, or by force to seize, take, or possess any property of the United States contrary to
the authority thereof, they shall be fined . . . or imprisoned not more than twenty years
or both.
In 1940, Congress adopted the Smith Act, which declared that it was a crime to conspire to
teach or advocate the forcible overthrow of the U.S. government or to be a member of a group that
advocated the overthrow of the government. In Dennis v. United States in 1951, the Supreme Court
upheld the constitutionality of this statute and affirmed the convictions of twelve leaders of the
Communist Party.4 The Supreme Court reconsidered the wisdom of this ruling in Yates v. United
States.5 The Court held that the “Smith Act does not denounce advocacy in the sense of preaching
abstractly the forcible overthrow of the Government. . . . [T]he Smith Act reaches only advocacy
of action for the overthrow of government by force and violence. The essential distinction is that
those to whom the advocacy is addressed must be urged to do something, now or in the future,
rather than merely to believe in something.”
The Legal Equation

Sedition = Intentionally
+ inciting action or acting to overthrow, destroy, oppose by force, or

resist
+ the government of the United States or any law.
SABOTAGE
Sabotage is the willful injury, destruction, contamination, or infection of any war material, war
premises, or war utilities with the intent of injuring, interfering, or obstructing the United States
or an allied country during a war or national emergency. Sabotage is punishable by imprisonment
for not more than thirty years, a fine, or both.6
Whoever, when the United States is at war, or in times of national emergency as declared
by the President or by Congress, with the intent to injure, interfere with, or obstruct the
United States or any associate nation in preparing for or carrying on the war or defense
activities, or with reason to believe that his act may injure, interfere with, or obstruct the
United States or any associate nation in preparing for or carrying on the war or defense
activities, willfully injures, destroys, contaminates or infects, or attempts to so injure,
destroy, contaminate or infect any war material, war premises, or war utilities shall be
fined under this title or imprisoned not more than thirty years, or both.
Sabotage may also be committed in peacetime against defense material, premises, or utilities.7
Whoever, with intent to injure, interfere with, or obstruct the national defense of the
United States, willfully injures, destroys, contaminates or infects, or attempts to so injure,
destroy, contaminate or infect any national-defense material, national-defense premises,
or national-defense utilities, shall be fined under this title or imprisoned not more than
20 years, or both, and, if death results to any person, shall be imprisoned for any term of
years or for life.
Other provisions punish the injury or destruction of harbors, premises, or utilities (e.g., trans-
portation, water, power, electricity) and the production of defective national defense materials.8
Courts have held that sabotage requires a specific intent or purpose to damage the national
defense of the United States. A defendant injuring property that he or she does not realize is part
of the military defense may rely on the defense that although he or she intentionally damaged
the property, there was a lack of a specific intent to injure the national defense. Several courts
have taken the position that a knowledge standard satisfies the mens rea for sabotage. These judges
reason that a defendant should be assumed to know that the destruction of defense material is
practically certain to interfere with the national defense.
In United States v. Kabat, the defendants broke through a fence surrounding a missile silo in
Missouri and used a jackhammer to slightly damage cables and chip a hundred-ton lid covering
the silo.9 The defendants were motivated by a desire to protest nuclear weapons and to educate
the public concerning the mass destruction that would result from nuclear war. They hung ban-
ners and spray-painted slogans that called attention to the fact that these weapons made the
world less rather than more safe and were contrary to biblical teachings. Did the high-minded
defendants who were motivated by a desire to save the planet from nuclear destruction possess a
specific intent to injure, interfere with, or damage the national defense? The Eighth Circuit Court
of Appeals ruled that the defendants’ “intent to injure, interfere with or obstruct the national
defense” was clear from their antinuclear statements and travel to Missouri for the specific purpose
of damaging the missile silo. The damage to the silo clearly “interfered” with the defense of the
United States, and to “allow citizens who thought they could further U.S. security to act on their
theories at will could make it impossible for this country to maintain a coherent defense system.”
The issue remains whether the defendants intended to damage the national defense.
In contrast, in United States v. Walli, the defendants cut through four layers of fencing in a
facility in Oak Ridge, Tennessee, where the government stored enriched uranium for nuclear weap-
ons. They spray-painted antiwar slogans, hung banners, splashed blood, sang hymns, and recited
a message. The Sixth Circuit Court of Appeals reversed the defendants’ conviction for sabotage.
“The defendants’ actions in this case had zero effect, at the time of their actions or anytime after-
wards, on the nation’s ability to wage war or defend against attack. Those actions were wrongful,
to be sure, and the defendants have convictions for destruction of government property as a result
of them. But the government did not prove the defendants guilty of sabotage. . . . That is not to
say, of course, that there is nothing a defendant could do at Y-12 [National Security Complex] that
would constitute sabotage. . . . If a defendant blew up a building used to manufacture components
for nuclear weapons, for example, and thereby prevented the timely replacement of weapons in
the nation’s arsenal, the government surely could demonstrate an adverse effect on the nation’s
ability to attack or defend—and, more to the point, that the defendant knew that his actions were
practically certain to have that effect.”10
The Legal Equation

Sabotage = Intentionally or knowingly
+ injuring, interfering with, obstructing, destroying, contaminating,

infecting, or defectively producing
+ ational defense materials, premises, utilities, or activities (in times

n
of war, national emergency, or peace).
ESPIONAGE
The U.S. Code prohibits espionage or spying. The statute punishes espionage and espionage
during war as separate offenses.11
Whoever, with intent or reason to believe that it is to be used to the injury of the United
States or to the advantage of a foreign nation, communicates, delivers, or transmits, or
attempts to communicate, deliver, or transmit, to any foreign government . . . faction or
party or military or naval force within a foreign country . . . or to any representative or
citizen thereof either directly or indirectly any document, writing, code book, signal book,
sketch, photograph, photographic negative, blueprint, plan, map, model, note, instru-
ment, appliance, or information relating to the national defense, shall be punished by
death or by imprisonment for any term of years or for life, except that the sentence of
death shall not be imposed unless [the jury or judge determines that the offense resulted
in] the death of an agent of the United States . . . or directly concerned nuclear weaponry,
military spacecraft or satellites, early warning systems, or other means of defense or retal-
iation against large-scale attack; war plans; communications intelligence or cryptographic
information; or any other major weapons system or element of defense strategy.
Espionage in wartime is also defined in federal statutes.
Whoever, in time of war, with intent that the same shall be communicated to the enemy,
collects, records, publishes, or communicates, or attempts to elicit any information with
respect to the movement, numbers, description, condition, or disposition of any of the
Armed Forces, ships, aircraft, or war materials of the United States, or with respect to the
plans or conduct, or supposed plans or conduct of any naval or military operations, or
with respect to any works or measures undertaken for or connected with, or intended for
the fortification or defense of any place, or any other information relating to the public
defense, which might be useful to the enemy, shall be punished by death or by imprison-
ment for any term of years or for life.
One of the most active areas of criminal activity in the new global economy is the theft by
foreign governments of trade secrets from U.S. corporations. This may range from the formula for
a new anticancer drug to the code for a computer program. Individuals involved in “industrial
espionage” are subject to prosecution under the Economic Espionage Act of 1996.
In Gorin v. United States, the U.S. Supreme Court ruled that espionage during peacetime requires
that the government establish that an individual acted in “bad faith” with the intent to injure the
United States or to advantage a foreign nation.12 The foreign government that receives the infor-
mation may be a friend or foe of the United States, because a country allied with the United States
today may prove to be its enemy tomorrow. The majority in Gorin held that “evil which the statute
punishes is the obtaining or furnishing of this guarded information, either to our hurt or another’s
gain.” Material that is stolen from U.S. military files concerning British troop strength and armed
preparedness may not directly harm the United States but may assist or advantage another country
in protecting itself against the British and may constitute espionage.
Note that espionage during wartime is easier for the prosecution to prove and requires the
establishment of an intent to communicate information to the enemy along with a clear act
toward the accomplishment of this goal.
National defense information that has not yet been officially released to the public but that
has been reported by the press or generally referred to in government publications may be the sub-
ject of espionage because the government has not made the decision to release the specific details.
Stealing plans for the design of a nuclear bomb in U.S. defense files would be espionage, despite
the fact that the broad outlines of the design are available on the Internet.
Information subject to espionage is not limited to the specific types of materials listed in the
statutes. Under the espionage law, national defense is broadly interpreted to mean any informa-
tion relating to the military and naval establishments and national preparation for war.
There have been six major indictments for violation of the Espionage Act. In a recent pros-
ecution, in July 2013, Chelsea Elizabeth Manning, twenty-nine, a U.S. solider, was convicted of
violating the Espionage Act and other criminal statutes after disclosing nearly three-quarters of a
million classified or unclassified-but-sensitive military and diplomatic documents. Manning was
sentenced to thirty-five years in prison, with the possibility of parole after eight years, and dishon-
orable discharge from the military.
The Legal Equation

Espionage = ommunicating, delivering, transmitting, or
C
attempting to communicate, deliver, or transmit
information
+ to a foreign government, faction, or military
+ urposely to injure or with reason to believe that

p
material will injure the United States or will be
used to advantage a foreign nation.
Espionage during wartime = ollecting, recording, publishing, communicating,

C
or attempting to elicit information relating to
national defense that might be useful to the enemy
+ with intent to communicate to the enemy
+ during time of war.
TERRORISM
The bombing of the Alfred P. Murrah federal building in Oklahoma City on April 19, 1995, and the
attack on the United States on September 11, 2001, combined to push Congress to act to prohibit
and to punish terrorism. Keep in mind that most acts of terrorism within the United States are
prosecuted as ordinary murders, arson, kidnappings, and bombings rather than as acts of terrorism.
The central provisions of the U.S. law on terrorism are found in Title 18 of the U.S. Code, Chapter
113B, “Terrorism.” These statutes have been amended and strengthened by the Antiterrorism
and Effective Death Penalty Act (1996) and the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act (2001), better known as the
USA Patriot Act.
Definition of Terrorism
Various federal statutes use the term terrorism or terrorist. For instance, it is a crime to materially aid
a terrorist or foreign terrorist organization. What is terrorism? Federal law divides terrorism into
international terrorism and domestic terrorism.
International terrorism is distinguished by the fact that it occurs outside the United States. Both
international and domestic terrorism are intended to intimidate or coerce the American popula-
tion or are intended to influence or affect the public policy of the United States. We have several
tragic examples, including the August 7, 1998, bombing of the U.S. embassies in Kenya (killing
213 and injuring more than 4,500) and Tanzania (killing 11 and injuring 85) and the attack on a
U.S. Navy warship, the USS Cole, in Yemen on October 12, 2000 (killing 17 U.S. sailors). Other clear
examples are the acts of violence intended to force the United States to withdraw troops from Iraq.
International terrorism is defined as
violent acts or acts dangerous to human life that primarily occur outside the United States,
would be criminal if committed in the United States, and appear to be intended to either
intimidate or coerce a civilian population; or influence the policy of a government by
intimidation or coercion; or affect the conduct of a government through mass destruction,
assassination, or kidnapping.
Domestic terrorism is defined in the same fashion with the exception that it occurs “primarily
within the territorial jurisdiction of the United States” rather than “outside the United States.”
Note that terrorism is defined in terms of the intent of the offender rather than by the target of
the attack.
The U.S. Code defines the federal crime of terrorism as an offense “calculated to influence
or affect the conduct of government by intimidation or coercion, or to retaliate against govern-
ment conduct” that involves a violation of a long list of violent and dangerous federal offenses.13
Chapter 113B of the U.S. Code provides for several specific terrorist crimes that are discussed in
the following sections.
Terrorism Outside the United States

Section 2332 of the U.S. Code punishes various crimes against nationals of the United States that
occur outside the United States. The killing of a U.S. national outside the United States is punish-
able by imprisonment for a term of years or death as well as a fine. Voluntary manslaughter is sub-
ject to ten years’ imprisonment along with a fine, and involuntary manslaughter is punished by
a fine or imprisonment of not more than three years, or both. A conspiracy to kill a U.S. national
is punished by up to life imprisonment as well as a fine, and a conspiracy leading to an attempt is
subject to imprisonment for up to twenty years in prison as well as a fine. Physical violence with
the intent to cause serious bodily injury to a U.S. national and physical violence that results in
serious bodily injury are both subject to a fine as well as to imprisonment by up to ten years. The
U.S. assertion of the right to prosecute and punish criminal acts that occur outside U.S. territory is
termed extraterritorial jurisdiction.14
Terrorism Transcending National Boundaries

U.S. law punishes as a felony acts of terrorism that occur within the United States but that are
connected to foreign countries. Offenses involving conduct occurring both outside and within the
United States are termed terrorism transcending national boundaries. In other words, the
fact that conspirators meet in another country and plan to attack a U.S. city would not remove
the crime from the jurisdiction of the United States. Prime examples are the September 11, 2001,
attacks on the World Trade Center and Pentagon, which were planned, directed, and funded from
outside the United States. This statute permits the United States to prosecute individuals living in
Afghanistan, England, Germany, Spain, and other countries who were involved in the 9/11 con-
spiracy. Federal law also provides that criminal attacks against U.S. agencies, embassies, or property
abroad or in the air or at sea, or against property owned by the U.S. government or by a U.S. citizen,
are considered to have taken place within U.S. territory and are punishable by the United States.
Three crimes of violence are included within the statute on terrorism that transcends national
boundaries:
1. Crimes Against the Person. Killing, kidnapping, maiming, or committing an assault resulting
in serious bodily injury or assault with a dangerous weapon against an individual within
the United States.
2. Crimes Against Property Harming the Person. Acts that create a substantial risk of serious
bodily injury by destroying or damaging any structure, real estate, or object within the
United States.
3. Inchoate Offenses. Threats, attempts, and conspiracies to commit either of these two offenses
and accessories after the fact.
The offenses under this provision must meet one of several conditions. These include the
following:
•• Federal Official. The victim or intended victim is the U.S. government, a member of the uni-
formed services, or any official, officer, employee, or agent of the legislative, executive, or
judicial branches or of any department or agency of the United States.
•• Property. The building, vehicle, real estate, or object is owned or leased by the United States
or a U.S. citizen.
•• Territory. The offense is committed within the territorial sea or U.S. airspace.
•• Interstate Commerce. The offense makes use of the mail or any facility in interstate or foreign
commerce.
Penalties include capital punishment for a crime resulting in death, life imprisonment for the
crime of kidnapping, thirty-five years for maiming, thirty years for aggravated assault, and twen-
ty-five years for damaging property.15
Weapons of Mass Destruction

The use, threat, attempt, or conspiracy to use a weapon of mass destruction is punishable by
imprisonment for a term of years or life and, in the event of death, by life imprisonment.
The statute on weapons of mass destruction, 18 U.S.C. § 2332a, declares that it is a crime when
such a weapon is used outside the United States against a U.S. resident or citizen, within the United
States against any person so as to affect commerce, or within or outside the United States against
property that is owned, leased, or used by the federal government. It is also an offense to threaten,
attempt to use, or conspire to use a weapon of mass destruction. A weapon of mass destruc-
tion is defined as follows:
•• Toxic or poisonous chemical weapons that are designed or intended to cause death or seri-
ous bodily injury (poison gas).
•• Weapons involving biological agents (smallpox).
•• Weapons releasing radiation or radioactivity at a level dangerous to human life (nuclear
material).
•• Explosive bombs, grenades, rockets, missiles, and mines.
Possession of a biological or toxic weapon or delivery system that cannot be justified by a

peaceful purpose is subject to imprisonment for up to ten years, a fine, or both.16 In April 2005,
Zacarias Moussaoui, while denying involvement in the September 11, 2001, attacks against the
Pentagon and World Trade Center, pled guilty to conspiring to use an airplane as a “weapon of
mass destruction” to attack the White House.
Mass Transportation Systems

Subways, buses, and trains are some of the most vulnerable and potentially damaging terrorist
targets. In 1995, a chemical gas attack on a subway train in Tokyo resulted in twelve deaths and
more than five thousand injuries. Federal law provides that it is a crime to willfully wreck, derail,
set fire to, or disable a mass transportation vehicle or ferry or to damage or impair the operation
of a signal or control system. It is also a federal crime to cause the death or serious bodily injury
of an employee or passenger on a mass transportation vehicle. Other provisions prohibit using a
weapon of mass destruction against a mass transportation system. These offenses are punishable
by a fine and as much as twenty years in prison. An aggravated offense punishable by up to life in
prison results when the mass transportation vehicle or ferry is carrying one or more passengers or
the offense results in the death of any person. The destruction of aircraft and air piracy are subject
to punishment under separate provisions of the U.S. Code. Air piracy is defined in Title 49, Section
46502, as “seizing or exercising control” over an aircraft by force, violence, threat of force or vio-
lence, or any form of intimidation with a wrongful intent.17
Harboring or Concealing Terrorists

It is a crime to harbor or conceal a person who an individual knows or has reasonable grounds to
believe has committed or is about to commit various terrorist offenses or crimes posing a serious
and widespread danger. Harboring a terrorist is subject to ten years in prison and to a fine.18
Material Support for Terrorism

The offense of providing material support to a terrorist is defined in the U.S. Code as pro-
viding material support or resources or concealing or disguising the nature, location, source, or
wnership of material support or resources, knowing or intending that they are to be used in
o
preparation for or in carrying out various terrorist acts or acts of violence or in the preparation of,
concealment of, or escape from such crimes. This is punishable by imprisonment for no more than
fifteen years, a fine, or both. In the event that death results, the accused is subject to imprisonment
for a term of years or capital punishment.
There is a separate offense of knowingly providing material support to a foreign terror-
ist organization or an attempt or conspiracy to do so. This is also subject to imprisonment for
up to fifteen years, a fine, or both. The death of a victim may result in imprisonment for up to life.
Material support or resources in support of terrorism include money, financial services, housing,
training, expert advice or assistance, personnel, safe houses, false documentation, communication
equipment, facilities, weapons, lethal substances, explosives, transportation, and other “physical
assets.” Medical and religious materials are exempt from the prohibition on material support.19
The U.S. Secretary of State is charged with determining whether a group is a foreign terrorist
organization.20
These two statutes are the primary laws relied on by prosecutors in terrorist prosecutions in
the United States. Prosecutors explain that the material support statutes are central in combating
terrorism because hard-core terrorists rely on the support provided by individuals willing to pro-
vide financial resources, passports, expertise in computer technology, weapons, and information.
These laws also have been relied on by the government to prosecute individuals for “providing
personnel to terrorist organizations” who have traveled abroad to undergo terrorist training. The
material support statutes have the advantage of permitting the arrest of individuals before ter-
rorist plots are carried out. Critics caution that the material support provisions may be used to
prosecute individuals who do not pose a threat. For instance, defendants in a New York case who
had attended a terrorist training camp abroad and who had not been involved with terrorist
activities after returning to the United States pled guilty to providing material support. It is also
argued that these statutes are broadly written and that individuals may be criminally prosecuted
who have merely donated money to a hospital or school in the Middle East run by a group labeled
as terrorist.
In 2010, in Holder v. Humanitarian Law Project, the U.S. Supreme Court addressed the constitu-
tional status of the material support statute.21 The U.S. Secretary of State designated the Kurdistan
Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE) as “foreign terrorist organi-
zations.” Two U.S. citizens and six domestic organizations claimed that they wished to provide
support for the lawful and nonviolent humanitarian and political activities of the PKK and LTTE
and that applying the material support law to prevent them from doing so violated their First
Amendment rights. The plaintiffs explained that they wanted to provide “training” and “expert
advice or assistance” to members of the PKK on how to seek humanitarian financial support from
various international institutions such as the United Nations and how to use international law to
peacefully resolve disputes. They also wished to engage in political advocacy promoting the cause
of Kurds living in Turkey and Tamils living in Sri Lanka. The plaintiffs expressed the fear that “such
advocacy might be regarded as ‘material support’ in the form of providing ‘personnel’ or ‘expert
advice or services.’”
The Supreme Court first held that the intent requirement of the material support statute is
satisfied by knowledge of the “organization’s connection to terrorism” and that the government
is not required to establish that a defendant possessed the “specific intent to further the organiza-
tion’s terrorist activities.”
The Court decided that terms like training, expert advice or assistance, service, and personnel pro-
vided fair notice to a person of ordinary intelligence of “what is prohibited.” Further, the Court
ruled that those terms are not “so standardless” that they authorize or encourage “seriously dis-
criminatory enforcement.” The plaintiffs undoubtedly were aware that activities in which they seek
to engage “readily fall within the scope of the terms ‘training’ and ‘expert advice or assistance.’”
The most significant part of the decision in Holder addresses whether the material support stat-
ute, as applied to plaintiffs, violates the freedom of speech guaranteed by the First Amendment.
The Court clarified that the material support statute does not prohibit “independent advocacy” on
behalf of a terrorist organization. Individuals are free to “say anything they wish on any topic.” The
material support statute is “carefully drawn to cover only a narrow category of speech . . . under
the direction of, or in coordination with foreign groups that the speaker knows to be terrorist
organizations.”
The Court explained that nonviolent or humanitarian material support intended to promote
peaceable lawful conduct can further violent terrorists in “multiple ways.” Terrorist organizations
often conceal their violent activities behind what appears to be lawful activity. Advocacy by out-
side groups working under the guidance or with the cooperation of a terrorist group may promote
the organization’s legitimacy as a responsible political organization, which helps the organiza-
tion to recruit members and raise funds. Money that is raised for medical assistance or refugee
support releases the organization’s other funds to support terrorism. Terrorist organizations may
Read Holder v. use the skills they learned in peaceful negotiation for “lulling opponents into complacency and
Humanitarian Law ultimately preparing for renewed attacks.” The Supreme Court in Holder made the important point
Project and United
that humanitarian assistance to a terrorist organization allowed the organization to devote funds
States v. Bell on the
study site: study to violent terrorism that formerly were used for humanitarian purposes. Counterterrorism prosecu-
.sagepub.com/ tions in federal courts of late have focused on the prosecution of individuals who have attempted
lippmaness2e. to travel to the Middle East to fight on behalf of the Islamic State (ISIS).22
The Legal Equation

Material support to terrorists = roviding material support to a terrorist or
P
concealing or disguising the nature, location,
source, or ownership of material
+ k nowing or intending that support or resources

are used in preparation for or in carrying out
various terrorist acts.
Material support to foreign
terrorist organizations
= roviding material support
P
to a foreign terrorist organization
+ knowingly providing material support.

Dzhokhar Tsarnaev, “Jahar” to his friends, was a pop- when cornered by the police engaged in a shoot-out in
ular high school student who liked wrestling, soccer, which Tamerlan was killed. Jahar escaped in the SUV
and hip-hop; enjoyed marijuana; and followed popular and took refuge in a dry-docked motorboat. Roughly
television programs like The Walking Dead and Game eighteen hours later, Jahar found himself surrounded by
of Thrones. On April 15, 2013, nineteen-year-old Jahar police and surrendered to FBI negotiators. Jahar before
and his twenty-six-year-old brother Tamerlan positioned being apprehended scrawled a message in the boat
two pressure cooker homemade bombs at the finish that “the U.S. . . . is killing our innocent civilians . . .
line of the Boston Marathon. The marathon is held each I can’t stand to see such evil go unpunished. . . . We
year on Patriots’ Day, a long-standing citywide celebra- Muslims are one body, you hurt one, you hurt us all. . . .
tion. The bombs exploded as the runners approached, F__ America.” He allegedly also referred to the victims
killing three persons, including an eight-year-old child, of the Boston bombings as “collateral damage” who
and injuring 264 others, a number of whom sustained deserved their fate because of the Muslims killed by
life-altering injuries. As you read about the Tsarnaev the United States across the globe. Jahar also allegedly
brothers, do not forget about the pain and suffering of wrote that he did not mourn for his brother who now was
the victims. a martyr in paradise.
As the investigation centered on the Tsarnaev Jahar pled not guilty to thirty counts, seventeen
brothers, they fled and encountered and killed Sean of which carried a potential death penalty. The central
Collier, a Massachusetts Institute of Technology police count charged him with using and conspiring to use a
officer; and they stole an SUV, kidnapped the driver, and weapon of mass destruction that resulted in death.
Media reports indicate that Jahar told the FBI that fol- him ever referring to his Islamic faith. He seemed to
lowing the Boston bombing along with his brother he fit right into the diverse, politically progressive world
had planned to drive to New York City to launch a sec- of Cambridge. Jahar’s tweets were the typical teenage
ond attack in Times Square. Investigators failed to find mixture of immature observations and occasional phil-
direct links between the Tsarnaev brothers and foreign osophical reflections and were more concerned with
terrorist groups although there is substantial evidence wrestling and smoking marijuana than with Islam and
that they were inspired by online jihadist videos and politics.
postings. Jahar’s calm and controlled exterior was briefly
A police investigation later connected Tamerlan to broken on only one occasion when he proclaimed his
a triple homicide that took place on the tenth anniver- anger over Americans’ equation of Islam with terrorism.
sary of the September 11, 2001, attacks on the World He argued that jihadist terrorism was justified because
Trade Center and Pentagon. of the violence of U.S. foreign policy and tweeted that
An estimated twenty-five terrorist plots by home- 9/11 was an “inside job.”
grown terrorists had been foiled prior to the attack Jahar beneath the surface was percolating with
launched by the Tsarnaev brothers. The brothers’ anger and frustration. Anzor, his father, was a lawyer
attack was the first large-scale domestic terrorist who after arriving in the United States worked as a
attack that had proven successful since the Septem- mechanic for $10 an hour and regularly erupted in
ber 11 attacks. Experts on terrorism continue to spec- anger. His frustration over the growing Americanization
ulate on why Jahar, whose extremist views undoubtedly of his daughters Ailina and Bella led him to force them
are shared by other young Americans, decided to trans- into arranged marriages. Anzor, depressed over his
late these views into a deadly attack. inability to support his family and opposed to Zubei-
Tamerlan already was a teenager when his family dat’s growing fundamentalism, returned to Russia. He
emigrated to the United States, and his speech was divorced and later reconciled with Zubeidat who fled
heavily accented. He abandoned his aspirations to be Boston after being arrested for shoplifting.
an Olympic boxer when he was disqualified from com- Jahar, although earning strong grades in high
petition for taunting an opponent. Tamerlan fit the pro- school, was disappointed over the fact that the elite
file of a frustrated young migrant who is angered by the private Boston colleges were beyond his financial
downward trajectory of his life in America and who finds means. He abandoned his aspiration of studying engi-
comfort in religious fundamentalism. Zubeidat, Tamer- neering after flunking most of his university classes.
lan’s mother, who herself had become increasingly reli- Jahar found himself heavily in debt from college and
gious, encouraged Tamerlan to abandon his life in the made money by selling marijuana.
“fast lane” and to turn to Islam. He became increas- Jahar created a Facebook page that describes his
ingly intolerant and militant, and at one point Tamerlan worldview as divided between “Islam” and a “career
was arrested for domestic battery against his girlfriend and money” and posted links to Islamic fighters. Jahar
who alleged that he pressured her to convert to Islam tweeted that the Prophet Muhammad was his role
and to dress modestly. Tamerlan’s outspoken condem- model and proclaimed “never underestimate the rebel
nation of fellow Muslims in the mosque and his online with a cause.”
interest in al Qaeda led to his being placed on U.S. and In early February, Tamerlan drove to New Hamp-
Russian terrorist watch lists. At one point, he traveled shire and purchased forty-eight mortars containing
to Dagestan in an effort to join the Islamic resistance approximately eight pounds of low-explosive powder.
to the Russians. Married with a child, Tamerlan found He also bought nine-millimeter handguns along with
himself unemployed and on public assistance and on two hundred rounds of ammunition. Jahar began down-
the verge of being forced to vacate his apartment in loading al Qaeda military manuals including an article
Cambridge, Massachusetts. on “Make a Bomb in the Kitchen of Your Mom,” which
Jahar, on the other hand, was a formidable high offered detailed instructions on how to construct a
school wrestler and popular with his peers at Cam- pressure cooker explosive.
bridge Rindge and Latin high school in Cambridge, On April 15, 2013, Jahar, wearing his high school
Massachusetts. He was a volunteer in the “Best Bud- wrestling jacket, ignited the bomb at the finish line
dies” program, became a U.S. citizen on September of the Boston Marathon. Was the bombing a political
11, 2012, and earned a $2,500 scholarship to the statement or a product of personal frustrations? Why
University of Massachusetts at Dartmouth. did Jahar bomb the Boston Marathon? In May 2015, a
His friends described Jahar as “superchill,” Boston jury determined that Jahar should receive the
“smooth,” “cool,” and “always joking” and cannot recall death penalty. Do you agree with the verdict?
Combat Immunity
American John Walker Lindh, the so-called American Taliban, was captured by U.S. forces in
Afghanistan and subsequently pled guilty to supplying services to the Taliban (the Islamic fun-
damentalist ruling party of Afghanistan) and of carrying an explosive during the commission of
a felony. Lindh’s lawyer made various arguments on his behalf, including combat immunity.
This is the contention that, as a member of the Afghan military, Lindh was immune from criminal
prosecution for acts of lawful combat undertaken in the defense of Afghanistan against the United
States. The U.S. government, however, contended that Lindh was not entitled to the status of a
legal combatant and that his acts on behalf of the Taliban regime in Afghanistan were unlawful
criminal offenses rather than acts of lawful warfare. The standard for determining whether an indi-
vidual is a lawful or unlawful combatant is set forth in the Geneva Convention of 1949. The
Geneva Convention is an international treaty regulating the law of war that the United States has
signed and recognizes as part of U.S. law.
The Geneva Convention Relative to the Treatment of Prisoners of War sets forth four criteria
an organization must meet for its members to qualify for lawful combatant status:
1. The organization must be commanded by a person responsible for his subordinates;

2. The organization’s members must have a fixed distinctive emblem or uniform recognizable
at a distance;
3. The organization’s members must carry arms openly; and
4. The organization’s members must conduct their operations in accordance with the laws
and customs of war.
A federal district court concluded that Lindh did not qualify as a lawful combatant. The Taliban
lacked a coherent command structure; wore no distinctive, recognizable insignia; and, although
they carried arms openly, failed to observe the laws and customs of war by targeting civilians.23
State Terrorism Statutes

Virtually every state has a terrorism statute to cover criminal acts that do not fall within federal
jurisdiction. Consider the “beltway sniper” case from Virginia, Muhammad v. Commonwealth.24 The
two defendants killed at least ten individuals as they traveled from Maryland and the District of
Columbia through Virginia. Muhammad was sentenced to death and appealed his conviction to
the Virginia Supreme Court.
An act of terrorism under Virginia law is an “act of violence . . . committed with the intent
to (i) intimidate the civilian population at large or (ii) influence the conduct or activities of the
government of the United States, a state, or locality through intimidation.” An “act of violence”
includes a list of aggravated felonies including murder, voluntary manslaughter, mob-related felo-
nies, malicious assault or bodily wounding, robbery, carjacking, sexual assault, and arson.
The jury sentenced Muhammad to two death sentences based on his terrorist killings. The
Virginia Supreme Court held that the provisions of the statute provided sufficient notice to ordi-
nary individuals to understand “what conduct they prohibit and do not authorize” and that the
law did not impose “arbitrary and discriminatory enforcement.” Intimidate has been defined in
various cases to mean “putting in fear,” and population at large requires a “more pervasive intimida-
tion of the community rather than a narrowly defined group of people. . . . We do not believe that
a person of ordinary intelligence would fail to understand this phrase.”

On June 5 and June 6, 2014, British newspaper the that the U.S. government was requiring large telecom-
Guardian and the Washington Post disclosed that an munications providers to turn the telephone numbers
anonymous source had leaked classified information dialed by Americans over to the National Security
Agency (NSA), the U.S. agency charged with gathering exploited by foreign countries. Snowden’s responsi-
foreign electronic intelligence. On June 9, the Guardian bilities allowed him access to top-secret Internet pro-
released a video interview with Edward Snowden, the grams and provided him with the opportunity to illicitly
individual responsible for leaking the information. The transfer data onto a thumb drive that he transmitted
thirty-three-year-old Snowden was a former CIA and to journalists whom he trusted at the Guardian and
NSA contractor. After fleeing the United States and Washington Post.
being denied asylum in Hong Kong and unsuccessfully The information leaked by Snowden to journalists
seeking asylum in several other countries, Snowden revealed that since 2006 the NSA had engaged the
received temporary asylum for three years in Russia. bulk collection of the domestic and foreign telephone
Little is known about Snowden’s background. He numbers dialed by Americans. This secret “metadata”
reportedly never received a high school diploma and program called PRISM was based on bulk search
briefly attended a community college. There is little warrants issued every three months by the Foreign
doubt that he had a strong interest and aptitude for Intelligence Surveillance Court (FISC) that directed
computers and maintained an active online presence. nine Internet providers to turn records of the phone
In 2004, Snowden, whose father was a veteran of the numbers dialed by every American over to the govern-
Coast Guard, joined the military in the aftermath of ment. Once an individual was specifically singled out
9/11 and enlisted in a program that fast-tracked him for additional investigation, the NSA followed a “three
into the Special Forces. hops rule,” analyzing all phone calls made by the target
Snowden’s slight build and various physical limita- and all phone calls made by individuals called by the
tions made him an unlikely candidate for the Special target, as well as all phone calls made by the individu-
Forces. In the summer of 2005, he was discharged als they called. This might be followed by a search war-
from the Army after allegedly breaking both his legs. rant allowing the government to monitor the content of
Snowden spent the next several months as an IT secu- an individual’s phone calls and e-mails.
rity specialist at the University of Maryland Center for Snowden believed that the government’s bulk col-
Advanced Study of Languages, a joint enterprise with lection and storage for five years of all the numbers
the U.S. government. dialed by Americans without any basis to suspect that
In 2007–2008, Snowden worked in Geneva, U.S. citizens or residents were agents of a foreign
Switzerland, as a contractor for the CIA maintaining power or were engaged in criminal activity violated
network security. He later claimed that he grew dis- the Fourth Amendment prohibition on unreasonable
illusioned with the agency, and in 2009, Snowden searches and seizures and violated the privacy of U.S.
terminated his relationship with the CIA, perhaps in citizens. Studies concluded that the collection of the
response to an investigation into his attempt to access numbers dialed by an individual could reveal virtually
classified files. every aspect of an individual’s life. Snowden argued
Snowden next was hired by Dell as a contractor that the U.S. public was entitled to be informed that
engaged in computer analysis for the NSA. He was sent the phone numbers they dialed were being monitored,
to Japan, which fulfilled a longtime interest in Japanese and explained that his goal in revealing large amounts
culture and language. At some point, Snowden was cer- of information to selected journalists was to spark a
tified as an “Ethical Hacker” employed by the NSA to worldwide discussion on privacy and on the state sur-
counteract efforts to penetrate the agency’s computer veillance of individuals across the globe.
system. Snowden subsequently was transferred to A special review committee appointed by President
Hawaii to work at the NSA’s regional cryptological center. Obama concluded that the “metadata” program had
A central event in shaping Snowden’s attitudes not been proven essential to detecting terrorist plots
toward U.S. security services was his inadvertent dis- and the information obtained through the “metadata”
covery of a report that provided a detailed account of program could have been obtained by relying on the
the Bush administration’s warrantless wiretapping of traditional search warrant procedure.
both Americans and foreigners following 9/11. His The disclosure of PRISM led President Obama to
sense of alienation was heightened in March 2013 propose reforms in the program.
when James Clapper, the director of national intelli- Congress after an extended debate adopted the
gence, denied before a congressional committee that USA Freedom Act, which provided that phone providers
the NSA had been collecting data on U.S. citizens, a retain metadata rather than turning the data over to
claim that Snowden knew to be false. the government. The NSA may obtain access to these
Snowden next took a job with the technology records only by obtaining a warrant from the FISC.
consulting firm Booz Allen Hamilton (BAH), which The U.S. government has charged Snowden with
like Dell contracted to work with the NSA. Snowden espionage, and government officials labeled him a
worked as a professional hacker charged with detect- coward for fleeing rather than remaining in the United
ing vulnerabilities in U.S. technology that might be States and assuming responsibility for his actions.
(Continued)
(Continued)
Critics asked how Snowden could portray himself as Americans and the Obama administration’s approval
a defender of liberty and human rights and yet seek of the warrantless search for suspicious addresses
asylum in a repressive regime like Russia. Some or computer codes that might be linked to malicious
high-ranking intelligence officials claim that Snowden’s hackers regardless of whether they were affiliated with
disclosures have made the United States less safe a foreign government.
and have placed Americans at risk. The journalistic community recognized Snowden’s
Polls indicated that the majority of Americans contribution to public awareness of government sur-
view Snowden as a whistle-blower rather than a trai- veillance by awarding him the Ridenhour Award for
tor. Absent his unlawful leaking of information, the “truth telling,” and the journalists who worked with him
“metadata” program would not have been revealed. also were the recipients of prestigious awards for their
Snowden’s revelations led to the disclosure of other reporting. Should Snowden be permitted to return to
surveillance programs, such as the Post Office’s the United States and plead guilty to a minor criminal
extensive monitoring of the mail sent and received by violation?
IMMIGRATION
Immigration law regulates the entry of individuals into the United States, the length of their
stay, whether they may work or attend school, the treatment of individuals who are in the United
States unlawfully, and the process by which individuals can become legally naturalized citizens.
Immigration law protects the border of the United States and the sovereign right of the United
States to control who may enter and who may remain in the country. The United States is known
as a “nation of immigrants,” and underlying U.S. immigration policy is the widespread recognition
that immigrants have made substantial contributions to U.S. society.
In 2012, in Arizona v. United States, the U.S. Supreme Court affirmed that immigration is the
responsibility of the federal government with a limited state role.25 The Court held that three
provisions of the Arizona law SB 1070 were preempted by the federal Immigration Reform and
Control Act (IRCA). Allowing state legislation would interfere with the ability of the federal gov-
ernment to set a uniform immigration policy.
The United States historically favored immigration from Europe and limited immigration and
citizenship for nonwhites and for individuals who were considered to possess an immoral charac-
ter. This restrictive policy changed with the Immigration and Nationality Act of 1952 (INA).26 The
act eliminated restrictions on Asian immigration and naturalization but continued a quota system
introduced in the early twentieth century based on country of origin. The act also created quo-
tas for individuals with special skills and opened the door to reuniting families. The INA, which
continues to provide the foundation of U.S. immigration law, also created the Immigration and
Naturalization Service (INS) to enforce the law.
The 1986 IRCA, also known as the Simpson-Mazzoli Act, obligated employers to check their
employees’ immigration status, imposed criminal penalties on employers who hired undocu-
mented workers, and provided an amnesty for immigrants who unlawfully entered the United
States before January 1, 1982.27
The Immigration Marriage Fraud Amendments of 1986 sought to limit “sham marriages” by
placing restrictions on the ability of individuals to marry to obtain citizenship.28 The Immigration
Act of 1990 attempted to equalize immigration from various countries by establishing “diversity
visas” for regions that, in the previous year, had not received a fair portion of immigration.29
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) addresses a
broad range of areas.30 One important focus is on immigration-related offenses such as alien smug-
gling, the creation of fraudulent documents, and the deportation of aliens who commit criminal
offenses.
In 2003, the INS was subsumed in the newly created Department of Homeland Security (DHS).
The Bush administration’s intent was to combine a number of agencies into the new department
in order to increase cooperation in responding to domestic terrorism, natural disasters, and other
emergencies and to promote the sharing of intelligence. Most of the responsibilities of the INS
were divided between three services of the DHS. Customs and Border Protection has assumed
the INS’s border patrol duties; Citizenship and Immigration Services now is responsible for the
INS’s naturalization, asylum, and permanent residence functions; and Immigration and Customs
Enforcement handles the INS’s deportation, intelligence, and investigatory functions.
In 2007, Congress voted to build roughly seven hundred miles (1,100 km) of fencing along the
United States–Mexico border to fortify those portions of the border not already protected.
Roughly forty million migrants have been legally admitted into the United States since 2000.
There are approximately two million residents in the United States who have been admitted to work
or to attend school. Individuals can enter the United States from Mexico or Canada to shop or to visit
friends as long as they possess certain documents. Immigration enforcement at the border, airports,
and seaports involves ensuring that individuals do not enter the United States without the required
documents or enter the United States with forged documents (see Table 14.1). Estimates are that
there are roughly eleven million individuals in the United States without legally required documen-
tation. Many of these individuals have lived and worked in the United States for a lengthy period of
time. Immigration reform is intended to legalize the status of these individuals and of their families.
Deferred Action for Childhood Arrivals (DACA) was implemented by the Obama
administration in June 2012 and allows undocumented immigrants who entered the country
before their sixteenth birthday and before June 2007 to receive a renewable two-year work permit
and exemption from deportation. DACA does not provide a path to citizenship. In November
2014, President Obama once again bypassed the U.S. Congress and implemented Deferred Action
for Parents of Americans (DAPA), which provides temporary residence and work privileges to the
parents of lawful residents and U.S. citizens. The Fifth Circuit Court of Appeals issued an injunc-
tion blocking enforcement of DAPA as well as an expansion of DACA pending a trial on the consti-
tutionality of President Obama’s executive order. In 2016, the U.S. Supreme Court divided 4-to-4
on the case, which had the effect of upholding the injunction and returning the case to the lower
court for trial.
Violations of Immigration Law

The relevant immigration laws are compiled in the U.S. Code. According to the DHS, some of
the most frequently violated provisions of federal immigration law include those listed below.
Individuals violating these provisions are subject to fines and, in some instances, to criminal pen-
alties and to deportation from the United States back to their country of origin:
•• Making, altering, or using counterfeit immigration documents.

•• Assisting or encouraging aliens to come to the United States unlawfully in violation of the
law.
•• Harboring an illegal alien.
•• Knowingly employing aliens who do not have permission to work in the United States.
•• Failing to depart the United States when ordered removed (deported).
•• Attempting to enter the United States by misrepresenting (lying about) material facts.
•• Entering into a marriage to circumvent the immigration laws.
•• Entering or attempting to enter the United States without permission after having been
removed (deported).
•• Assisting an alien to enter the United States for prostitution or other immoral purposes.
State Laws
A number of U.S. cities and towns have declared themselves to be “sanctuary cities.” The police
and other city workers in these cities and towns are instructed to overlook the presence of undoc-
umented individuals whom they encounter. A larger number of cities and counties participate in
the “Secure Communities” program and notify federal law enforcement when they apprehend
individuals who are unlawfully present in the United States. Critics assert that the program results
in individuals who do not pose a danger being turned over to federal authorities and deported.
There is a strong backlash against immigrants. Forty-five state legislatures in 2012 considered
restrictions on undocumented individuals. Courts have struck down many of the most restrictive
measures as unconstitutional based on the fact that immigration is a federal rather than a state
concern.
Table 14.1 Selected Provisions of U.S. Immigration Law
8 U.S.C. § 1324
(a) Criminal penalties for harboring an undocumented individual
(1)
(A) Any person who—
(i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner
whatsoever such person at a place other than a designated port of entry . . . or
(ii) remains in the United States in violation of law, transports, or moves or attempts to transport or move such
alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;
(iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United
States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or
shield from detection, such alien in any place, including any building or any means of transportation;
(iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless
disregard of the fact that such coming to, entry, or residence is or will be in violation of law; or
(v)
(I) engages in any conspiracy to commit any of the preceding acts, or
(II) aids or abets the commission of any of the preceding acts,
shall be punished as provided in subparagraph (B).
(B) A person who violates subparagraph (A) shall, for each alien in respect to whom such a violation occurs—
(i) in the case of a violation of subparagraph (A)(i) or (v)(I) or in the case of a violation of subparagraph (A)(ii),
(iii), or (iv) in which the offense was done for the purpose of commercial advantage or private financial gain,
be fined . . . [and/or] imprisoned not more than 10 years, or both;
(ii) in the case of a violation of subparagraph (A)(ii), (iii), (iv), or (v)(II), be fined . . . [and/or] imprisoned not more
than 5 years, or both;
(iii) in the case of a violation of subparagraph (A)(i), (ii), (iii), (iv), or (v) during and in relation to which the person
causes serious bodily injury to . . . or places in jeopardy the life of, any person, be fined [and] imprisoned not
more than 20 years, or both; and
(iv) in the case of a violation of subparagraph (A)(i), (ii), (iii), (iv), or (v) resulting in the death of any person, be
punished by death or imprisoned for any term of years or for life, fined . . . or both.
8 U.S.C. § 1324C
(e) Criminal penalties for failure to disclose role as document preparer
(1) Whoever, . . . knowingly and willfully fails to disclose, conceals, or covers up the fact that they have, on behalf
of any person and for a fee or other remuneration, prepared or assisted in preparing an application which was
falsely made . . . for immigration benefits, shall be fined . . . imprisoned for not more than 5 years, or both,
and prohibited from preparing or assisting in preparing, whether or not for a fee or other remuneration, any
other such application.
(2) Whoever, having been convicted of a violation of paragraph (1), knowingly and willfully prepares or assists in
preparing an application for immigration benefits . . . shall be fined in accordance with title 18, imprisoned
for not more than 15 years, or both, and prohibited from preparing or assisting in preparing any other such
application.
8 U.S.C. § 1253
(a) Penalty for failure to depart
(1) In general
Any alien against whom a final order of removal is outstanding . . . who—

(A) willfully fails or refuses to depart from the United States within a period of 90 days from the date of the final order
of removal . . . ,
(B) willfully fails or refuses to make timely application in good faith for travel or other documents necessary to
the alien’s departure,
(C) connives or conspires, or takes any other action, designed to prevent or hamper or with the purpose of
preventing or hampering the alien’s departure pursuant to such, or
(D) willfully fails or refuses to present himself or herself for removal at the time and place required by the
Attorney General pursuant to such order, shall be fined . . . or imprisoned not more than four years. . . .
8 U.S.C. § 1325
(c) Marriage fraud
Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall
be imprisoned for not more than 5 years, or fined not more than $250,000, or both.
8 U.S.C. § 1227
(i) Crimes of moral turpitude. Any alien who—

(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an
alien provided lawful permanent resident status) and
(II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.
(ii) Multiple criminal convictions. Any alien who at any time after admission is convicted of two or more crimes
involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined
therefore and regardless of whether the convictions were in a single trial, is deportable.
(iii) Aggravated felony. Any alien who is convicted of an aggravated felony at any time after admission is deportable.
(iv) High speed flight. Any alien who is convicted of a violation (relating to high speed flight from an immigration
checkpoint) is deportable.
(v) Failure to register as a sex offender . . . is deportable. . . .
(B) Controlled substances

(i) Conviction. Any alien who at any time after admission has been convicted of a violation of (or a conspiracy
or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a
controlled . . . other than a single offense involving possession for one’s own use of 30 grams or less of marijuana,
is deportable.
(ii) Drug abusers and addicts. Any alien who is, or at any time after admission has been, a drug abuser or addict is
deportable.
(C) Certain firearm offenses
Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale,
exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale,
exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device . . . is
deportable.
(E) Crimes of domestic violence, stalking, or violation of protection order, crimes against children and
(i) Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a
crime of child abuse, child neglect, or child abandonment is deportable. . . .
INTERNATIONAL CRIMINAL LAW

The origins of international criminal law can be traced to the prosecution of Nazi war crim-
inals at Nuremberg in 1944. The international community subsequently agreed to a number of
treaties that addressed crimes that are so serious that they are considered to be the concern of all
nations and peoples. These treaties prohibit and punish acts such as genocide, torture, war crimes,
and terrorism. A majority of countries in the world have signed these treaties and have incorpo-
rated the provisions into their domestic criminal codes.
International crimes typically are committed by individuals acting on behalf of the govern-
ment. The exception, of course, is terrorism, which in most cases is committed by “non-state
actors.” Prosecutors in countries in which regimes carry out international crimes are reluctant or
frightened to indict government officials for crimes, even after the officials have left office. As a
result, the perpetrators of international crimes, in many instances, have not been brought to the
bar of justice.
The international community periodically has convened tribunals to prosecute and to punish
government leaders who have carried out international crimes and who otherwise would have
gone unpunished. In 1993, the United Nations established criminal tribunals to hear cases arising
from genocide and war crimes in Rwanda and in Yugoslavia. The most significant step occurred
in 2001 with the formation of the International Criminal Court (ICC). This court has jurisdiction
over serious international crimes and comprises judges from countries that have joined the court.
The United States, although a leading nation in the movement to prosecute and punish interna-
tional crimes, is not a member of the ICC.
The United States, as part of its international obligation to punish international crimes, has
claimed jurisdiction over international offenses committed outside its territorial boundaries and
has brought offenders to trial before U.S. domestic courts. The United States, for example, has
prosecuted pirates for attacks on European and U.S. ships off the coast of the African country of
Somalia.
CASE ANALYSIS
In United States v. Mohammed Zaki Amawi, a U.S. district court reviewed the defendant’s convic-
tion for conspiring to provide material support to overseas terrorism, conspiring to kill and maim
Americans overseas, unlawful distribution of information relating to making a “bomb vest,” and
unlawfully distributing an Arabic language “Explosives Cookbook.”
Was the Defendant Guilty of Terrorism?
United States v. Mohammed Zaki Amawi, 579 F. Supp. 2d 923 (N.D. Ohio 2008)
The government charged that the defendant members of the mosque. Griffin, a former U.S. Army
[Mohammed Zaki Amawi] agreed with Marwan Special Forces soldier, held himself out to be a radi-
El-Hindi and Wassim Mazloum to provide material cal convert to Islam. He talked about the need for
support for terrorism and kill and maim Americans jihad and to resist the American campaign in Iraq and
overseas. Much of the government’s evidence—espe- American policies elsewhere. He promoted himself as
cially evidence of the conspiratorial agreement and being able to provide jihadist training.
certain acts undertaken in furtherance of that agree- The defendants succumbed to his efforts to
ment—was obtained by an undercover informant, encourage them to agree to obtain training with the
Darren Griffin. prospect of either going to Iraq to fight with the insur-
The F.B.I. hired Griffin, a former D.E.A. under- gents against American forces or themselves becom-
cover informant, to go into the Toledo community ing trainers of others for the same purpose. To some
to try to uncover terroristic plots and activities. He extent, some training was given to those who went to
became active in a Toledo, Ohio, mosque attended by a firing range and shot pistols.
the defendants. Prior to Griffin’s activities, the defen- In addition, the government proved other actions
dants were not acquainted with one another, though directly related to the desire to become trained jihad-
they may have been aware that [the others] were ists. Among these were watching and discussing
jihadist videos showing . . . snipers shooting soldiers, In any event, the record showed numerous con-
installation and detonation of improvised explosive tacts by Amawi separately with El-Hindi and Mazloum.
devices and suicide bombings. Other videos promoted Between July, 2004, and February, 2006, Amawi spoke
Islamic jihad against America. by telephone with El-Hindi twenty-two times and
“[A]fter viewing the evidence in the light most Mazloum twenty-one times. In addition, he met sepa-
favorable to the prosecution” and giving the govern- rately with each on several occasions.
ment the benefit of all reasonable inferences, I am per- In sum, there was enough evidence to enable
suaded that a “rational trier of fact could have found the jury to find beyond a reasonable doubt that the
the essential elements of the crime beyond a reason- defendant conspired with the other defendants to pro-
able doubt.” vide material support to terrorism and kill and maim
Americans overseas.
Conspiracy to Kill or Maim Americans
Overseas and Provide Material Support Distribution of Bomb Vest Video
to Terrorism The defendant found and downloaded the bomb vest
video from the Internet. Accompanied by Arabic com-
The defendant acknowledges his own interest in, and mentary, the video showed how to place ball bear-
discussion with his codefendants about combat train- ings, or ball bearing-type objects, into an explosive
ing, security, and defense tactics. Those discussions, compound, install a detonator, and enfold everything
he contends, did not encompass a “plan or agreement into a vest to be worn by a suicide bomber. The video
with them to acquire or implement any such training also showed the effects of detonating the bomb vest.
in a particular location, at a particular time or to kill It was, in essence, similar to a “how to” demonstration
and maim anyone in particular.” that one might see on a cooking channel or a home
That doesn’t matter. . . . What matters is that the improvement show. As the demonstration was pro-
government’s evidence sufficed to enable the jury ceeding, Amawi translated the Arabic commentary for
to find beyond a reasonable doubt that the defen- Griffin.
dant intended to acquire and use martial training to Count Three charged the defendant with having
engage in jihad in Iraq against American forces, and, unlawfully distributed the bomb vest video by show-
ultimately, to kill, or try to kill American military per- ing it to Griffin. Showing the video sufficed to estab-
sonnel. lish distribution.
An example of this intent comes from evidence The government also had to prove the defendant
of the defendant’s efforts, via contact with someone intended that the information be used for an activity
in Syria, to obtain the explosive Astrolite. . . . The that constituted a federal crime of violence. The jury
government’s proof showed, in other words, that the could reasonably conclude beyond a reasonable doubt
defendant’s interest in being trained was not limited that Amawi showed the video to Griffin intending
to defending himself from possible acts of violence. that Griffin, the former Special Forces solider, would
It also showed that he was doing more than simply use the information from the video either to make
getting together with like-minded individuals to talk similar bombs or teach others how to do so.
about common interests, such as political views or reli-
gious beliefs.
A keystone in the evidentiary construct was Distribution of the “Explosives
Griffin’s video of a meeting between the defendant,
El-Hindi and Mazloum on February 16, 2005. The film
Cookbook”
secretly created by Griffin showed that the defendants The government charged the defendant with also hav-
agreed with objectives and actions being discussed ing unlawfully distributed materials relating to explo-
between the three of them and Griffin. Those objec- sives intending that it be used to commit a federal
tives included recruiting others, maintaining secu- crime when he transferred an Arabic-language manual
rity, initially acquiring small arms training, creating a on explosives to Griffin.
“cell,” the need for money, manpower and weapons Amawi copied the manual onto a compact disc
in Iraq, and the need according specifically to Amawi, along with other materials and gave the CD to Griffin.
“to know explosives these days” as the best way for This sufficed to prove distribution of the manual.
“making damage.” To be sure, as the defendant points The defendant contends, inter alia, that there is no
out, this was the only occasion when all three code- evidence that Griffin, whose knowledge of Arabic is
fendants met with one another. A single encounter rudimentary, could or did undertake to read the man-
suffices to create a conspiracy. ual, or that he was even aware that it was included
(Continued)
(Continued)
on the disc and what it contained. Thus, according to else, the manual, the jury reasonably could find, had
Amawi, he could not have intended for Griffin to use been given to Griffin to enable him to make its infor-
the information in the manual to commit a federal mation available to Amawi and others, and thereby
crime of violence—a crucial element in this charge. facilitate their actions against Americans in Iraq.
Griffin’s ability on his own to understand the Whether Griffin could, acting solely on his own,
material doesn’t matter. Nor does the fact that he and have used the manual for those purposes doesn’t mat-
Amawi did not discuss the manual and its contents. ter. Thanks to Amawi, he had the material in his pos-
I am persuaded that, under all the circumstances, as session, and would have been able, had he been so
presented by the totality of the evidence in the case, inclined, to put it to the uses to which Amawi—by its
Amawi gave the manual to Griffin intending and transfer, if nothing else—wanted it to be put. Griffin
expecting that at some point it would be used and use- had held himself out to be able and willing to train
ful in the commission of a crime of violence. Amawi and others in terroristic tactics. There would
The jury could reasonably conclude beyond a rea- have been no reason to give Griffin the manual—or
sonable doubt that Amawi, himself fluent in Arabic, show him the bomb vest video for that matter—except
gave the explosives manual to Griffin in anticipation to facilitate the training that Amawi and his codefen-
that Griffin would use the manual during his train- dants anticipated receiving and enabling them, in
ing of Amawi and the other defendants. Whether ulti- due course, to create, deploy and detonate explosive
mately translated for Griffin by Amawi or someone devices.
CHAPTER SUMMARY
The founding figures of the United States were fear- Sabotage is the willful injury, destruction, con-
ful of a strong centralized government, and they pro- tamination, or infection of war materials, premises,
vided protections for individual freedom and liberty. or utilities with the intent to injure, interfere with, or
Nevertheless, they appreciated that there was a need obstruct the United States or an allied nation in pre-
to protect the government from foreign and domes- paring for or carrying on war. Sabotage may also be
tic attack and accordingly incorporated a provision on committed in peacetime and requires that the dam-
treason into the Constitution. This was augmented by age to property is carried out with the intent to injure,
congressional enactments punishing sedition, sabo- interfere with, or obstruct the national defense of the
tage, and espionage. In recent years, the United States United States.
has adopted laws intended to combat global terrorism. An individual is guilty of espionage who commu-
Treason is defined in Article III, Section 3 of the nicates, delivers, or transmits information relating
U.S. Constitution. Treason requires an overt act of to the national defense to a foreign nation or force
either levying war against the United States or provid- within a foreign nation with the purpose of injuring
ing aid and comfort to an enemy of the United States. the United States or with reason to believe that it will
The accused must be shown to have possessed the injure the United States or advantage a foreign nation.
intent to betray the United States. The Constitution Espionage in wartime involves collecting, recording,
requires two witnesses or a confession in open court publishing, communicating, or attempting to elicit
to an act of treason. such information with the intent of communicating
Sedition at English common law constituted a this information to the enemy.
communication intended or likely to bring about The U.S. Code, Title 18, Chapter 113B, punishes
hatred, contempt, or disaffection with the king, the various terrorist crimes. This has been strengthened by
constitution, or the government. This was broadly the Antiterrorism and Effective Death Penalty Act of
defined to include any criticism of the king and of 1996 and by the USA PATRIOT Act (2001). Terrorism
English royalty. U.S. courts have ruled that the pun- is divided into international and domestic terrorism.
ishment of seditious speech and libel may conflict International terrorism is defined as violent acts or
with the First Amendment right to freedom of expres- acts dangerous to human life that occur outside the
sion. As a result, judges have limited the punishment United States; domestic terrorism is defined as vio-
of seditious expression to the urging of the necessity lent acts or acts dangerous to human life that occur
or duty of taking action to forcibly overthrow the inside the United States. Terrorist acts transcending
government. A seditious conspiracy requires an agree- national boundaries are coordinated across national
ment to take immediate action. boundaries.
Terrorist acts require the intent to either intimidate the use of weapons of mass destruction and prohibits
or coerce a civilian population, to influence the pol- the harboring or concealing of terrorists. The United
icy of a government by intimidation or coercion, or to States does not consider terrorists to be lawful combat-
affect the conduct of a government by mass destruction, ants, and they are not viewed as prisoners of war under
assassination, or kidnapping. The U.S. government has the Geneva Convention by U.S. authorities. Virtually
primarily relied on the prohibition against material every state has adopted a terrorism statute.
assistance to terrorists and to terrorist organizations Most terrorist offenses are based on the foundation
in order to prevent and punish terrorist designs before offenses of treason, sedition, sabotage, and espionage.
they are executed. This law has proven to be a pow- Immigration law is intended to protect the sov-
erful tool to deny terrorists the resources they require ereign authority of the United States to control indi-
to carry out attacks. Federal law also punishes terrorist viduals who enter and who reside in the territorial
crimes involving attacks on mass transit systems and boundaries of the country.
1. Treason is the only crime defined in the U.S. 5. How do the definitions of international and domes-
Constitution. What is treason? What type of evi- tic terrorism differ?
dence is required to establish treason?
6. List some of the terrorist crimes set forth in the U.S.
2. Define sedition. Distinguish seditious speech Code.
from seditious libel. What constitutes a seditious
7. Define and discuss combat immunity.
conspiracy?
8. What is the purpose of immigration law? Give some
3. What is sabotage? Distinguish between sabotage
examples of violations of immigration law that are
and sabotage during wartime.
punished criminally.
4. Explain the difference between espionage and espi-
onage during wartime.
LEGAL TERMINOLOGY
combat immunity Geneva Convention of 1949 sedition

crimes against the state immigration law seditious conspiracy
Deferred Action for Childhood international criminal law seditious libel
Arrivals (DACA)
international terrorism seditious speech
domestic terrorism
material support to a foreign terrorism transcending national
espionage terrorist organization boundaries
extraterritorial jurisdiction material support to a terrorist treason
federal crime of terrorism sabotage weapons of mass destruction

Notes
CHAPTER 1 4. Alexander Hamilton, “The Federalist No. 84,” in A.

Hamilton, J. Madison, and J. Jay, The Federalist Papers
(New York, NY: New American Library, 1961), p. 512.
1. Ala. Code § 13-12-5; Fla. Stat. § 823.12; R.I. Gen. Laws 5. Calder v. Bull, 3 U.S. 386 (1798).
§§ 11-12-1–3; Wyo. Stat. §§ 6-9-301(a), 6-9-202; La. Rev. 6. Carmell v. Texas, 529 U.S. 513 (2000).
Stat. § 14:67.13. 7. Stogner v. California, 539 U.S. 607 (2003).
2. Henry M. Hart Jr., “The Aims of the Criminal Law,” Law 8. Grayned v. Rockford, 408 U.S. 104 (1972).
and Contemporary Problems 23, no. 3 (1958): 401–441. 9. Coates v. Cincinnati, 402 U.S. 611 (1971).
3. In re Winship, 397 U.S. 358 (1972). 10. Kolender v. Lawson, 461 U.S. 352 (1983).
4. William Blackstone, Commentaries on the Laws of 11. Coates, 402 U.S. at 611.
England, vol. 4 (Chicago, IL: University of Chicago 12. Coates, 402 U.S. at 611.
Press, 1979), p. 5. 13. Papachristou v. Jacksonville, 405 U.S. 156 (1971).
5. Kansas v. Hendricks, 521 U.S. 346 (1997). 14. Nebraska v. Metzger, 319 N.W.2d 459 (Neb. 1982).
6. Tex. Penal Code Ann. § 1.02. 15. Bolling v. Sharpe, 347 U.S. 497 (1954).
7. N.Y. Penal Law § 1.05. 16. Buck v. Bell, 274 U.S. 200 (1927).
8. Jerome Hall, General Principles of Criminal Law, 2nd ed. 17. Brown v. Board of Education, 374 U.S. 483 (1954).
(Indianapolis, IN: Bobbs-Merrill, 1960), p. 18. 18. McGowan v. Maryland, 366 U.S. 420 (1961).
9. Wayne R. LaFave, Criminal Law, 3rd ed. (St. Paul, MN: 19. Westbrook v. Alaska, 2003 WL 1732398 (Alaska App.
West, 2000), p. 8. 2003).
10. Fla. Stat. §§ 796.045. 20. Strauder v. West Virginia, 100 U.S. 303 (1879).
11. LaFave, Criminal Law, pp. 70–71. 21. McLaughlin v. Florida, 379 U.S. 184 (1964).
12. Commonwealth v. Mochan, 110 A.2d 788 (Pa. Super. Ct. 22. Loving v. Virginia, 388 U.S. 1 (1967).
1955). 23. United States v. Virginia, 518 U.S. 515 (1996).
13. Lawrence M. Friedman, Crime and Punishment in 24. Michael M. v. Superior Court, 450 U.S. 464 (1981).
American History (New York, NY: Basic Books, 1994), pp. 25. United States v. Windsor, 570 U.S. __ (2013).
64–65. 26. Obergefell v. Hodges, 576 U.S. __ (2015).
14. Fla. Stat. § §775.01–775.02. 27. Erwin Chemerinsky, Constitutional Law, Principles and
15. Cal. Penal Code § 2-24-6. Politics, 2nd ed. (New York, NY: Aspen, 2002), p. 472.
16. Utah Code § 76-105. 28. Barron v. Mayor & City Council of Baltimore, 32 U.S. [7
17. LaFave, Criminal Law, pp. 72–73. Pet.] 243, 247, 250 (1833).
18. Keeler v. Superior Court, 470 P.2d 617 (Cal. 1970). 29. Scott v. Sandford, 60 U.S. [19 How.] 393 (1857).
19. Kovacs v. Cooper, 336 U.S. 77 (1949). 30. Gitlow v. New York, 268 U.S. 652 (1925).
20. Village of Belle Terre v. Boraas, 416 U.S. 1 (1974). 31. Thomas I. Emerson, The System of Freedom of Expression
21. Joshua Dressler, Understanding Criminal Law, 3rd ed. (New York, NY: Vintage Books, 1970), pp. 6–7.
(New York, NY: Lexis, 2001), p. 31. 32. Terminiello v. Chicago, 337 U.S. 1 (1949).
22. Arizona v. United States, 567 U.S. ___ (2012). 33. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
23. United States v. Lopez, 514 U.S. 549 (1995). 34. Feiner v. New York, 340 U.S. 315 (1951).
24. United States v. Jones, 529 U.S. 848 (2000). 35. Terminiello, 337 U.S. at 1.
25. Oregon v. Gonzalez, 546 U.S. 243 (2006). 36. Brandenburg v. Ohio, 395 U.S. 444 (1969).
26. Texas v. Johnson, 491 U.S. 1 (1989). 37. Watts v. United States, 394 U.S. 705 (1969).
38. Elonis v. United States, 575 U.S. ___ (2015).
39. Jacobellis v. Ohio, 378 U.S. 184 (1974).
CHAPTER 2 40. Miller v. California, 413 U.S. 15 (1973).
41. New York v. Ferber, 458 U.S. 747 (1982).
1. Joshua Dressler, Understanding Criminal Law, 3rd ed. 42. New York Times v. Sullivan, 376 U.S. 254 (1964).
(New York, NY: Lexis, 2001), p. 39. 43. Gertz v. Welch, 418 U.S. 323 (1974).
2. United States v. Lovett, 328 U.S. 303 (1946). 44. West Virginia v. Barnette, 319 U.S. 624 (1943).
3. United States v. Brown, 381 U.S. 437 (1965). 45. United States v. Stevens, 559 U.S. 460 (2010).
373
46. Broadrick v. Oklahoma, 413 U.S. 601 (1973).

47. New York v. Ferber, 458 U.S. at 747.
CHAPTER 3
48. Tinker v. Des Moines Independent Community School
District, 393 U.S. 503 (1969). 1. Cal. Penal Code § 20 (1999).
49. Wooley v. Maynard, 430 U.S. 705 (1977). 2. Ind. Code § 35-41-2-1 (1993).
50. Texas v. Johnson, 491 U.S. 397 (1989). 3. McClain v. State, 678 N.E.2d 104 (Ind. 1997).
51. United States v. Eichman, 496 U.S. 310 (1990). 4. Joshua Dressler, Understanding Criminal Law, 3rd ed.
52. R.A.V. v. St. Paul, 505 U.S. 377 (1992). (New York, NY: Lexis, 2001), p. 208.
53. Wisconsin v. Mitchell, 508 U.S. 476 (1993). 5. Wayne R. LaFave, Criminal Law, 3rd ed. (St. Paul, MN:
54. Virginia v. Black, 538 U.S. 343 (2003). West, 2000), p. 208.
55. DeJonge v. Oregon, 299 U.S. 353 (1937). 6. State v. Tippetts, 45 P.3d 455 (Ore. 2011).
56. Grayned, 408 U.S. at 104. 7. People v. Decina, 138 N.E. 799 (N.Y. 1956).
57. Employment Division v. Smith, 494 U.S. 872 (1990). 8. A. Roger Ekirch, “Violence in the Land of Sleep,” The
58. Reynolds v. United States, 98 U.S. [8 Otto] 145 (1878). New York Times (March 23, 2010), http://opinionator.
59. Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 blogs.nytimes.com/2010/03/23/violence-in-the-land-
U.S. 520 (1993). of-sleep/
60. Walker v. Superior Court, 763 P.2d 852 (Cal. 1988). 9. Wheeler v. Goodman, 306 F. Supp. 58 (W.D.N.C. 1969).
61. Holt v. Hobbs, 574 U.S. ___ (2015). 10. Robinson v. California, 370 U.S. 600 (1962).
62. Samuel D. Warren and Louis D. Brandeis, “The Right 11. Powell v. Texas, 392 U.S. 514 (1968).
to Privacy,” Harvard Law Review 4, no. 5 (1890): 1–23. 12. People v. Beardsley, 113 N.W. 1128, 1132 (Mich. 1907).
63. Pavesich v. New England Life Ins. Co., 50 S.E. 68 (Ga. 1905). 13. Buch v. Amory Manufacturing, 44 A. 809, 810 (N.H.
64. Griswold v. Connecticut, 381 U.S. 479 (1965). 1897).
65. Arthur R. Miller, The Assault on Privacy (Ann Arbor: 14. Kuntz v. Montana Thirteenth Judicial District, 995 P.2d
University of Michigan Press, 1971). 951 (Mont. 1999).
66. Olmstead v. United States, 277 U.S. 438 (1928). 15. Dressler, Understanding Criminal Law, pp. 96–99.
67. Bowers v. Hardwick, 478 U.S. 186 (1986). 16. Hughes v. State, 719 S.W.2d 560 (Tex. Ct. App. 1986).
68. Lawrence v. Texas, 539 U.S. 558 (2003). 17. State v. Mally, 366 P.2d 868 (Mont. 1961).
69. Katz v. United States, 389 U.S. 347 (1967). 18. Craig v. State, 155 A.2d 684 (Md. 1959).
70. United States v. Jones, 565 U.S. ___ (2012). 19. Commonwealth v. Pestinikas, 617 A.2d 1339 (Pa. Super.
71. Riley v. California, 573 U.S. ___ (2014). 1992).
72. Kyllo v. United States, 533 U.S. 27 (2001). 20. People v. Oliver, 285 Cal. Rptr. 138 (Cal. App. 1989).
73. United States v. Miller, 307 U.S. 174 (1939). 21. People v. Burton, 788 N.E.2d 220 (Ill. App. 2003).
74. District of Columbia v. Heller, 554 U.S. 570 (2008). 22. Arnold H. Loewy, Criminal Law in a Nutshell, 4th ed.
75. McDonald v. Chicago, 561 U.S. 742 (2010). (St. Paul, MN: West, 2003), pp. 235–236.
76. Moore v. Madigan, 702 F.3d 933 (7th Cir. 2013). 23. Dressler, Understanding Criminal Law, pp. 92–93.
77. Caetano v. Massachusetts, 577 U.S. ___ (2015). 24. LaFave, Criminal Law, pp. 211–213.
78. Wayne R. LaFave, Criminal Law, 3rd ed. (St. Paul, MN: 25. State v. Cashen, 666 N.W.2d 566 (Iowa 2003).
West), p. 189. 26. United States v. Jewell, 534 F.2d 697 (9th Cir. 1976).
79. Trop v. Dulles, 356 U.S. 86 (1958). 27. Morissette v. United States, 342 U.S. 246 (1952).
80. In re Kemmler, 136 U.S. 36 (1890). 28. Oliver Wendell Holmes Jr., The Common Law, ed. Mark
81. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947). Howe (Boston, MA: Little Brown, 1963), p. 7.
82. Baze v. Rees, 553 U.S. 35 (2008). 29. Dennis v. United States, 341 U.S. 494 (1951).
83. Brown v. Plata, 563 U.S. 493 (2011). 30. United States v. U.S. Gypsum Company, 438 U.S. 422
84. Furman v. Georgia, 408 U.S. 238 (1973). (1978).
85. Gregg v. Georgia, 428 U.S. 153 (1976). 31. People v. Conley, 543 N.E.2d 138 (Ill. App. 1989).
86. Ring v. United States, 536 U.S. 584 (2002). 32. People v. Nowack, 614 N.W.2d 78 (Mich. 2000).
87. Hurst v. Florida, 577 U.S. ___ (2016). 33. Alvarado v. State, 704 S.W.2d 36 (Tex. Crim. App. 1986).
88. Coker v. Georgia, 433 U.S. 584 (1977). 34. United States v. Bailey, 444 U.S. 394 (1980).
89. Kennedy v. Louisiana, 554 U.S. 407 (2008). 35. Dressler, Understanding Criminal Law, p. 137.
90. Atkins v. Virginia, 536 U.S. 34 (2000). 36. State v. Sanborn, 2012 N.J. Super. Unpub. LEXIS 993 No.
91. Enmund v. Florida, 458 U.S. 782 (1982). A-1418-10T1 (Superior Ct. 2012).
92. Thompson v. Oklahoma, 487 U.S. 815 (1988). 37. State v. Fuelling, 145 S.W.3d 464 (Mo. App. 2004).
93. Roper v. Simmons, 543 U.S. 551 (2005). 38. Durkovitz v. State, 771 S.W.2d 12 (Tex. App. 1989).
94. Graham v. Florida, 560 U.S. 48 (2010). 39. State v. Williams, 235 S.W.2nd 745 (Tx. Ct. Crim.
95. Miller v. Alabama, 567 U.S. ___ (2012). App. 2007).
96. Montgomery v. Louisiana, 577 U.S. ___ (2016). 40. State v. Jones, 151 S.W.3d 494 (Tenn. 2004).
97. Lockyer v. Andrade, 538 U.S. 63 (2003). 41. People v. Stanfield, 44 A.D. 780 (NY. App. 1974).
98. Ewing v. California, 538 U.S. 11 (2003). 42. State v. Harmon, 516 A.2d 1047 (N.J. 1986).
99. Robinson v. California, 370 U.S. 660 (1962). 43. State v. Robles, 623 P.2d 1245 (Ariz. App. 1981).
100. Erica Goode, “Solitary Confinement: Punished for 44. Regina v. Saunders & Archer, (1575) 75 Eng. Rep. 706.
Life,” The New York Times (August 3, 2015), http:// 45. People v. Scott, 927 P.2d 288 (Cal. 1996).
www.nytimes.com/2015/08/04/health/solitary- 46. Morissette v. United States, 342 U.S. at 246.
confinement-mental-illness.html?_r=0 47. Morissette, 342 U.S. at 246.
Notes 375
48. Staples v. United States, 511 U.S. 600 (1964). 13. Commonwealth v. Gilliam, 417 A.2d 1203 (Pa. Super.
49. People v. Janes, 836 N.W.2d 883 (Mich. App. 2013). 1980).
50. Cooper v. People, 973 P.2d 1234 (Colo. 1999). 14. Cal. Penal Code § 466.
51. Cal. Penal Code § 20 (1999). 15. Hall, General Principles of Criminal Law, p. 595.
52. United States v. Main, 113 F.3d 1046 (9th Cir. 1997). 16. Attorney General v. Sillem, (1863) 159 Eng. Rep. 178.
53. Dressler, Understanding Criminal Law, p. 191. 17. Colo. Rev. Stat. § 18-1-201.
54. People v. Armitage, 239 Cal. Rptr. 515 (Cal. App. 1987). 18. State v. Damms, 100 N.W.2d 592 (Wis. 1960).
55. People v. Schmies, 51 Cal. Rptr.2d 185 (Cal. App. 1996). 19. State v. Glass, 87 P.3d 302 (Idaho Ct. App. 2003).
56. People v. Saavedra-Rodriguez, 971 P.2d 223 (Colo. 1998). 20. People v. Dlugash, 363 N.E.2d 1155 (N.Y. 1977).
21. People v. Staples, 85 Cal. Rptr. 589 (Cal. App. 1970).
22. Wayne R. LaFave, Criminal Law, 3rd ed. (St. Paul, MN:
CHAPTER 4 West, 2000), pp. 561–564.
23. American Law Institute, Model Penal Code and
Commentaries, pp. 358–362.
1. Rollin M. Perkins and Ronald N. Boyce, Criminal Law,
24. Commonwealth v. Bursell, 678 N.E.2d 143 (Mass. 1997).
3rd ed. (Mineola, NY: Foundation Press, 1982), pp.
25. State v. Otto, 629 P.2d 646 (Idaho 1981).
730–732.
26. State v. Butler, 35 P. 1093 (Wash. 1894).
2. Joshua Dressler, Understanding Criminal Law, 3rd ed.
27. People v. Smith, 806 N.E.2d 1262 (Ill. App. 2004).
(New York, NY: Lexis, 2000), p. 461.
28. State v. Cotton, 790 P.2d 1050 (N.M. 1990).
3. Wilcox v. Jeffery, (1951) 1 All E.R. 464.
29. Fla. Stat. § 777.04(3).
4. Brown v. Mississippi, 864 So. 2d 1009 (Miss. Ct. App.
30. Ill. Comp. Stat. § 8-2.
2004).
31. LaFave, Criminal Law, pp. 612–614.
5. State v. Mendez, 2003 Tenn. Crim. App. LEXIS 790.
32. Krulewitch v. United States, 336 U.S. 440 (1949).
6. State v. Phillips, 76 S.W.3d 1 (Tenn. Crim. App. 2001).
33. Commonwealth v. Azim, 459 A.2d 1244 (Pa. Super.
7. State v. Anderson, 702 So.2d 2 (La. 1997).
1983).
8. State v. Walden, 293 S.E.2d 780 (N.C. 1982).
34. United States v. Brown, 776 F.2d 397 (2nd Cir. 1985).
9. United States v. Peoni, 100 F.2d 401 (2nd Cir. 1938).
35. Hyde v. United States, 225 U.S. 347 (1912).
10. State v. Barker, 442 S.W.3d 165 (Mo. App. 2014).
36. Yates v. United States, 354 U.S. 298 (1957).
11. United States v. Fountain, 768 F.2d 790 (7th Cir. 1985).
37. Cline v. State, 319 S.W.2d 227 (Tenn. 1958).
12. State v. Linscott, 520 A.2d 1067 (Me. 1987).
38. Rollin M. Perkins and Ronald N. Boyce, Criminal Law,
13. Wilson-Bey v. United States, 903 A.2d 818 (D.C. 2006)
3rd ed. (Mineola, NY: Foundation Press, 1982), pp.
(en banc).
685–687.
14. Browne v. People, 55 V.I. 931 (2011).
39. LaFave, Criminal Law, pp. 592–593.
15. State v. Thomas, 556 N.E.2d 721 (Ill. App. 1998).
40. Direct Sales Co. v. United States, 319 U.S. 703 (1943).
16. State v. Jordan, 590 S.E.2d 424 (N.C. App. 2004).
41. United States v. Falcone, 311 U.S. 205 (1940).
17. Fla. Stat. § 777.03(1)(b).
42. People v. Lauria, 59 Cal. Rptr. 628 (Cal. App. 1967).
18. Richard G. Singer and John Q. La Fond, Criminal Law
43. Pinkerton v. United States, 328 U.S. 640 (1946).
Examples and Explanations, 2nd ed. (New York, NY:
Aspen, 2001), p. 108.
Commentaries, pp. 305–307.
19. People v. Travers, 52 Cal. App. 3d 111 (1975).
45. People v. McGee, 399 N.E.2d 1177 (N.Y. 1979).
20. Wayne R. LaFave, Criminal Law, 3rd ed. (St. Paul, MN:
46. Morrison v. California, 291 U.S. 82 (1934).
West, 2000), p. 264.
47. Dressler, Understanding Criminal Law, pp. 439–440.
Commentaries, p. 399.
CHAPTER 5 49. State v. Pacheco, 882 P.2d 183 (Wash. 1994).
50. Richard G. Singer and John Q. La Fond, Criminal Law
1. George Fletcher, Rethinking Criminal Law (New York, Examples and Explanations, 2nd ed. (New York, NY:
NY: Oxford University Press, 2000), pp. 131–132. Aspen, 2001), p. 287.
2. Joshua Dressler, Understanding Criminal Law, 3rd ed. 51. United States v. Bruno, 105 F.2d 921 (2d Cir.), rev’d on
(New York, NY: Lexis, 2001), pp. 373–374. other grounds, 308 U.S. 287 (1939).
3. People v. Miller, 42 P.2d 308 (Cal. 1935). 52. Kotteakos v. United States, 328 U.S. 750 (1946).
4. Jerome Hall, General Principles of Criminal Law, 2nd ed. 53. Rex v. Jones, 110 Eng. Rep. 485 (1832).
(Indianapolis, IN: Bobbs-Merrill, 1960), p. 559. 54. State v. Burnham, 15 N.H. 296 (1844).
5. Hall, General Principles of Criminal Law, p. 560. 55. People v. Fisher, 14 Wend. 2 (N.Y. 1835).
6. Rex v. Scofield, (1784) Caldecott 397. 56. Shaw v. Director of Public Prosecutions, A.C. 220 (1962).
7. Rex v. Higgins, (1801) 2 East 5. 57. Musser v. Utah, 333 U.S. 95 (1948).
8. Dressler, Understanding Criminal Law, p. 375. 58. 18 U.S.C. § 371.
9. Dressler, Understanding Criminal Law, pp. 384–385. 59. Pinkerton v. United States, 328 U.S. at 640.
10. People v. Gentry, 510 N.E.2d 963 (Ill. App. 1987). 60. Dressler, Understanding Criminal Law, pp. 455–456.
11. American Law Institute, Model Penal Code and 61. Gebardi v. United States, 287 U.S. 112 (1932).
Commentaries, vol. 11, pt. 1 (Philadelphia, PA: 62. Harrison v. United States, 7 F.2d 259 (2nd Cir. 1925).
American Law Institute, 1985), p. 305. 63. LaFave, Criminal Law, pp. 569–573.
12. People v. Rizzo, 158 N.E.2d 888 (N.Y. 1927). 64. 18 U.S.C. §§ 1961–1963.
CHAPTER 6 46.
47.
Hall, General Principles of Criminal Law, p. 438.
Lynch v. D.P.P., [1975] A.C. 417.
48. People v. Unger, 338 N.E.2d 442 (Ill. App. Ct. 1975).
1. In re Winship, 397 U.S. 358 (1970). 49. United States v. Moreno, 102 F.3d 994 (9th Cir. 1994).
2. Jackson v. Virginia, 443 U.S. 307 (1979). 50. Commonwealth v. Appleby, 402 N.E.2d 1051 (Mass.
3. Commonwealth v. Webster, 59 Mass. 295 (1850). 1980).
4. Wardius v. Oregon, 412 U.S. 470 (1973). 51. State v. Brown, 364 A.2d 27 (N.J. Super. Ct. Law Div.
5. Joshua Dressler, Understanding Criminal Law, 3rd ed. 1976).
(New York, NY: Lexis, 2001), pp. 63–65. 52. People v. Lenti, 253 N.Y.S.2d 9 (N.Y. Co. Ct. 1964).
6. Wayne R. LaFave, Criminal Law (St. Paul, MN: West, 53. LaFave, Criminal Law, pp. 432–433.
2000), p. 54. 54. LaFave, Criminal Law, pp. 441–443.
7. Richard G. Singer and John Q. La Fond, Criminal Law 55. LaFave, Criminal Law, pp. 442–443.
Examples and Explanations, 2nd ed. (New York, NY: 56. Singer and La Fond, Criminal Law Examples and
Aspen, 2001), p. 374. Explanations, p. 83.
8. George P. Fletcher, Rethinking Criminal Law (New York, 57. Lambert v. California, 355 U.S. 335 (1957).
NY: Oxford University Press, 2000), p. 759. 58. Cheek v. United States, 498 U.S. 192 (1991).
9. Dressler, Understanding Criminal Law, p. 205. 59. Cox v. Louisiana, 379 U.S. 536 (1965).
10. Dressler, Understanding Criminal Law, pp. 206–209. 60. LaFave, Principles of Criminal Law, pp. 433–434.
11. Singer and La Fond, Criminal Law Examples and 61. LaFave, Principles of Criminal Law, p. 434.
Explanations, pp. 386–388. 62. William Blackstone, Commentaries on the Laws of
12. Rollin M. Perkins and Ronald N. Boyce, Criminal Law, England, vol. 4 (Chicago, IL: Chicago University Press,
3rd ed. (Mineola, NY: Foundation Press, 1982), pp. 1979), pp. 183–187.
950–951. 63. Brown v. United States, 256 U.S. 335 (1921).
13. Jerome Hall, General Principles of Criminal Law, 2nd ed. 64. Vigil v. People, 353 P.2d 82 (Colo. 1960).
(Indianapolis, IN: Bobbs-Merrill, 1960), p. 475. 65. Dressler, Understanding Criminal Law, pp. 222–223.
14. Perkins and Boyce, Criminal Law, pp. 958–959. 66. Harshaw v. State, 39 S.W.3d 753 (Ark. 2001).
15. Arnold H. Loewy, Criminal Law in a Nutshell, 4th ed. 67. People v. Goetz, 497 N.E.2d 41 (N.Y. 1986).
(St. Paul, MN: West, 2003), p. 165. 68. State v. Schroeder, 261 N.W. 2d 759 (Neb. 1978).
16. State v. Crenshaw, 659 P.2d 488 (Wn. 1983). 69. State v. Norman, 366 S.E.2d 586 (N.C. Ct. App. 1988).
17. Dressler, Understanding Criminal Law, p. 349. 70. State v. Norman, 378 S.E.2d 8 (N.C. 1989).
18. Ibid. 71. State v. Richardson, 525 N.W.2d 378 (Wis. Ct. App.
19. United States v. Lyons, 731 F.2d 243 (5th Cir. 1984). 1994).
20. State v. Pike, 49 N.H. 399 (1869). 72. Cal. Evid. Code § 1107 (a).
21. Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954). 73. Mo. Rev. Stat. § 563.33.
22. United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972). 74. State v. Jones, 850 P.2d 495 (Wash. 1993).
23. 18 U.S.C. § 17(b). 75. Wis. Stat. § 939.48.
24. United States v. Duran, 96 F.3d 1495 (D.C. Cir. 1996). 76. State v. DeJesus, 481 A.2d 127 (Conn. 1984).
25. LaFave, Criminal Law, pp. 374–377. 77. Dressler, Understanding Criminal Law, p. 227.
26. United States v. Amos, 803 F.2d 419 (8th Cir. 1986); 78. Dressler, Understanding Criminal Law, pp. 228–229.
United States v. Freeman, 804 F.2d 1574 (11th Cir. 1986). 79. State v. Gartland, 694 A.2d 564 (N.J. 1997).
27. Dressler, Understanding Criminal Law, pp. 361–371. 80. State v. Harden, 69 S.E.2d 628 (W.Va. 2009).
28. Cal. Penal Code §§ 25–29. 81. Fletcher, Rethinking Criminal Law, p. 869.
29. Montana v. Egelhoff, 518 U.S. 37 (1996). 82. People v. Eatman, 91 N.E.2d 387 (Ill. 1957).
30. People v. Hood, 1 Cal.3d 444 (Cal. 1969). 83. Dressler, Understanding Criminal Law,
31. Markus D. Dubber, Criminal Law: Model Penal Code pp. 263–265.
(New York, NY: Foundation Press, 2002), pp. 84–90. 84. Colo. Rev. Stat. § 18-1-704.5.
32. Jerome Hall, General Principles of Criminal Law, 85. State v. Anderson, 972 P.2d 32 (Okla. Crim. App. 1998).
p. 545. 86. Dressler, Understanding Criminal Law, p. 263.
33. State v. Cameron, 514 A.2d 1302 (N.J. 1986). 87. Tennessee v. Garner, 471 U.S. 1 (1985).
34. Montana v. Egelhoff, 518 U.S. at 44. 88. Scott v. Harris, 550 U.S. 374 (2007); Plumhoff v. Rickard,
35. City of Minneapolis v. Altimus, 238 N.W.2d 851 (Minn. 572 U.S. ___ (2012); Mullenix v. Luna, 577 U.S. ___
1976). (2015).
36. Wis. Stat. Ann. §939.42. 89. John Bad Elk v. United States, 177 U.S. 529 (1900).
37. Brazill v. State, 845 So.2d 282 (Fla. Dist. Ct. App. 2003). 90. United States v. Di Re, 332 U.S. 581 (1948).
38. Tate v. State, 967 So.2d 214 (Fla. Dist. Ct. App. 4th Dist. 91. State v. King, 149 So.2d 482 (Miss. 1963).
2007). 92. Loewy, Criminal Law in a Nutshell, pp. 82–83.
39. Perkins and Boyce, Criminal Law, pp. 936–938. 93. Commonwealth v. French, 611 A.2d 175 (Pa. 1992).
40. LaFave, Criminal Law, pp. 426–429. 94. Sorrells v. United States, 387 U.S. 435 (1932).
41. LaFave, Criminal Law, pp. 429–430. 95. Sherman v. United States, 356 U.S. 369 (1958).
42. Kent v. United States, 383 U.S. 541 (1966). 96. Sherman v. United States, 356 U.S. at 369.
43. LaFave, Criminal Law, pp. 476–479. 97. LaFave, Criminal Law, p. 464.
44. State v. Salin, No. 0302016999, 2003 Del. Ct. C.P. 98. United States v. Fusko, 869 F.2d 1048 (7th Cir. 1989).
45. Dressler, Understanding Criminal Law, p. 287. 99. LaFave, Criminal Law, p. 458.
Notes 377
100. Sherman v. United States, 456 U.S. at 382–383. 25. Commonwealth v. Malone, 47 A.2d at 445.
101. Mathews v. United States, 485 U.S. 58 (1988). 26. Banks v. State, 211 S.W. 217 (Tex. 1919).
102. Alan Dershowitz, Abuse Excuse and Other Cop-Outs, 27. Alston v. State, 643 A.2d at 468.
Sob Stories, and Erosions of Responsibility (Boston, MA: 28. State v. Davidson, 987 P.2d 335 (Kan. 1999).
Little, Brown, 1994), p. 3. 29. People v. Stamp, 82 Cal. Rptr. 598 (Cal. Ct. App. 1969).
103. Fletcher, Rethinking Criminal Law, pp. 801–802. 30. People v. Fuller, 150 Cal. Rptr. 515 (Cal. Ct. App. 1978).
104. Millard v. State, 261 A.2d 227 (Md. Ct. Spec. App. 31. Regina v. Serne, 16 Cox C.C. 311 (1887).
1970). 32. Enmund v. Florida, 458 U.S. 782 (1982).
105. Dershowitz, Abuse Excuse, pp. 54–55. 33. Va. Code Ann. § 18.2-32.
106. People v. Molina, 202 Cal. App. 3d 1168 (Cal. Ct. App. 34. Mo. Rev. Stat. § 565.021.
1988). 35. People v. Burroughs, 678 P.2d 894 (Cal. 1984).
107. Commonwealth v. Garabedian, 503 N.E.2d 1290 (Mass. 36. Allen v. State, 690 So.2d 1332 (Fla. 2d Dist. Ct. App.
1987). 1998).
108. State v. Phipps, 883 S.W.2d 138 (Tenn. Ct. App. 1994). 37. Lester v. State, 737 So.2d 1149 (Fla.2d. Dist. Ct. App.
109. Deborah Goldklang, “Post Traumatic Stress 1999).
Disorder and Black Rage: Clinical Validity, Criminal 38. Parker v. State, 570 So.2d 1048 (Fla. 1st Dist. Ct. App.
Responsibility,” Virginia Journal of Social Policy & Law 1990).
5 (1997): 213–243. 39. Campbell v. State, 444 A.2d 1034 (Md. 1982).
110. Wally Owens, “State v. Osby, The Urban Survival 40. Commonwealth v. Campbell, 87 Mass. (7 Allen) 541
Defense,” American Journal of Criminal Law 22 (1995): (1963).
21. 41. Kinchion v. State, 81 P.3d 681 (Okla. Crim. App. 2003).
111. Patricia J. Falk, “Novel Theories of Criminal Defense 42. Oliver Wendell Holmes Jr., The Common Law (New
Based Upon the Toxicity of the Social Environment: York, NY: Dover Press, 1991), pp. 57–58.
Urban Psychosis, Television Intoxication, and Black 43. State v. Gounagias, 153 P. 9 (Wash. 1901).
Rage,” North Carolina Law Review 74 (1996): 731. 44. Keeler v. Superior Court, 470 P.2d 617 (Cal. 1970).
112. United States v. Alexander, 471 F.2d 923 (D.C. Cir. 45. Cal. Penal Code § 187(a).
1972). 46. State v. Lamy, 158 N.H. 511 (2009).
113. State v. Jerrett, 307 S.E.2d 339 (N.C. 1983). 47. Commonwealth v. Cass, 467 N.E.2d 1324 (Mass. 1984).
114. Doriane Lambelet Coleman, “Individualizing Justice 48. Roe v. Wade, 410 U.S. 113 (1973).
Through Multiculturalism: The Liberals’ Dilemma,” 49. People v. Davis, 872 P.2d 591 (Cal. 1994).
Columbia Law Review 96 (1996): 1093, 1150. 50. 18 U.S.C. § 1841; 10 U.S.C. § 919a.
115. State v. Kargar, 679 A.2d 81 (Me. 1996). 51. Kilmon v. State, 905 A.2d 306 (Md. 2006).
52. Whitner v. South Carolina, 492 S.E.2d 777 (1995).
53. State v. Fierro, 603 P.2d 74 (Ariz. 1979).
54. State v. Rogers, 992 S.W.3d 393 (Tenn. 1999), aff’d 532
CHAPTER 7 U.S. 451 (2001).
55. Commonwealth v. Casanova, 708 N.E.2d 86 (Mass.
1. Gregg v. Georgia, 428 U.S. 153 (1976). 1999).
2. Coker v. Georgia, 433 U.S. 584 (1977). 56. Cal. Penal Code § 194.
3. George P. Fletcher, Rethinking Criminal Law (New York, 57. Wayne R. LaFave, Criminal Law, 3rd ed. (St. Paul, MN:
NY: Oxford University Press, 2000), p. 236. West, 2000), p. 18.
4. Nev. Rev. Stat. § 200.020.
5. Kans. Stat. §21-3405.
6. 18 U.S.C. §§ 1114, 1116.
7. N.M. Stat. §30-2-1. CHAPTER 8
8. State v. Myers, 81 A.2d 710 (N.J. 1951).
9. Utah Code Ann. § 76-5-291. 1. Ga. Code Ann. § 16-5-22.
10. State v. Schrader, 302 S.E.2d 70 (W.Va. 1982). 2. American Law Institute, Model Penal Code and
11. State v. Bingham, 719 P.2d 109 (Wash. 1986). Commentaries, § 211.1(1)(a)(b).
12. State v. Forrest, 362 S.E.2d 252 (N.C. 1987). 3. 720 Ill. Comp. Stat. 5/12-1.
13. Va. Code Ann. § 18.2-31. 4. Ga. Code Ann. § 16-5-23.1.
14. Fla. Stat. § 921.141. 5. Cal. Penal Code § 242.
15. Owen v. State, 862 So.2d 687 (Fla. 2000). 6. Minn. Stat. § 609.226.
16. Wash. Rev. Code § 9A.32.050. 7. State v. Sherer, 60 P.3d 1010 (Mont. 2002).
17. Idaho Code Ann. § 18-4003. 8. State v. Humphries, 586 P.2d 130 (Wash. Ct. App. 1978).
18. La. Rev. Stat. Ann. § 14.30.1. 9. Ga. Code Ann. § 16-5-23.1.
19. Ark. Code Ann. § 5-10-103. 10. Ga. Code Ann. § 16-5-24.
20. Midgett v. State, 729 S.W.2d 410 (Ark. 1987). 11. 720 Ill. Comp. Stat. 5/12-4.
21. Alston v. State, 643 A.2d 468 (Md. Ct. Spec. App. 12. S.D. Codified Laws § 22-18-1-3.
1994). 13. Fla. Stat. 784.045(2)(b).
22. Commonwealth v. Malone, 47 A.2d 445 (Pa. 1946). 14. Minn. Stat. § 609.228.
23. Cal. Penal Code § 188. 15. Cal. Penal Code §§ 243.2, 243.25, 243.3, 243.65.
24. State v. Doub, 95 P.3d 116 (Kan. App. 2004). 16. 720 Ill. Comp. Stat. 5/12-21.
17. United States v. Mullett, 767 F.3d 585 (2014). 61. People v. Banks, 552 N.E.2d 131 (N.Y. 1996).
18. Mass. Gen. Laws ch. 265, § 15A. 62. 13 V.S.A §§3252, 3253.
19. State v. Basting, 572 N.W.2d 281 (Minn. 1997). 63. Ind. Code Ann. § 35-42-4-1.
20. State v. Davis, 540 N.W.2d 88 (Minn. App. 1995). 64. Stogner v. California, 539 U.S. 607 (2003).
21. State v. Mings, 289 N.W.2d 497 (Minn. 1980). 65. Smith v. Doe, 538 U.S. 84 (2003).
22. State v. Coauette, 601 N.W.2d 443 (Minn. App. 1999). 66. In the Interest of J.B., et al., No. J-44A-G-2014
23. Cal. Penal Code § 203. (Pa. Dec. 29, 2014).
24. Cal. Penal Code § 206. 67. American Law Institute, Model Penal Code and
25. Ga. Code Ann. § 16-5-20. Commentaries, p. 346.
26. Cal. Penal Code § 240. 68. Cal. Penal Code § 263.
27. 720 Ill. Comp. Stat. 5/12-1. 69. State v. Kidwell, 556 P.2d 20 (Ariz. Ct. App. 1976).
28. Cal. Penal Code § 241.3. 70. LaFave, Criminal Law, pp. 762–764.
29. Ohio Rev. Code Ann. § 2903.22. 71. Commonwealth v. Berkowitz, 609 A.2d 1338 (Pa. Super.
30. Wayne R. LaFave, Criminal Law, 3rd ed. (St. Paul, MN: Ct. 1992), aff’d, 641 A.2d 1161 (Pa. 1994).
West, 2000), pp. 376–377. 72. Cal. Penal Code § 261.
31. Wilson v. State, 53 Ga. 205 (1874). 73. Mich. Comp. Laws § 750.520(b)(1)(e).
32. Ga. Code Ann. § 16-5-21. 74. Commonwealth v. Mlinarich, 542 A.2d 1335 (Pa. 1988).
33. 720 Ill. Comp. Stat. 5/12-2. 75. In the Interest of M.T.S., 609 A.2d 1266 (N.J. 1992).
34. 720 Ill. Comp. Stat. 5/12-2-5. 76. Joshua Dressler, Understanding Criminal Law, 3rd ed.
35. S.D. Codified Laws § 22-18-1. (New York, NY: Lexis, 2001), p. 533.
36. Centers for Disease Control and Prevention, National 77. Cal. Penal Code § 261.
Intimate Partner and Sexual Violence Survey (2010), 78. Texas Penal Code § 22.011.
http://www.cdc.gov/ViolencePrevention/pdf/NISVS_ 79. Commonwealth v. Mlinarich, 542 A.2d at 1335.
FactSheet-a.pdf 80. People v. Mayberry, 542 P.2d 1337 (Cal. 1997).
37. 720 ILCS 5/12-7.3. 81. Tyson v. State, 619 N.E.2d 276 (Ind. Ct. App. 1993).
38. 720 ILCS 5/12-7.5. 82. LaFave, Criminal Law, p. 778.
39. LaFave, Criminal Law, p. 787. 83. LaFave, Criminal Law, pp. 778–779.
40. Coker v. Georgia, 433 U.S. 584 (1977). 84. Ill. Comp. Stat. 5/12-14 (a)(2).
41. Kennedy v. Louisiana, 433 U.S. 407 (2008). 85. People v. John Z., 60 P.3d 183 (Cal. 2003).
42. State v. Smith, 436 A.2d 38 (N.J. 1981). 86. People v. Abbott, 19 Wend. 192 (N.Y. 1838).
43. National Center for Victims of Crime, Acquaintance 87. State v. Colbath, 540 A.2d 1212 (N.H. 1988).
Rape Fact Sheet (1998), http://www.wistv.com/Global/ 88. People v. Wilhelm, 476 N.W.2d 753 (Mich. Ct. App.
story.asp?s=273237&clienttype=printable 1991).
44. Susan Estrich, Real Rape (Cambridge, MA: Harvard 89. State v. Marks, 647 P.2d 1292 (Kan. 1982).
University Press, 1987). 90. State v. Obeta, 796 N.W.2d 282 (Minn. 2011).
45. Roni Caryn Rabin, “Men Struggle for Rape Awareness,” 91. People v. Shreck, 22 P.3d 68 (Colo. 2001).
The New York Times (January 23, 2012), http://www. 92. State v. Obeta, 796 N.W.2d at 282.
nytimes.com/2012/01/24/health/as-victims-men- 93. Henson v. Indiana, 535 N.E.2d 1189 (Ind. 1989).
struggle-for-rape-awareness.html?pagewanted=all&_r=0 94. Cal. Penal Code §§ 243.4(e), 243.4(e)(6)(J).
46. LaFave, Criminal Law, p. 762. 95. Cal. Penal Code § 273.5.
47. State of New Jersey in the Interest of M.T.S., 609 A.2d 1266 96. Ind. Code §§ 34-26-5-1, 34-6-2-44.8.
(N.J. 1992). 97. 18 U.S.C. § 116.
48. William Blackstone, Commentaries on the Laws of 98. People v. Chessman, 238 P.2d 1001 (Cal. 1951).
England, vol. 4 (Chicago: University of Chicago Press, 99. People v. Daniels, 71 Cal.2d 1119 (1969).
1979), p. 215. 100. Faison v. State, 399 So. 2d 19 (Dist. Ct. Fla. 1981).
49. LaFave, Criminal Law, p. 755. 101. People v. Aguilar, 16 Cal. Rptr.3d. 231 (Cal. Ct. App.
50. Blackstone, Commentaries on the Laws of England, 2004).
p. 213. 102. People v. Majors, 92 P.3d 360 (Cal. 2004).
51. State v. Rusk, 434 A.2d 720 (Md. 1981). 103. 720 ILCS 5/10-5.
52. Brown v. State, 106 N.W. 536 (Wis. 1906). 104. People v. Hampton, 212 Ill. App. 10656U.
53. State v. Schuster, 282 S.W.3d 553 (Mo. 1955). 105. Idaho Code Ann. §§ 18-2901, 18-2902.
54. LaFave, Criminal Law, pp. 773–774. 106. Ark. Code Ann. § 5-11-104.
55. LaFave, Criminal Law, pp. 775–777. 107. People v. Cohoon, 42 N.E.2d 969 (Ill. App.
56. People v. Minkowski, 23 Cal. Rptr. 92 (Cal. Ct. Ct. 1942).
App. 1962). 108. McKendree v. Christy, 172 N.E.2d 380 (Ill. App. Ct.
57. Boro v. Superior Court, 210 Cal. Rptr. 92 (Cal. Ct. 1961).
App. 1985). 109. Rollin M. Perkins and Ronald N. Boyce, Criminal Law,
58. American Law Institute, Model Penal Code and 3rd ed. (Mineola, NY: Foundation Press, 1982),
Commentaries, vol. 1, pt. 2 (Philadelphia, PA: American p. 224.
Law Institute, 1980), pp. 305–306. 110. Wis. Stat. §940.31.
59. LaFave, Criminal Law, p. 744. 111. Ala. Code § 13A-6-41.
60. LaFave, Criminal Law, pp. 780–781. 112. Cole v. State, 942 So.2d 1010 (Fla. Dist. Ct. 2006).
Notes 379
CHAPTER 9 48.
49.
State v. Wentz, 68 P.3d 282 (Wash. 2003).
Cal. Penal Code § 459.
50. 18 Pa. Cons. Stat. § 3502(d).
1. People v. Hoban, 88 N.E. 806, 807 (Ill. 1909). 51. Ellyson v. State, 603 N.E.2d 1369 (Ind. Ct. App. 1992).
2. Anon. v. The Sheriff of London, Year Book 13 Edw. IV f.9, 52. LaFave, Criminal Law, p. 890.
p 1.5 (1473). 53. Jewell v. State, 672 N.E. 417 (Ind. App. 1996).
3. Joshua Dressler, Understanding Criminal Law, 3rd ed. 54. 18 Pa. Cons. Stat. § 3502(d).
(New York, NY: Lexis, 2001), pp. 550–551. 55. Cal. Penal Code § 464.
4. Rollin M. Perkins and Ronald N. Boyce, Criminal Law, 56. Ariz. Rev. Stat. Ann. § 13-1506–1508.
3rd ed. (Mineola, NY: Foundation Press, 1982), p. 298. 57. Idaho Code Ann. § 18-1406.
5. Dressler, Understanding Criminal Law, p. 550. 58. 18 Pa. Cons. Stat. § 3502.
6. Dressler, Understanding Criminal Law, p. 553. 59. State v. Stinton, 89 P.3d 717 (Wash. Ct. App. 2004).
7. Dressler, Understanding Criminal Law, p. 554. 60. Williams v. State, 600 N.E.2d 962 (Ind. Ct. App. 1993).
8. Wilkinson v. State, 60 So.2d 786 (Miss. 1952). 61. N.J. Stat. Ann. § 2C:17-lb.
9. Smith v. State, 74 S.E. 1093 (Ga. 1912). 62. Fla. Stat. § 806.01(1).
10. Tex. Code § 31.03. 63. 720 Ill. Comp. Stat. 5/201.1.
11. Cal. Penal Code §§ 484–502.9. 64. Fla. Stat. § 806.01(2).
12. Wayne R. LaFave, Criminal Law, 3rd ed. (St. Paul, MN: 65. Rev. Code Wash. 9A.48.030.
West, 2000), p. 813. 66. Rev. Code Wash. 9A.20.021.
13. S.C. Code Ann. § 16-13-30. 67. Cal. Penal Code §§ 451–452.
14. Tex. Code § 31.03.
15. Pa. Cons. Stat. § 3903(c)(1)-(3).
16. Cal. Penal Code § 487. CHAPTER 10
17. People v. Gasparik, 420 N.E.2d 40 (N.Y. 1978).
18. Rex v. Bazeley, 2 Leach 835, 168 Eng. Rep. 517 (1799). 1. Edwin H. Sutherland, White Collar Crime: The Uncut
19. Batin v. State, 38 P.3d 990 (Nev. 2002). Version (New Haven, CT: Yale University Press, 1983), p. 7.
20. United States v. Alvarez, 567 U.S. __ (2012). 2. New York Cent. & H.R.R. Co. v. United States, 212 U.S.
21. Tex. Code § 31.02. 481 (1909).
22. LaFave, Criminal Law, p. 850. 3. United States v. Dotterweich, 320 U.S. 277 (1943).
23. Perkins and Boyce, Criminal Law, pp. 343–344. 4. United States v. Park, 421 U.S. 658 (1971).
24. Cal. Penal Code § 211. 5. United States v. Dotterweich, 320 U.S. at 281.
25. People v. Braverman, 173 N.E. 55 (Ill. 1930). 6. People v. Travers, 52 Cal.App.3d 111 (1975).
26. LaFave, Criminal Law, pp. 869–870. 7. Wayne R. LaFave, Criminal Law, 3rd ed. (St. Paul, MN:
27. Fla. Stat. § 812.13. West, 2000), p. 275.
28. American Law Institute, Model Penal Code and 8. LaFave, Criminal Law, pp. 275–276.
Commentaries, vol. 1, pt. 11 (Philadelphia, PA: 9. United States v. Allegheny Bottling Company, 695 F. Supp.
American Law Institute, 1980), p. 104. 856 (E.D. Va. 1988), aff’d 870 F.2d 655 (4th Cir. 1989).
29. Fla. Stat. § 812.13. 10. Commonwealth v. Penn Valley Resorts, Inc., 494 A.2d
30. Cal. Penal Code § 215. 1139 (Pa. Super. 1985).
31. N.J. Stat. Ann. § 2C:15-1. 11. Ellen S. Podgor and Jerold Israel, White Collar Crime
32. Va. Code Ann. § 18.2-58.1. in a Nutshell, 3rd ed. (St. Paul, MN: West, 1997), pp.
33. Fla. Stat. § 812.133. 205–216.
34. William Blackstone, Commentaries on the Laws of 12. 29 U.S.C. § 651.
England, vol. 4 (Chicago, IL: University of Chicago 13. 29 U.S.C. § 666.
Press, 1979), p. 141. 14. David Barstow, “U.S. Rarely Seeks Charges for Deaths in
35. Mich. Comp. Laws §§ 750.213–214. Workplace,” The New York Times (December 22, 2003).
36. N.Y. Penal Law § 155.05. 15. People v. O’Neil, 550 N.E.2d 1090 (Ill. App. 1990).
37. State v. Crone, 545 N.W.2d 267 (Iowa 1996). 16. People v. Pymm, 565 N.E.2d 1 (N.Y. 1990).
38. State v. Harrington, 260 A.2d 692 (Vt. 1969). 17. 18 U.S.C. §§ 1348–1350.
39. American Law Institute, Model Penal Code and 18. Diamond v. Oreamuno, 248 N.E.2d 910 (N.Y. 1969).
Commentaries, p. 67. 19. United States v. O’Hagan, 521 U.S. 642 (1998).
40. Blackstone, Commentaries on the Laws of England, p. 20. 18 U.S.C. § 1343.
223. 21. 18 U.S.C. § 371.
41. Taylor v. United States, 495 U.S. 575 (1990). 22. United States v. Duff, 336 F. Supp. 3d 852 (N.D. Ill.
42. State v. Miller, 954 P.2d 925 (Wash. Ct. App. 1998). 2004).
43. State v. Roberts, 2004 Wash. App. LEXIS 255 (Wash. Ct. 23. United States v. Jenkins, 943 F.2d 167 (2nd Cir. 1991).
App. 2004). 24. United States v. Goodman, 945 F.2d 125 (6th Cir. 1991).
44. Sears v. State, 713 P.2d 1218 (Alaska Ct. App. 1986). 25. 18 U.S.C. § 1347.
45. Dixon v. State, 855 So. 2d 1245 (Fla. Dist. Ct. App. 26. United States v. Baldwin, 277 F. Supp. 2d 67 (D.D.C.
2003). 2003).
46. Stowell v. People, 90 P.2d 520 (Colo. 1939). 27. United States v. Lucien, 347 F.3d 45 (2nd Cir. 2003).
47. 720 Ill. Comp. Stat. 5/19-1(a). 28. United States v. Miles, 360 F.3d 472 (5th Cir. 2004).
29. United States v. Franklin-El, 554 F.3d 903 (10th Cir. 7. State v. A.S., 626 N.W.2d 712 (Wis. 2001).
2009). 8. American Law Institute, Model Penal Code and
30. Northern Pacific Railroad Co. v. United States, 356 U.S. 1 Commentaries, vol. 3, pt. 2 (Philadelphia, PA: American
(1958). Law Institute, 1985), pp. 313–314.
31. 15 U.S.C. § 1. 9. Cole v. Arkansas, 338 U.S. 345 (1949).
32. United States v. Azzarelli Construction Co. and John F. 10. N.Y. Penal Law §§ 240.05, 240.06.
Azzarelli, 612 F.2d 292 (7th Cir. 1979). 11. N.Y. Penal Law §§ 240.10, 240.15.
33. United States v. Allegheny Bottling Co., 695 F. Supp. 856 12. Ohio Laws § 2817.04.
(E.D. Va. 1988). 13. J.B.A. v. State, 2004 Utah App. 450 (2004).
34. Utah Code §§ 7606-1101–1104. 14. Atwater v. Lago Vista, 532 U.S. 318 (2000).
35. Flores-Figueroa v. United States, 556 U.S. 646 (2009). 15. George I. Kelling and James Q. Wilson, “Broken
36. City of Liberal Kansas v. Vargas, 24 P.3d 155 (Kan. App. Windows,” The Atlantic (March 1982), http://www.
2000). theatlantic.com/magazine/archive/1982/03/broken-
37. United States v. Johnson, 971 F.2d 562 (10th Cir. 1998). windows/304465/.
38. United States v. Jackson, 935 F.2d 832 (7th Cir. 1991). 16. American Law Institute, Model Penal Code and
39. 31 U.S.C. §§ 5313, 5322, 5324. Commentaries, p. 385.
40. Ratzlaf v. United States, 510 U.S. 135 (1994). 17. American Law Institute, Model Penal Code and
41. 26 U.S.C. § 7201. Commentaries, pp. 385–386.
42. 26 U.S.C. § 7202. 18. Mayor of the City of New York v. Miln, 36 U.S. 102 (1837).
43. 26 U.S.C. § 7206. 19. Edwards v. California, 314 U.S. 160 (1941).
44. 26 U.S.C. § 7203. 20. Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).
45. 26 U.S.C. § 7206. 21. Kolender v. Lawson, 461 U.S. 352 (1983).
46. Cheek v. United States, 498 U.S. 192 (1991). 22. Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla.
47. Lund v. Commonwealth, 232 S.E.2d 745 (Va. 1977). 1992).
48. People v. Puesan, 973 N.Y.S.2d 121 (N.Y. App. Div., 23. Joyce v. City and County of San Francisco, 846 F. Supp.
2013). 843 (N.D. Cal. 1994).
49. 18 U.S.C. § 1030(a)(6)(A)(B). 24. Loper v. New York City Police Dept., 999 F.2d 699 (2nd
50. 18 U.S.C. §1030(a)(7). Cir. 1993).
51. 18 U.S.C. § 1030(a)(5)(A). 25. Gresham v. Peterson, 225 F.2d 899 (7th Cir. 2000).
52. 18 U.S.C. § 1030(a)(2). 26. 740 ILCS 147/1.
53. 15 U.S.C. §§ 7701–7713. 27. Gallo v. Acuna, 929 P.2d 596 (Cal. 1997).
54. Marcella Bombardieri, “Aaron Swartz and MIT: The 28. City of Chicago v. Morales, 527 U.S. 41 (1999).
Inside Story,” The Boston Globe (March 29, 2014), 29. Municipal Code of the City of Chicago, 8–4-105, 8–4-
https://www.bostonglobe.com/metro/2014/03/29/ 017.
the-inside-story-mit-and-aaron-swartz/ 30. Norval Morris and Gordon Hawkins, The Honest
YvJZ5P6VHaPJusReuaN7SI/story.html. Politician’s Guide to Crime Control (Chicago, IL:
55. 17 U.S.C. § 302(a). University of Chicago Press, 1969).
56. 17 U.S.C. § 506. 31. Patrick Devlin, The Enforcement of Morals (New York,
57. 17 U.S.C. § 107. NY: Oxford University Press, 1965).
58. 17 U.S.C. § 2319. 32. People v. James, 98 Misc.2d 755 (Crim. Ct.
59. 18 U.S.C. § 2318. N.Y.C. 1979).
60. 17 U.S.C. § 506; 18 U.S.C. § 2319. 33. Ga. Code § 16–6-9.
61. 18 U.S.C. § 2320. 34. Pa. Cons. Stat. § 5902(a).
62. 18 U.S.C. §§ 1831–1832. 35. Cal. Penal Code § 653.22.
63. 18 U.S.C. §§ 1961–1963. 36. Banks v. State 975 N.E.2d 854 (Ind. Ct. App. 2012).
64. United States v. Robertson, 514 U.S. 669 (1995). 37. Pa. Cons. Stat. § 5902(e.2).
65. United States v. Local 560 of the International Brotherhood 38. 18 U.S.C. § 2421.
of Teamsters, 780 F.2d 267 (3rd Cir. 1985). 39. Cleveland v. United States, 329 U.S. 67 (1946).
66. United States v. Thompson, 685 F. 993 (6th Cir. 1982). 40. Ga. Cons. Stat. § 16–6-13(b).
41. City of Milwaukee v. Burnette, 637 N.W.3d 447 (Wis.
App. 2001).
42. Rex v. Curl, 93 Eng. Rep. 849 (K.B. 1727).
CHAPTER 11 43. Roth v. United States, 354 U.S. 476 (1957).
44. Miller v. California, 413 U.S. 15 (1973).
1. William Blackstone, Commentaries on the Laws of 45. New York v. Ferber, 458 U.S. 747 (1982).
England, vol. 4 (Chicago, IL: University of Chicago 46. American Booksellers Ass’n v. Hudnut, 771 F.3d 323 (7th
Press, 1969), pp. 142–152. Cir. 1985).
2. Wis. Stat. § 947.01. 47. 7 U.S.C. § 2137.
3. ILCS CS 5/26-1. 48. United States v. Stevens, 559 U.S. 460 (2010).
4. Ariz. Rev. Stat. § 13-2904. 49. 16 U.S.C. §§ 3371–3378.
5. State v. McCarthy, 659 N.W.2d 808 (Minn. App. 2003). 50. 16 U.S.C. §§ 703–712.
6. People v. Barron, 808 N.E.2d 1051 (Ill. App. 2004). 51. 16 U.S.C. §§ 1531–1543.
Notes 381
CHAPTER 12 46. State v. Webb, 648 N.W.2d 72 (Iowa 2002).

47. Fabricant v. Henry, 35 F.3d 570 (9th Cir. 1994); Beeler v.
State, 807 N.E.2d 789 (Ind. App. 2004).
1. Buddy T., “Domestic Abuse and Alcohol: Some Doubt 48. People v. Leal, 64 Cal. 2d 504 (1966).
the Role Alcohol Plays,” VeryWell (September 27, 49. People v. Rubacalba, 6 Cal. 4th 62 (1993).
2015), https://www.verywell.com/domestic-abuse-and- 50. 21 U.S.C. § 841(a).
alcohol-62643. 51. State v. Smith, La. App. LEXIS 1608 (2012).
2. 23 U.S.C. § 158. 52. Commonwealth v. Stephens, 2012 Mass. App. LEXIS 280
3. 740 ILCS 58/1. (2012).
4. Va. Code § 4.1-100. 53. State v. Smith, 2011-Ohio-6466.
5. IC 7.1-5-1-3. 54. Charlie Savage, “Obama Curbs Sentences of 8 in Crack
6. Cal. Penal Law § 647(f). Cases,” The New York Times (December 20, 2013).
7. Powell v. Texas, 392 U.S. 514 (1968). 55. Sari Horowitz and Ann E. Marinow, “President
8. Foster v. State, 2012 Ark. App. 640 (2012). Obama Grants Early Release to 61 More Federal Drug
9. Mackey v. Montrym, 443 U.S. 1 (1979); South Dakota v. Offenders,” The Washington Post (March 30, 2016),
Neville, 459 U.S. 553 (1983). https://www.washingtonpost.com/world/national-
10. Missouri v. McNeely, 569 U.S. ____ (2013). security/president-obama-grants-early-release-to-61-
11. Millard v. State, Ind. App. Unpub. LEXIS 1422 (Ind. more-federal-drug-offenders/2016/03/30/7256bb60-
App. 2012). f683-11e5-8b23-538270a1ca31_story.html.
12. State v. Owen, 2012 Mo. App. LEXIS 1399 (2012). 56. Julie Hirschfeld and Peter Baker, “In ‘Fairness,’ Obama
13. State v. Sims, 48 N.M. 330 (N.M. 2010). Commutes Sentences for 95, Mostly Drug Offenders,”
14. State v. Butler, 108 S.W.3d 845 (Tenn. 2003). The New York Times (December 18, 2015).
15. State v. Greenman, 148 S.W.3d 347 (Minn. App. 2013). 57. Ravin v. State, 537 P.2d 494 (Alaska, 1975).
16. State v. Hammond, 571 A.2d 940 (N.J. 1990). 58. United States v. Oakland Cannabis Buyers Cooperative, 532
17. State v. Inglis, 698 A.2d 1290 (Law Div. N.J. 1997). U.S. 483 (2001).
18. State v. Romano, 809 A.2d 158 (Super. Ct. N.J. 2012). 59. Gonzales v. Raich, 545 U.S. 1 (2005).
19. State v. Squires, 519 A.2d 1154 (Vt. 1986). 60. Gonzales v. O Centro Espirita, 546 U.S. 418 (2006).
20. American Gaming Association, State of the States 61. N.J.S.A. 2C: 21-1; N.J.S.A. 2C: 35-1; N.J.S.A. 2C: 35-21;
(January 1, 2012), https://www.americangaming.org/ N.J.S.A. 2C: 35-10.5.
research/reports/state-states-12. 62. California Health and Safety Code § 11364.
21. People v. Hua, 885 N.Y.S.2d 380 (Crim. Ct. N.Y.C. 2009). 63. United States v. Janus Industries, 48 F.3d 1548 (10th Cir.
22. Fla. Stat. §§ 849.231–849.232. 1988).
23. Town of Mount Pleasant v. Chimento, 737 S.E.2d 830 64. Geiger v. City of Eagan, 618 F.2d 26 (8th Cir. 1980).
(S.C. 2013). 65. Hoffman Estates v. Flipside, 455 U.S. 489 (1982).
24. 18 U.S.C. § 1084. 66. People v. Carreon, 2012 Ill.App.2d 100391.
25. 31 U.S.C. §§ 5361–5366. 67. RCW § 69.50.505.
26. 31 U.S.C. § 5361. 68. United States v. Good Real Property, 510 U.S. 43 (1993).
27. 15 U.S.C. § 1171. 69. 18 U.S.C. § 983.
28. 22 U.S.C. § 2121. 70. United States v. Good Real Property, 510 U.S. at 43.
29. 18 U.S.C. § 1084. 71. United States v. Ursery, 518 U.S. 267 (1996).
30. 15 U.S.C. § 1953. 72. Skinner v. Railway Labor Executives’ Association, 489 U.S.
31. 18 U.S.C. § 1955. 602 (1989).
32. 15 U.S.C. § 3001. 73. National Treasury Employees Union v. Von Raab, 489 U.S.
33. 18 U.S.C. § 178. 656 (1989).
34. 18 U.S.C. § 1081. 74. Vernonia School District 47J v. Acton, 525 U.S. 646
35. 15 U.S.C. § 1953. (1995).
36. 31 U.S.C. § 5361. 75. Board of Education of Independent School District No. 92 of
37. Michelle Alexander, The New Jim Crow Mass Pottawatomie County v. Earls, 536 U.S. 822 (2002).
Incarceration in the Age of Colorblindness (New York, NY: 76. Safford Unified School District v. Redding, 557 U.S. 364
New Press, 2010), pp. 47–57. (2009).
38. National Drug Intelligence Center, National Drug Threat 77. 21 U.S.C. § 829.
Assessment (2011), http://www.justice.gov/archive/
ndic/topics/ndtas.htm.
39. United States v. Doremus, 249 U.S. 86 (1919). CHAPTER 13
40. Webb v. United States, 249 U.S. 96 (1919).
41. 12 U.S.C. § 801. 1. Art. 1, § 9, cl. 8; Art. 1, § 6, cl. 2; Art. I, § 9, cl. 7.
42. 21 U.S.C. § 841(a)(1). 2. Page v. State, 980 So. 2d 528 (Fla. App. Ct. 2008).
43. United States v. De La Torre, 599 F.3d 1198 (10th Cir. 3. 18 U.S.C. § 201(c)(1)(B).
2010). 4. 720 ILCS 5/33-1.
44. State v. Harrison, 818 A.2d 487 (N.J. App. 2003). 5. Rollin M. Perkins and Ronald N. Boyce, Criminal Law,
45. State v. Christensen, 2012 Minn. App. Unpub. LEXIS 3rd ed. (Mineola, NY: Foundation Press, 1982),
1133. pp. 528–538.
6. Model Penal Code § 240(8). 60. Pa. Cons. Stat. § 5121.

7. Model Penal Code § 240.0 (1). 61. People v. Unger, 338 N.E. 2d 442 (Ill. App. 1975).
8. American Law Institute, Model Penal Code and 62. State v. Pichon, 811 P.2d 517 (Kan. App. 1991).
Commentaries, Part 11, § 240-§ 251.4 (Philadelphia, PA: 63. United States v. Bailey, 444 U.S. 394 (1980).
American Law Institute, 1980), p. 37. 64. People v. Martin, 298 N.W.2d 900 (Mich. App. 1980).
9. Fla. Stat. § 838.015(2). 65. Shillitani v. United States, 384 U.S. 364 (1966).
10. State v. Bowling, 427 P.2d 928 (Ariz. App. 1967). 66. Perkins and Boyce, Criminal Law, pp. 591–592.
11. State v. Stanley, 200 S.E.2d 223 (N.C. 1973). 67. Bernard v. Smith, 2012 Tenn. App. LEXIS 711.
12. 720 Il.CS 5/33-1; 9A.68.010 RCW. 68. Ex parte Robinson, 86 U.S. 505 (1873).
13. United States v. Sun Diamond Growers, 526 U.S. 398 (1999). 69. Commonwealth v. Washington, 353 A.2d 806 (Pa. 1976).
14. N.J. Stat. § 2C:21-10. 70. In re Williams, 509 F.2d 949 (2nd Cir. 1975).
15. 18 U.S.C. §1952(b); United States v. Welch, 327 F.3d 1081 71. Davila v. State, 75 So.3d 192 (Fla. 2011).
(10th Cir. 2003). 72. Eaton v. City of Tulsa, 415 U.S. 697 (1974).
16. N.Y. Penal Law §§ 180.35, 180.45. 73. Greenberg v. United States, 849 F.2d 1251 (1987).
17. 5 U.S.C. § 78dd-1. 74. Bloom v. Illinois, 391 U.S. 194 (1968).
18. 18 U.S.C. § 872. 75. N.Y. Penal Law §§ 215.50–215.52.
19. 18 U.S.C. § 873. 76. United States v. United Mine Workers of America, 330 U.S.
20. 18 U.S.C. § 876. 258 (1947).
21. 18 U.S.C. § 876. 77. State v. Geiger, 978 N.E.2d 1061 (Ill. 2012).
22. 18 U.S.C. § 1623. 78. 2 U.S.C. § 192.
23. Cal. Penal Code § 118.
24. N.Y. Penal Law §§ 210.10, 210.15.
25. Bronston v. United States, 409 U.S. 352 (1973).
26. United States v. Thomas, No. 08-10450 (9th Cir. 2010). CHAPTER 14
27. United States v. Gremillion, 464 F.2d 90 (5th Cir. 1972).
28. 18 U.S.C. § 1623(c). 1. Cramer v. United States, 325 U.S. 1 (1945).
29. United States v. Fornaro, 894 F.2d 58 (2nd Cir. 1990). 2. United States v. Greathouse, 26 F. Cas. 18 (C.C.N.D. Cal.
30. Riley v. United States, 647 A.2d 1165 (D.C. 1994). 1863) (No. 15,254).
31. 18 U.S.C. § 1510. 3. D’Aquino v. United States, 192 F.2d 338 (9th Cir. 1951).
32. 18 U.S.C. § 1512. 4. Dennis v. United States, 341 U.S. 494 (1951).
33. 18 U.S.C. § 1520. 5. Yates v. United States, 354 U.S. 298 (1957).
34. 18 U.S.C. § 1512(b)(1). 6. 18 U.S.C. § 2153.
35. 720 ILCS 5/31-4. 7. 18 U.S.C. § 2155.
36. People v. Brake, 783 N.E.2d 1084 (Ill. App. 2003). 8. 18 U.S.C. §§ 2152, 2156.
37. People v. Danielak, 2012 Mich. App. LEXIS 2285. 9. United States v. Kabat, 797 F.2d 580 (8th Cir. 1986).
38. People v. Kissner, 292 Mich. App. 26 (2011). 10. United States v. Walli, 785 F.3d 1986 (6th Cir. 2015).
39. Ohio Rev. Code Ann. § 2921.23 (a). 11. 18 U.S.C. § 794.
40. State v. Floyd, 584 A.2d 115 (Conn. 1991). 12. Gorin v. United States, 312 U.S. 19 (1941).
41. § 9A76.040 RCW. 13. 18 U.S.C. § 2332(b)(g)(3)–(5).
42. In re B.M., 2012 Ohio 6221. 14. 18 U.S.C. § 2332.
43. Patterson v. State, 973 N.E.2d 1266 (Ind. App. 2012). 15. 18 U.S.C. § 2332(b).
44. State v. Kornilov, 2012 Ohio 6218. 16. 18 U.S.C. § 175.
45. State v. Miller, 172 S.W.3d 838 (Mo. App. Ct. 2005). 17. 49 U.S.C. § 46502.
46. State v. Herrin, 2012 Ariz. App. Unpub. LEXIS 975. 18. 18 U.S.C. § 2339.
47. Williams v. State, 2012 Md. App. LEXIS 147 (Ct. Spec. 19. 18 U.S.C. §§ 2339A, 2339B.
App. 2012). 20. 8 U.S.C. § 1189(a)(1).
48. Shoultz v. State, 735 N.E.2d 818 (Ind. App. 2000). 21. Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).
49. State v. Ramsdell, 285 A.2d 399 (R.I. 1971). 22. United States v. Bell, 81 F.SUPP. 3d 1301 (D.C. M.D. Fla.
50. 72 ILCS /32-1. 2015).
51. Col. Stat. §18-8-108. 23. United States v. Lindh, 212 F. Supp. 2d 541 (E.D. Va.
52. ORC § 292.21. 2002).
53. Ga. Code Ann. § 16-10-90. 24. Muhammad v. Commonwealth, 619 S.E.2d 16 (Va. 2005).
54. N.M. Stat. Ann. § 30-22-6. 25. Arizona v. United States, 567 U.S. ___ (2012).
55. 18 U.S.C. § 4. 26. Pub. Law No. 82-414, 66 Stat. 163.
56. Perkins and Boyce, Criminal Law, pp. 560–571. 27. Pub. Law No. 99-603, 100 Stat. 3359.
57. 18 U.S.C. § 751. 28. 8 U.S.C. § 1325(c).
Glossary
abandonment: an individual physical control or on his or her murder statute, including an

who completely and voluntarily person. offender’s prior record, nature of
renounces his or her criminal the offense, and identity of the
purpose is not liable for an actus reus: a criminal act, the victim.
attempt. Abandonment as a result physical or external component of
a crime. aggressor: individuals initiating
of outside or extraneous factors
a physical confrontation are not
does not constitute a defense. adultery: having sexual entitled to self-defense unless they
abuse excuse: criminal defenses intercourse and living with a retreat.
that involve a claim of lack of person who is married.
alibi: a defense that an accused
criminal responsibility based on affirmative defenses: the
has been somewhere else at the
past abuse or experiences. burden of production, and
time of the crime.
in most cases the burden of
access device fraud: fraud
persuasion, is on the defendant. alter ego rule: an individual
involving the theft of a personal
intervening in defense of others
identification number (PIN) or agency theory of felony
possesses the rights of the person
other identifying information murder: a felon is liable for a
he or she is assisting.
used to access money. murder committed by a co-felon.
American bystander rule: no
accessories: parties responsible aggravated assault: an assault
legal duty to assist or to rescue an
for the separate and lesser offense committed with a dangerous or
individual in danger.
of assisting a criminal offender to deadly weapon or with the intent
avoid apprehension, prosecution, to threaten or to commit rape or American rule for resistance
or conviction. another serious crime. to an unlawful arrest: an
aggravated battery: a felony individual may not resist an
accessories after the fact:
that typically requires serious illegal arrest.
individuals liable for assisting
an offender to avoid arrest, bodily injury, the use of a appellant: the individual
prosecution, or punishment. dangerous or deadly weapon, appealing.
or the intent to kill, rape, or
accessories before the fact: seriously harm. appellate courts: intermediate
individuals under the common or supreme courts of appeals.
law who assist an individual prior aggravated rape: a rape that
to the commission of a crime and is more harshly punished based appellee: the party against
who are not present at the scene on the use of force, injury to whom an appeal is filed.
of the crime. the victim, or the fact that the
arson: willful and malicious
perpetrator is a stranger or other
accomplices: parties liable as burning of the dwelling of
factors.
principles before and during the another. Modified by statute
commission of a crime. aggravated sexual assault: a to encompass any building or
sexual assault committed under structure.
acquaintance rape: rape circumstances deserving of a more
between two individuals who severe punishment. assault and battery: battery
know one another. is the application of force to
aggravating factors: factors another person. An assault may be
actual possession: an object that permit the application of committed either by attempting
within an individual’s immediate the death penalty under a capital to commit a battery or by
383
intentionally placing another in two separate crimes—that is, causation: there must be a
fear of a battery. it punishes giving as well as connection between an act and
receiving a bribe, and requires the resulting prohibited harm.
assets forfeiture: seizure an intent to influence or to be
pursuant to a court order of influenced in the carrying out cause in fact: the defendant
the “fruits” of illegal narcotics of a public duty. Bribery does must be shown to be the “but for”
transactions (along with certain not require a mutual agreement cause of the harm or injury.
other crimes) or of material between the individuals.
that was used to engage in such certiorari: a writ or order
activity. brief: a written legal argument issued by the U.S. Supreme Court
submitted to an appellate court. assuming jurisdiction over an
attempt: an intent or purpose appeal. Four judges must vote to
to commit a crime, an act or acts broken windows theory: a review a case.
toward the commission of the failure to prevent and punish
crime, and a failure to commit the chain conspiracy: a conspiracy
misdemeanor offenses causes
crime. in which individuals are linked
major crimes.
in a vertical chain to achieve a
attendant circumstances: the burden of persuasion: criminal objective.
conditions or context required for responsibility to convince the
a crime. fact finder, usually beyond a child abduction: “an offense
reasonable doubt. that requires the state to prove
bench trial: trial before a judge that the defendant ‘intentionally
without a jury. burden of production: lure[d] or attempt[ed] to lure a
responsibility to produce child under the age of 16 into a
bilateral: a conspiratorial
sufficient evidence for the fact motor vehicle . . . without the
agreement requires at least two
finder to consider the merits of a consent of the parent . . . of
persons with the intent to enter
claim. the child for other than a lawful
into the agreement who possess
the intent to achieve a common purpose.’”
burglary: breaking and entry
criminal objective. of a dwelling at night with an child pornography: a juvenile
bill of attainder: a legislative intent to commit a felony therein. engaged in actual or simulated
act directed against an individual Modified by statute to cover an sexual activity or in the lewd
or group of individuals imposing illegal entry into any structure display of genitals.
punishment without trial. with a criminal intent.
choice of evils: the defense of
Bill of Rights: first ten capital felony: punishable necessity in which an individual
amendments to the U.S. by the death penalty or by life commits a crime to avoid an
Constitution. imprisonment in states without imminent and greater social harm
the death penalty. or evil.
binding authority: a decision
that establishes a precedent. capital murder: heinous, civil commitment: a procedure
atrocious, and cruel killing of for detaining psychologically
blackmail: the taking of another. This is punishable troubled individuals.
property through the threat to by the death penalty or life
disclose secret or embarrassing imprisonment and in noncapital civil contempt: disobedience to
information. punishment states by life an order or direction of the judge
imprisonment. Also referred to in by one of the litigants in a judicial
brain death test: the proceeding.
some states as aggravated murder.
irreversible function of all brain
functions is the point at which an carjacking: the taking of a civil law: protects the individual
individual is legally dead. motor vehicle in the possession rather than societal interest.
of another from his or her person
breach of the peace: acts that code jurisdiction: acts or
or immediate presence by force
disturb or tend to disturb the omissions only are punishable
against his or her will.
tranquility of citizens. that are contained in state
case-in-chief: the prosecution’s criminal code.
bribery: giving, offering, or
phase of the trial.
promising a benefit as well coincidental intervening
as demanding, agreeing to Castle Doctrine: individuals act: a defendant’s criminal act
accept, or accepting a benefit. have no obligation to retreat results in the victim being at a
In other words, bribery involves inside their home. particular place at a particular
Glossary 385
time and being impacted by an concurrence: a criminal intent product to other individuals, and
independent intervening act. must trigger and coincide with a that he or she is protected for life
The defendant is responsible criminal act. plus seventy years.
for foreseeable coincidental
intervening acts. concurrent jurisdiction: joint corporate liability: the
authority of courts of different imposition of vicarious liability
collateral attack: a challenge jurisdictions. Typically refers to on a corporate officer or
to a conviction filed following the joint authority of federal and state corporation.
exhaustion of direct appeals. courts over a legal matter.
corporate murder: a killing for
combat immunity: individuals concurring opinion: an which a business enterprise is held
meeting standards set forth in opinion by a judge supporting a criminally liable.
the Geneva Convention are to be majority or dissenting opinion,
treated as prisoners of war when typically based on other grounds. corpus delicti: a “body of
apprehended. crime” or “substance of the
conspiracy: an agreement to crime.”
commercial bribery: accepting commit a crime. Various state
“money or anything of value” statutes require an overt act in corroboration: at common
from a person other than one’s furtherance of this purpose. law a rape victim’s complaint
employer and using one’s position was required to be supported
to benefit the outside individual. constitutional democracy: a by evidence that confirms the
constitutional system that limits victim’s testimony.
common law crimes: crimes the powers of the government.
developed by the common courts of general
law judges in England and constructive intent: jurisdiction: state courts that
supplemented by acts of individuals who act in a gross hear serious criminal and civil
Parliament and decrees issued by and wantonly reckless fashion are cases. In some states, these courts
the king. considered to intend the natural have jurisdiction over criminal
consequences of their actions appeals from courts of limited
common law states: the and are guilty of a willful and jurisdiction.
common law may be applied intentional battery or homicide.
where the legislature has not courts of limited jurisdiction:
acted. constructive possession: an courts with jurisdiction over a
individual who retains legal narrow range of cases. Typically
competence to stand trial: a
possession over property that refers to state courts that
defendant is competent to stand
is not within his or her actual prosecute misdemeanors and
trial who is able to intelligently
control. certain felonies and hear traffic
assist his or her attorney and to
offenses, set bail, and conduct
follow and understand the trial. contemnor: an individual held preliminary hearings. These
in contempt of court. local courts are commonly called
complete attempt: an
individual takes every act required contraband: material that municipal courts, police courts, or
to commit a crime and fails to is unlawful to possess or to magistrates’ courts.
succeed. manufacture. courts of original
compounding a crime: controlled substances: jurisdiction: the court in which
knowingly receiving or offering drugs and chemicals whose a prosecution originates.
an item of value in return for a manufacture, distribution, and crime: conduct that if shown
promise not to prosecute or not to possession are regulated by the to have taken place will
aid in prosecution. government. result in a formal and solemn
computer crime: crimes pronouncement of the moral
cooling of blood: the point
involving the computer, including condemnation of the community.
at which an individual who
unauthorized access to computers has been provoked no longer is crimes against public order
and computer programs acting in response to an act of and morality: offenses that
and networks, modification provocation. threaten public peace, quiet, and
or destruction of data and
tranquility.
programs, and the sending of copyright: a federal law
mass unsolicited messages and providing that only the “creator” crimes against state: treason,
messages intended to trick and of an intellectual work is free to sedition, sabotage, espionage,
deceive. license the rights to his or her and terrorism and other
offenses intended to harm the decriminalization of disclose or abstain doctrine:

government. marijuana: reduction in the obligation either to make
criminal classification of the corporate information public or
crimes against the quality of possession of small amounts of to refrain from trading in the
life: misdemeanor offenses that marijuana, which typically are corporation’s stock.
diminish the sense of safety and subject to a small fine.
security in a neighborhood. discretionary appeal: a court is
defendant: individual charged not obligated to hear an appeal.
crimes of cause and result: with a criminal offense.
the intent to achieve a specific disorderly conduct:
result. Deferred Action for intentionally or knowingly
Childhood Arrivals (DACA): a causing or risking public
criminal attempt: comprises law implemented by the Obama inconvenience, annoyance, or
three elements: (1) an intent or administration in June 2012 that alarm.
purpose to commit a crime, (2) an allows undocumented immigrants
act or acts toward the commission dissenting opinion: an opinion
who entered the country before
of the crime, and (3) a failure to by a judge disagreeing with the
their sixteenth birthday and
complete the crime. majority of a multijudge court.
before June 2007 to receive a
criminal contempt: acts renewable two-year work permit distracted driving: driving
intended to impede or interfere and exemption from deportation while doing acts that may divert
with the justice process or that but does not provide a path to an individual’s attention.
demonstrate a lack of respect citizenship.
domestic battery: aggravated
for the court by denigrating, defiant trespass: entering or felony battery of a spouse, a
demeaning, or disregarding the remaining on the property of former spouse, or the mother or
judge. another after receiving notice father of the assailant’s child that
criminal homicide: all that an individual’s presence is results in a “traumatic condition.”
homicides that are neither without the consent of the owner.
domestic terrorism: a violent
justified nor excused. depraved heart murder: or dangerous act occurring
criminal mischief: damage or killing as a result of extreme within the United States
destruction of tangible property. recklessness and wanton intended to intimidate or coerce
unconcern and indifference the civilian population or to
criminal procedure: to human life with malice influence government policy
investigation and detection of aforethought. by intimidation or coercion
crime by the police and the or to affect the conduct of a
procedures used at trial. derivative liability: the guilt government by mass destruction,
of a party to a crime based on the assassination, or kidnapping.
criminal trespass: criminal acts of the primary party.
unauthorized entry or remaining domestic violence: violent
on the land or premises of diminished capacity: an crimes committed against any
another. excuse defense in which the member of a household.
defendant claims an incapacity to
custody: temporary and limited form the required criminal intent driving under the influence
right to control property. for the crime and should be held (DUI): driving while under the
liable for a lesser crime. influence of liquor or narcotics.
cybercrime: crime committed
through the use of a computer. direct criminal contempt: driving while intoxicated
an insulting remark or physical (DWI): driving an automobile
cyberstalking: stalking on the assault on the judge, repeated while intoxicated.
computer. disregard of a judge’s direction driving with an unlawful
dangerous weapon battery: to limit the length of an opening blood alcohol level (DUBAL):
an aggravated battery under state or closing statement or cross- driving while one’s blood alcohol
statutes in which a dangerous examination of a witness, or level is too high, despite the
weapon is used to inflict serious disruptive behavior by a spectator fact that one’s driving may be
bodily harm. committed in the immediate unaffected.
presence of the judge or court or
deadly force: use of physical sufficiently close to the court to drug courts: courts in which,
force or a weapon likely to cause impede or to interfere with the rather than sending nonviolent
death or serious bodily harm. judicial process. defendants charged with drug
Glossary 387
possession to prison, judges, embezzlement: the fraudulent excusable homicide:

defense attorneys, prosecutors, conversion of the property of individuals are relieved of
and court professionals work another by an individual in lawful criminal liability based on
together to establish goals and possession. lack of criminal intent. This
targets for defendants to achieve. includes insanity, infancy, and
en banc: a case before a intoxication.
Drug Enforcement judicial panel comprising all
Administration (DEA): a judges on a federal court of excuses: defenses in which
“single unified command” appeals. Literally translated as the defendants admit wrongful
established in 1973 by President “entire court.” conduct while claiming a lack
Richard M. Nixon that conducts of legal responsibility based on
and coordinates the national and English rule for resistance a lack of a criminal intent or the
international war on drugs. to an unlawful arrest: an involuntary nature of their acts.
individual may use reasonable
drug paraphernalia: items force to resist an illegal arrest. extortion: the taking of property
primarily intended or designed from another by threat of future
for the manufacture, processing, entrapment: defense based violence or action, such as
preparing, or concealing of on governmental inducement circulating secret or embarrassing
narcotics and items primarily of an otherwise innocent information, threat of a criminal
used in injecting, ingesting, and defendant to commit a defense charge, or threat to inflict
inhaling marijuana, cocaine, (subjective test) or based on economic harm.
and hashish or other controlled governmental conduct that
substances. falls below accepted standards extraneous factor: a
and would cause an innocent circumstance that is not created
dual sovereignty: sharing of individual to commit a criminal by a defendant that prevents the
power between federal and state offense (objective test). completion of a criminal act.
governments. Each has different
interests that permit both a state environmental crimes: extraterritorial jurisdiction:
and a federal prosecution for the crimes that damage the natural prosecuting crimes outside of a
same crime. environment, including harm to country’s national boundaries.
the air, water, land, and natural
Due Process Clause: the Fifth extrinsic force: an act of force
resources.
and Fourteenth Amendments to beyond the effort required to
the U.S. Constitution guarantee equal protection: the Fifth accomplish penetration.
individuals due process of law. and Fourteenth Amendments to
The Fourteenth Amendment Due the U.S. Constitution guarantee factual impossibility: a
Process Clause incorporates most of individuals equal protection of criminal act is prevented from
the protections of the Bill of Rights. the law. being completed because of an
extraneous factor.
duress: a crime is excused escape: knowingly fleeing
when committed to avoid what custody following arrest or false imprisonment:
is reasonably believed to be the detention. intentional and unlawful
imminent infliction of serious confinement or restraint of
physical harm or death. espionage: delivering another person.
information to a foreign
Durham product test: a government with the intent or false pretenses: obtaining title
defendant’s unlawful act is the reason to believe that it is to and possession of property of
product of a mental disease or be used to injure the United another by a knowingly false
defect. States or to advantage a foreign representation of a present or past
government. material fact with an intent to
duty to intervene: the legal
defraud that causes an individual
obligation to act.
European bystander rule: a to pass title.
earnest resistance: a standard rule in Europe imposing a legal
of resistance to rape under the duty on individuals to assist those federal crime of terrorism:
common law. in peril. one or more violent federal
offenses calculated to influence or
Eighth Amendment: ex post facto law: a law affect the conduct of government
an amendment to the U.S. declaring an act criminal by intimidation or coercion, or
Constitution that prohibits cruel following the commission of the to retaliate against government
and unusual punishment. act. conduct.
federal criminal code: federal to provide equal rights and Good Samaritan laws:
criminal statutes. opportunity for newly freed African legislation requiring individuals to
American slaves. The Fourteenth assist an individual in peril.
felony: crime punishable by
Amendment incorporates most of
death or by imprisonment for grading: the categorization of
the provisions of the Bill of Rights
more than one year. homicide in accordance with the
and extends these protections to
“moral blameworthiness” of the
felony murder: a killing the states.
perpetrator.
committed during the
commission of a felony. Fourth Amendment: grand larceny: a serious larceny,
an amendment to the U.S. determined by the value of the
fiduciary relationship: a Constitution that protects property that is taken.
duty of care owed by a corporate individuals against unreasonable
official to the stockholders in a searches and seizures. gratuity: an unlawful payment
corporation. made to reward a public official
fraud: an intentional and for action taken or that will be
fighting words: insulting words taken in the future.
knowing misrepresentation of a
causing a breach of the peace.
material (important) fact intended gross misdemeanor:
First Amendment: an to induce another person to hand punishable by between six and
amendment to the U.S. over money or property. twelve months in prison.
Constitution that protects
freedom of expression, assembly, fraud in inducement: guilty but mentally ill
and free exercise of religion. misrepresentation in regard to (GBMI): the defendant found
the purpose or benefits of a sexual to be guilty and mentally ill at
first-degree murder: relationship does not constitute the time of the criminal offense.
intentional and premeditated rape. The defendant is provided
murder with malice aforethought. with psychiatric care while
fraud in the factum: incarcerated. This is distinguished
first impression: a legal issue
misrepresentation in regard to from a verdict of not guilty by
before a court with no existing
the act to which an individual reason of insanity (NGRI).
precedent on which to rely.
consents constitutes rape.
fleeing felon rule: the common hate speech: speech that
law rule permitting deadly force gambling: activity that is denigrates, humiliates, and attacks
against a felon fleeing the police. prohibited under criminal law. individuals on account of race,
The element of luck typically is religion, ethnicity, nationality,
fleeting possession: temporary required to predominate over the gender, sexual preference, or
dominion and control over element of skill. other personal characteristics and
an object and typically not preferences.
considered possession for gaming: activity that has been
purposes of criminal liability. legalized by existing law or that health care fraud: fraud in
may be exempted from coverage which health care providers
Foreign Corrupt Practices or consumers knowingly and
of the criminal law.
Act: established that it is illegal willfully execute or attempt to
for an individual or company to Gebardi rule: an individual who execute a scheme involving false
bribe a foreign official in order is excluded from liability under a statements intended to obtain,
to gain assistance in obtaining or criminal statute may not be held keep, or qualify for benefits or to
retaining business. legally liable as a conspirator to increase benefits under a federal
forgery: creating a false legal violate the law. health care program.
document or the material heat of passion: acting in
general intent: an intent to
modification of an existing response to adequate provocation.
commit an actus reus.
document with the intent to
deceive or to defraud others. human trafficking: providing
Geneva Convention of 1949: or obtaining the labor of another
fornication: an unmarried international treaty on the law of through threat of serious harm or
person who has voluntary war providing standards for lawful restraint or trafficking in persons
sexual intercourse with another combatant status. who are to be subjected to slavery
individual. or forced labor.
Gerstein hearing: hearing
Fourteenth Amendment: to determine whether police identity theft: stealing of an
an amendment to the U.S. possessed probable cause for an individual’s personal identifying
Constitution passed in 1868 arrest. information.
Glossary 389
ignorantia legis non exusat: Constitution is interpreted intangible property: property

ignorance of the law is no excuse. to include most of the rights that represents something of
contained in the first eight value such as checks, money
immigration law: protects the amendments and extends these orders, credit card numbers, car
border of the United States and protections to the states. titles, and deeds demonstrating
the sovereign right of the United ownership of property.
States to control who may enter indecent exposure: an act of
and who may remain in the public indecency. intellectual property: the
country. content of books, films, artistic
indictment: an accusation of works, musical scores, and other
imperfect self-defense: an criminal activity returned by a “products of the mind.”
honest but unreasonable belief grand jury.
in the justifiability of self-defense intent-to-do-serious-bodily-
that results in a conviction for indirect criminal contempt: harm murder: a killing
manslaughter rather than murder. acts that occur outside the committed with the purpose of
presence of the court that impede causing serious physical injury.
implied consent laws: laws or interfere with the judicial
that provide that individuals process. intermediate appellate
who obtain a driver’s license courts: courts between municipal
impliedly have consented to the infamous crimes: deserving of courts and the Supreme Court.
administration of a urine or blood shame or disgrace.
intermediate level of
test or Breathalyzer to determine infancy: at common law there scrutiny: classifications based on
their blood alcohol content. was an irrebuttable presumption gender must be factually related
inchoate crimes: attempts, that children under seven lack to differences based on gender
conspiracy, and solicitation. Each criminal intent. In the case of and must be substantially related
requires a specific purpose to children over seven and under to the achievement of a valid state
accomplish a criminal objective fourteen there was a rebuttable objective.
and an act in furtherance of presumption of a lack of capacity
to form a criminal intent. international criminal
the intent. These offenses are law: treaties agreed to by the
punished to the same extent or Individuals over fourteen were
considered to possess the same international community that
to a lesser extent than the target addresses crimes that are so
crime. capacity as an adult.
serious that they are considered to
incitement to violent action: information: a document be the concern of all nations and
words provoking individuals to signed by a prosecutor charging peoples. These treaties prohibit
breach the peace. an individual with a crime. and punish acts such as genocide,
torture, war crimes, and terrorism.
incomplete attempt: an infraction: punishable by a fine.
international terrorism:
individual abandons or is inherent impossibility: an act a violent or dangerous act
prevented from completing an that is incapable of achieving the occurring outside the United
attempt due to an extraneous or desired result. States intended to intimidate or
intervening factor.
coerce the civilian population or
insanity defense: a legal excuse
inconsistent statements: to influence government policy
based on a mental disease or
divergent statements made under by intimidation or coercion
defect.
oath within the period of the or to affect the conduct of a
statute of limitations, in which Insanity Defense Reform Act government by mass destruction,
the prosecution may establish of 1984: law passed by the U.S. assassination, or kidnapping.
falsity by offering both statements Congress making it more difficult
Interstate Commerce Clause:
into evidence without specifying to establish legal insanity in
constitutional power of the U.S.
which of the two statements is federal courts following the jury
Congress to regulate commerce
false. The defendant may offer the verdict that John Hinckley was
among the states.
defense that he or she genuinely not guilty by reason of insanity
believed at the time that each of for the attempted assassination of intervening cause: a cause that
the statements was true. President Ronald Reagan. occurs between the defendant’s
criminal act and a social harm.
incorporation: the Due insider trading: use
Process Clause of the Fourteenth of confidential corporate intervention in defense of
Amendment to the U.S. information to buy or sell stocks. others: the privilege to exercise
self-defense on behalf of an larceny by trick: obtaining hatred. This may be express or

individual in peril. possession by a misrepresentation. implied.
intrinsic force: the amount legal impossibility: the defense mandatory minimum drug
of force required to achieve that an individual’s act does not sentences: the legislature
penetration. constitute a crime as a matter of requires judges to sentence an
law. offender to a minimum sentence,
involuntary act: unconscious regardless of mitigating factors.
act or automatism. legislative contempt: the Prison sentences may be reduced
power to punish “disrespectful by good-time credits while
involuntary intoxication: a and disorderly” behavior as incarcerated.
defense to criminal offenses where well as individuals who refuse a
the defendant meets the standard subpoena to testify or to submit manslaughter: killing
for mental illness in the state. documents. of another without malice
aforethought and without excuse
involuntary manslaughter: lewdness: willful exposing of the or justification.
killing of another as a result of genitals of one person to another
gross negligence or recklessness in a public place for purposes of masturbation for hire: crime
or during the commission of an sexual arousal or gratification. of stimulating the genitals of
unlawful act. another.
libel: a civil action for words that
harm an individual’s reputation. material support to a foreign
irresistible impulse test:
terrorist organization:
mental disease causes the living off prostitution: being providing material support or
defendant to lose the ability to knowingly supported in whole or resources to a foreign terrorist
choose between right and wrong in substantial part by the proceeds organization or attempt or
and to avoid engaging in criminal of prostitution. conspiracy to do so.
acts.
loitering: standing in public material support to a
joint possession: several with no apparent purpose. terrorist: providing support
individuals exercise dominion and or resources or concealing the
control over an object. magistrate: a lawyer who serves
nature, location, source, or
an eight-year term in a U.S.
ownership of material support or
justifiable homicide: murder is district court who issues search
resources knowing or intending
justified under the circumstances. warrants, conducts preliminary
that the material is to be used in
This includes self-defense, police hearings, and rules on pretrial
terrorist acts.
use of deadly force, and the death motions.
penalty. mayhem: depriving another
mail fraud: knowing and
individual of a member of his
justification: a defense based on intentional participation in
or her body or disfiguring or
the circumstances of a criminal act. a scheme or artifice intended
rendering it useless.
to obtain money or property
keeping a place of through the use of the mail to medical marijuana: marijuana
prostitution: the crime of using execute the scheme. allowed under state law for use
a building for prostitution. based on medical necessity.
majority opinion: the decision
kidnapping: the unlawful, of a majority of the judges on a mens rea: the mental element of
nonconsensual, intentional, multiple-judge panel. a crime.
and forcible asportation of an
make my day laws: statutes mere presence rule: an
individual.
that authorize any degree of force individual’s presence at the scene
knowingly: awareness that against a trespasser who uses or of a crime generally does not
conduct is practically certain to threatens to use even slight force satisfy the actus reus requirement
cause a result or awareness that against the occupant of a home. for accomplice liability.
circumstances exist. minimum level of scrutiny
mala in se: crimes that are
inherently evil. test: law presumed constitutional
larceny: trespassory taking and
so long as reasonably related to a
carrying away of the personal mala prohibita: crimes that are valid state purpose.
property of another with the not inherently evil.
intent to permanently deprive the misappropriation doctrine:
individual of possession of the malice aforethought: an using inside information to trade
property. intent to kill with ill will and on the stock market.
Glossary 391
misdemeanor: punishable by the commission of a crime will standards, appeals to the prurient
less than a year in prison. be held liable as an accomplice interest in sex. Sex is portrayed in
for the crime he or she aided a patently offensive way and lacks
misdemeanor manslaughter:
and abetted as well as for crimes serious literary, artistic, political,
killing during the course of
that are the natural and probable or scientific value when taken as
a misdemeanor punished as
outcome of the criminal conduct. a whole.
involuntary manslaughter.
necessity defense: a criminal obstruction of justice:
misprision of a felony:
act is justified when undertaken purposely obstructing, impairing,
knowledge a felony was
to prevent an imminent, or perverting the administration
committed; failure to notify the
immediate, and greater harm. of justice by force, violence,
authorities of the crime; and
physical interference, obstacle,
taking affirmative steps to conceal negligent manslaughter: breach of official duty, or any
the crime, such as destruction of negligent manslaughter arises other unlawful act or attempts to
evidence. when an individual commits undertake these acts.
mistake of fact: defense based an act that he or she is unaware
on mistake of fact that negates creates a high degree of risk of Occupational Safety and
a specific criminal intent or human injury or death under Health Act (OSHA): a federal
knowledge or purpose. circumstances in which a law protecting workplace safety.
reasonable person would have
mistake of law: an error of law, been aware of the threat. Office of National Drug
with isolated exceptions, is not a Control Policy (ONDCP):
defense. negligently: a failure to be part of the Executive Office
aware of a substantial and of the President of the United
mitigating circumstances: unjustifiable risk that constitutes a States, established by the Anti–
factors that may reduce or gross deviation from the standard Drug Abuse Act of 1988, that
moderate the sentence of a of care that a reasonable person directs the efforts of the various
defendant convicted at trial. would observe in the actor’s federal agencies concerned with
situation. narcotics, coordinates the state
M’Naghten test: a disease or
defect of the mind that results in and national efforts to combat
nolo contendere: a plea
an individual not knowing what drugs, and sponsors national
that has the legal effect of a
he or she was doing was right or antinarcotics media campaigns.
plea of guilty, which does not
wrong or not knowing what he or constitute an admission of guilt official misconduct: corrupt
she was doing. in proceedings outside of the behavior by a government officer
Model Penal Code: an immediate trial. in the exercise of the duties of
influential criminal code drafted his or her official responsibilities
nondeadly force: use of
by prominent academics, that may entail malfeasance,
physical force or a weapon that
practitioners, and judges affiliated misfeasance, or nonfeasance.
is not likely to cause death or
with the American Law Institute serious injury. omission: failure to act or to
to encourage state legislatures to
intervene to assist another.
adopt a uniform approach to the nullum crimen sine lege,
criminal law. nulla poena sine lege: no crime original jurisdiction: the first
without law, no punishment court to hear a case.
money laundering: financial
without law.
transaction involving proceeds or overbreadth: a statute that is
property derived from unlawful objective test for unconstitutionally broad and
activity. intervention in defense of punishes both unprotected speech
others: a person intervening in or conduct and protected speech
motive: the underlying reason
defense of others may intervene or conduct.
that explains or inspires an
where a reasonable person would
individual to act.
believe a person is in need of overt act: an overt act in
murder: killing of another with assistance. furtherance of an agreement is
malice aforethought and without required under most modern
excuse or justification. obscenity: description or conspiracy statutes.
representation of sexual conduct
natural and probable that, taken as a whole, by pandering: encouraging and
consequences doctrine: a the average person, applying inducing another to remain a
person encouraging or facilitating contemporary community prostitute.
parental responsibility laws: plurality requirement: a promoting prostitution:

statutory rule that parents are conspiracy requires an agreement aiding or abetting prostitution.
responsible for the criminal acts between two or more parties.
of their children. prompt complaint: a rape
police power: duty to protect victim at common law was
parties to a crime: individuals the well-being and tranquility of required to lodge an immediate
liable for assisting another to the community. report of a rape.
commit a crime.
possession: physical control over prosecutrix: the victim
per curiam: an opinion of an property with the ability to freely or complainant in a rape
entire court without any single use and to enjoy the property. prosecution.
judge being identified as the
author. possession with intent to prostitution: soliciting or
distribute: possession of a engaging in sexual activity in
perfect self-defense: an exchange for money or other
controlled substance with the
honest and reasonable belief that consideration.
intent to sell or transfer the
constitutes a complete defense to
narcotic.
a criminal charge. proximate cause: the legally
precedent: a judicial opinion responsible cause of a criminal
perjury: knowledge of a false harm and that may involve policy
that controls the decision of a
statement made under oath and considerations.
court presented with the same
material to the proceedings.
issue. A court may conclude that
proximate cause theory of
persuasive authority: a a precedent does not fully fit
felony murder: a felon is liable
decision that a court may consult the case it is adjudicating and
for all foreseeable results of the
to assist in a judgment that does distinguish the case before it from
felony.
not constitute binding authority. the existing precedent.
public indecencies: public
petit larceny: a minor larceny, preemption doctrine: federal drunkenness, vagrancy, loitering,
typically involving the taking law is superior to state law in panhandling, graffiti, and
of property valued at less than a areas reserved to the national urinating and sleeping in public.
designated monetary amount. government.
petitioner: an individual filing public intoxication: being
premeditation and drunk in public, a misdemeanor
a collateral attack on a verdict deliberation: the standard for
following the exhaustion of direct offense.
first-degree murder involving
appeals. planning and reflecting on a public welfare offenses:
petty misdemeanor: killing. Premeditation may occur regulatory offenses carrying fines
punishable by less than six instantaneously. that typically do not require a
months in prison. criminal intent.
preparation: acts taken to
physical proximity test: an prepare for committing a crime. pump and dump: spreading
act constituting an attempt must false information about a
be physically proximate to the presumption of innocence: an company to drive up the stock
completion of the crime. individual is presumed to be not price.
guilty, and the burden is on the
pimping: procuring a prostitute government to establish guilt. purposely: a conscious intent to
for another. cause a particular result.
principals in the first degree:
Pinkerton doctrine: a common law term for the actual rape shield laws: the
conspirator is liable for all perpetrators of a crime. prosecution may not introduce
criminal acts taken in furtherance evidence relating to the victim’s
of the conspiracy. principals in the second sexual relations with individuals
degree: common law term for other than the accused and may
plurality opinion: a judicial individuals who are present at not introduce evidence pertaining
opinion that represents the views the crime scene and assist in the to the victim’s reputation for
of the largest number of judges crime. chastity.
on court, although short of a
majority. The plurality opinion privacy: the constitutional rape trauma syndrome:
is typically combined with a right to be free from unjustified a psychological and medical
concurring opinion to constitute governmental intrusion into the condition common among
the court majority. sphere of personal autonomy. victims of rape.
Glossary 393
rational basis test: a law is herself and ordered the person to in a statute prior to the time that
presumed valid so long as it is stop.” the individual committed the act.
reasonably related to a valid state
respondent: an individual sabotage: during a time of
purpose.
against whom a collateral attack is war or national emergency, the
reasonable person: the ideal directed. willful injury to war material
type of the balanced and fair or premises or utilities with the
responsive intervening
individual. intent to injure, interfere with, or
act: a defendant’s criminal act
obstruct the United States or any
reasonable resistance: leads to an act undertaken by
associate nation in preparing for
resistance to rape that is the victim in reaction to the
or carrying out the war or defense
objectively reasonable under the threat. An unforeseeable and
activities. During peacetime,
circumstances. abnormal responsive act limits the
sabotage requires an intent to
defendant’s criminal liability.
rebuttal: the defense case at injure, interfere with, or obstruct
trial. result crime: requires that the the national defense of the United
act cause a very specific harm and States.
recantation: occurs when,
requires a specific intent.
in the same “continuous” Sarbanes-Oxley Act: a securities
proceeding, an individual states retreat: withdrawal from a fraud statute that requires
that an earlier statement is false. conflict while indicating a desire corporate executive officers to
The recantation must take place to avoid a confrontation. certify that corporate financial
before the perjury “substantially statements are accurate.
retreat to the wall: obligation
affected the proceedings” and
to withdraw as fully as possible Second Amendment:
before it became manifest “that
before resorting to self-defense. an amendment to the U.S.
the falsification was or would be
Constitution that protects the
exposed.” RICO: Title IX of the Organized right of individuals to “keep and
Crime Control Act of 1970, the bear ams.”
receiving stolen property:
Racketeer Influenced and Corrupt
receiving stolen property knowing
Organizations Act, enacted second-degree murder:
it to be stolen with the intent to
to counter the infiltration of intentional killing of another with
permanently deprive the owner of
legitimate businesses engaged in malice aforethought.
the property.
interstate commerce by organized
sedition: any communication
reception statute: a state crime.
intended or likely to bring about
receives the common law as an
riot: group disorderly conduct by hatred, contempt, or disaffection
unwritten part of a state’s criminal
three or more persons. with the constitution or the
law.
government.
robbery: the taking of the
recklessly: conscious disregard
personal property from an seditious conspiracy: an
of a substantial and unjustifiable
individual’s person or presence by agreement to overthrow or
risk that constitutes a gross
violence or intimidation. destroy a government by force.
deviation from the standard of
conduct that a law-abiding person Romeo and Juliet laws: seditious libel: writing intended
would observe in the defendant’s laws that recognize that young or likely to bring about hatred,
situation. people will engage in sexual contempt, or dissatisfaction
experimentation and that with the constitution or the
recklessness: an individual is
statutory rape should not be government.
personally aware that his or her
a crime where the parties are
conduct creates a substantial risk seditious speech: verbal
roughly the same age, or it should
of death or serious bodily harm. communications intended or
be punished less severely.
likely to bring about hatred,
resist to the utmost: at
rout: three or more persons take contempt, or disaffection with the
common law a rape victim
steps toward the creation of a riot. constitution or the government.
was required to demonstrate a
determined resistance to the rape. rule of four: four Supreme self-defense: a justification
Court justices are required to vote defense that recognizes the right
resisting arrest: knowingly
to hear a case. of an individual to defend him- or
or intentionally fleeing from a
herself against an armed attack.
law enforcement officer after the rule of legality: an individual
officer has by “visible or audible may not be punished for an act sexual assault: assault that
means . . . identified himself or that was not clearly condemned involves compelling another
person to participate in a stand your ground rule: no substantive criminal law:

sexual act without consent, requirement to retreat. specific crimes and defenses and
by threatening or coercing the general principles.
other person, by placing the stare decisis: precedent.
other person in fear of imminent Supremacy Clause: the clause
status: a “characteristic” or a in the U.S. Constitution that
bodily injury, by substantially
“condition” or “state of being.” provides that federal laws take
impairing the ability of the
The rule is that you may not be precedence over state laws.
other person through drugs or
criminally punished for “who you
intoxicants without his or her symbolic speech: conduct
are”; you may be held liable only
knowledge or against his or her may be protected under the First
for “what you do.”
will, or when the victim is below a Amendment where there is an
statutorily designated age and the status offense: offense based intent to convey a particularized
perpetrator is above a statutorily on personal characteristics or message and there is a strong
designated age. condition rather than conduct likelihood that the message will
sexual battery: “touching that constitutes cruel and unusual be understood by observers.
against the will of the person punishment.
tactical retreat: an individual
touched” for the “specific statutory rape: strict liability withdraws from a conflict while
purpose of sexual arousal, sexual offense of intercourse with an intending to continue the
gratification or sexual abuse.” underage individual. physical conflict.
Sherman Antitrust Act of tampering with evidence:
1890: criminal punishment strict liability offense: a crime
that does not require a criminal knowingly and intentionally
of contracts, combinations, removing, altering, concealing, or
and conspiracies in restraint of intent.
destroying evidence to be offered
interstate commerce. strict scrutiny test: the state in a present or future official
simulation: creation with intent has the burden of demonstrating proceeding.
to defraud of false objects, such as that a law employing a racial or
ethnic classification is strictly tangible property: physical
antique furniture.
necessary to accomplish a valid property including personal
social host liability laws: objective. property and real property.
liability for serving or providing Distinguished from intangible
alcohol to minors in the event of subornation of perjury: property.
an accident or injury. intentionally inducing another
terrorism transcending
solicitation: a written or person to testify under oath
national boundaries: terrorism
spoken statement in which an knowing that the testimony
occurring partly within and partly
individual intentionally advises, constituted perjury. The crime
outside of the United States.
requests, counsels, commands, is complete once an individual
hires, encourages, or incites solicits another person to commit theft statutes: states have
another person to commit a crime perjury. adopted consolidated laws
with the purpose that the other punishing larceny, embezzlement,
substantial capacity test: and false pretenses.
individual commit the crime. a person is not responsible for
solicitation for prostitution: criminal conduct, if at the time tippees: individuals who receive
requesting another person to of such conduct, as a result of insider information.
engage in an act of prostitution. mental disease or defect, he or she
tippers: individuals who provide
lacks substantial capacity.
specific intent: a mental insider information.
determination to accomplish a substantial step test: the
tort: civil action for injury to
specific result. Model Penal Code approach
an individual or to his or her
to determining attempt. There
sports bribery: offering of a property.
must be a clear step toward the
bribe to influence a sporting event
commission of a crime that is torture: inflicting great bodily
or accepting such bribes.
not required to be immediately injury upon another person
stalking: following another proximate to the crime itself. with the intent to cause cruel or
person or placing another person The act must be committed extreme pain and suffering for
under surveillance, creating a under circumstances strongly the purpose of revenge, extortion,
reasonable fear of immediate or corroborative of an intent to or persuasion, or for any sadistic
future bodily harm. commit a crime. purpose.
Glossary 395
trade secret: confidential to engage in conduct likely to criminal act that requires the
information that a business relies cause public alarm. involvement of two persons
on for a competitive advantage. cannot constitute a conspiracy.
uttering: circulating or using a
trademark: a specific word, forged document. wheel conspiracy: a conspiracy
phrase, symbol, or logo used to in which a single individual or
label a commercial product and vagrancy: wandering the street individuals serve as a hub that is
to distinguish the product from with no apparent means of connected to various individuals
competitors. earning a living. or spokes.
transferred intent: the vehicular manslaughter: white-collar crime: crimes
intent to harm one individual is killing resulting from the grossly committed by an individual
transferred to another. negligent operation of a motor of high status in the course of
vehicle or resulting from driving his or her occupation. The U.S.
Travel Act: interstate or while intoxicated (DWI). Justice Department defines white-
foreign travel or use of the mail collar crime as an illegal act that
or of a facility in interstate or vicarious liability: holding an
individual or corporation liable employs deceit and concealment
international commerce with the rather than the application of
intent to distribute the proceeds for a crime committed by another
based on the nature of the force to obtain money, property,
of any specified unlawful activity or service or to avoid the
or violence or to promote a relationship between the parties.
payment or loss of money or to
specified unlawful activity and secure a business or professional
violation: a minor crime
thereafter to commit or attempt advantage.
punishable by a fine and not
to commit a crime.
subject to imprisonment. Also
called an infraction. willful blindness: knowledge
treason: levying war or giving is imputed to individuals who
aid and comfort to the enemy. consciously avoid awareness
void for vagueness: a law
trial de novo: a new trial before violates due process that fails to in order to avoid criminal
an appellate court. clearly inform individuals of what responsibility.
acts are prohibited and/or fails to
trial transcript: the written establish clear standards for the wire fraud: knowing and
record of trial proceedings. police. intentional participation in
a scheme or artifice intended
true man: an individual without voluntary intoxication: to obtain money or property
fault who is able to rely on self- defendant not held liable for an through the use of interstate wire
defense. offense involving “knowledge communication.
or purpose.” Increasingly not
true threat: threat of recognized as a defense. withdrawal in good faith:
bodily harm directed against individuals involved in a fight
an individual or a group of voluntary manslaughter: may gain the right of self-defense
individuals. instantaneous killing of another by clearly communicating that
in the heat of passion in response they are retreating from the
two-witness rule: rule to adequate provocation without struggle.
providing that a conviction for a “cooling of blood.”
perjury is required to be based on withdrawal of consent: an
the testimony of two witnesses or voyeurism: obtaining sexual individual who initially consents
must be based on the testimony gratification from viewing another to sexual penetration may change
of one witness and supporting individual’s sex organs or sexual his or her mind.
(corroborating) evidence such as a activities.
confession or a document. year-and-a-day rule: common
weapons of mass destruction: law requirement that is being
unilateral: an individual toxic or poisonous chemical abandoned by many states that
with the intent to enter into a weapons, weapons involving limits liability for homicide to a
conspiratorial agreement is guilty biological agents, or weapons year and a day.
regardless of the intent of the releasing radiation or radioactivity
other party. at a level dangerous to human life zero tolerance laws: traffic laws
or explosive bombs. prohibiting individuals under
unlawful assembly: a gathering twenty-one from driving with
of at least three individuals for the Wharton’s Rule: an agreement any measurable amount of blood
purpose of engaging or preparing by two persons to engage in a alcohol.
Case Index
Alvarado v. State, 60 Commonwealth v. Cass, 171

Arizona v. United States, 8, 364 Commonwealth v. Cordeiro, 80
Atwater v. Lago Vista, 277 Commonwealth v. Gilliam, 95
Commonwealth v. Kendall, 128
Banks v. State, 285 Commonwealth v. Kerry, 95
Batin v. State, 213 Commonwealth v. Penn Valley Resorts, Inc., 246–247
Baxter v. State, 161 Commonwealth v. Pestinikas, 56
Baze v. Rees, 41 Commonwealth v. Schnopps, 155
Belton v. State, 113 Commonwealth v. Vieira, 80
Benton v. Maryland, 30 Commonwealth v. Washington, 342
Bernard v. Smith, 341 Cox v. Louisiana, 132
Berry v. Superior Court, 164 Craig v. State, 56
Bloom v. Illinois, 343 Cramer v. United States, 351–352
Board of Education of Independent School District No. 92 Cruzan v. Director, Missouri Department
of Pottawatomie County v. Earls, 318 of Health, 172
Boddie v. United States, 320–321
Bowers v. Hardwick, 37 D’Aquino v. United States, 352
Brandenburg v. Ohio, 31 Davila v. State, 342
Bronston v. United States, 331–332 DeJonge v. Oregon, 34
Brown v. Board of Education, 26 Dennis v. United States, 353
Brown v. Entertainment Merchants Association, 289 Diamond v. Oreamuno, 252
Brown v. Plata, 41 DiGiacinto v. Rector and Visitors of George Mason
Brown v. State, 186 University, 45–46
Browne v. People, 82 District of Columbia v. Heller, 39–40
Bruce v. Commonwealth, 232 Dixon v. State, 230
Bryant v. State, 67 Dobbs v. State, 345–346
Dorsey v. United States, 310
Caetano v. Massachusetts, 40 Duncan v. Louisiana, 30
Calder v. Bull, 23 Durkovitz v. State, 62
Campbell v. State, 166
Carey v. Population Services International, 37 Eaton v. City of Tulsa, 343
Carrier’s Case, 209 Eisenstadt v. Baird, 37
Carter v. Commonwealth, 183, 212 Ellyson v. State, 230
Chaplinsky v. New Hampshire, 29–30 Elonis v. United States, 21, 31
Cheek v. United States, 132 Employment Division v. Smith, 35
Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 35 Enmund v. Florida, 85
City of Chicago v. Morales, 282 Esteban v. Commonwealth, 66
City of Liberal, Kansas v. Vargas, 259 Ewing v. California, 43
Coates v. Cincinnati, 24
Coker v. Georgia, 42, 156 Fain v. Commonwealth, 51
Cole v. State, 202 Faison v. State, 199
Commonwealth v. Azim, 103 Farmer v. State, 312
Commonwealth v. Berkowitz, 189 Feiner v. New York, 31
Commonwealth v. Campbell, 166 Fiske v. Kansas, 30
397
Gallo v. Acuna, 281 Lee v. State, 239–240

Garnett v. State, 193 Lockyer v. Andrade, 43
Gebardi v. United States, 106 Lopez v. New York Police Department, 280
George T. v. California, 34 Louisiana ex rel. Francis v. Resweber, 41
Gideon v. Wainwright, 30 Loving v. Virginia, 26
Girouard v. State, 169 Lund v. Commonwealth, 261
Glossip v. Gross, 42
Goldberg v. State, 192 Malloy v. Hogan, 30
Gonzales v. Carhart, 37 Mapp v. Ohio, 30
Gonzales v. Oregon, 160 McDonald v. Chicago, 30, 39–40
Gonzalez v. O Centro Espirita, 314 Messina v. State, 226
Gonzalez v. Raich, 313 Michael M. v. Superior Court, 27
Gorin v. United States, 355 Midgett v. State, 162
Graham v. Florida, 42–43 Miller v. Alabama, 43
Grayned v. Rockford, 24, 34 Miller v. California, 31, 288
Greenberg v. United States, 343 Miller v. State, 131, 147
Gregg v. Georgia, 42 Missouri v. McNeely, 298
Griswold v. Connecticut, 36 Moler v. State, 121
Montana v. Egelhoff, 124
Harshaw v. State, 135 Moore v. Madigan, 40
Harwell v. State, 286 Morissette v. United States, 65
Hearn v. City of Overland Park, 290 Muhammad v. Commonwealth, 362
Hoffman Estates v. Flipside, 317
Holder v. Humanitarian Law Project, 359–360 National Treasury Employees Union
Holt v. Hobbs, 35 v. Von Raab, 318
Hranicky v. State, 62 Nebraska v. Metzger, 25
Hurst v. Florida, 42 New York Times v. Sullivan, 31
Hurston v. State, 220 New York v. Ferber, 32, 288
Hutto v. Davis, 311
Obergefell v. Hodges, 27
In re Cesar, 275 Oregon v. Gonzalez, 8
In re C.R.M., 66 Owen v. State, 162
In re Gloria, 87
In re Oliver, 30 Page v. State, 326
In re Quinlan, 172 Papachristou v. City of Jacksonville, 25, 279
In re Ryan, 34 People v. Aguilar, 199
In the Interest of M.T.S., 189 People v. Armitage, 70
People v. Beardsley, 55
Jackson v. Commonwealth, 67 People v. Burroughs, 165
J.B.A. v. State, 276 People v. Burton, 56
John Bad Elk v. United States, 143 People v. Carradine, 130
Jones v. City of Los Angeles, 281 People v. Carreon, 317
Jones v. United States, 57 People v. Cervantes, 72
Joyce v. City and County of San Francisco, 280 People v. Chessman, 199
People v. Conley, 60
Katz v. United States, 38 People v. Danielak, 335
Keeler v. Superior Court, 7, 171 People v. Daniels, 199
Kennedy v. Louisiana, 42, 185 People v. Davis, 171
Kent v. United States, 125 People v. Decina, 51
Kinchion v. State, 166 People v. Dlugash, 96
Klopfer v. North Carolina, 30 People v. Dominguez, 177
Kolender v. Lawson, 25, 279 People v. Garsparik, 212
Kotteakos v. United States, 105 People v. Hampton, 200
Kyllo v. United States, 38 People v. Hoard, 203
People v. Hua, 302
Lambert v. California, 132 People v. John Z., 193
Lawrence v. Texas, 38 People v. Johnson, 109–110
Le Barron v. State, 98 People v. Kevorkian, 161
Case Index 399
People v. Kissner, 335 Staples v. United States, 65

People v. Lauria, 104 State v. Alvarado, 51
People v. Lovercamp, 340 State v. Anderson, 139
People v. Martino, 53 State v. Barker, 80
People v. Mayberry, 190 State v. Basting, 180
People v. Mehserle, 173–175 State v. Bellamy, 82
People v. Michael S., 128 State v. Brown, 130
People v. Miller, 92 State v. Butler, 299
People v. Minkowski, 186 State v. Caldwell, 57
People v. Newton, 51 State v. Cashen, 58
People v. Nicholas Y., 238 State v. Coauette, 180
People v. Oliver, 56 State v. Colbath, 194
People v. Puesan, 262 State v. Cotton, 100
People v. Rizzo, 94 State v. Crenshaw, 118
People v. Rubacalba, 308 State v. Curtis, 91
People v. Saavedra-Rodriguez, 70 State v. Damms, 96
People v. Saephanh, 101 State v. Davidson, 163
People v. Schmies, 70 State v. Davis, 180
People v. Scott, 64 State v. DeJesus, 137
People v. Stamp, 164 State v. Ducheneaux, 128
People v. Stanfield, 63 State v. Eaton, 51
People v. Staples, 97 State v. Ellis, 185
People v. Travers, 85–86 State v. Far West Water & Sewer Inc.,
People v. Unger, 128–129, 339 266–268
People v. Upshaw, 290–292 State v. Fierro, 172
People v. Wilhelm, 194 State v. Floyd, 335
Picou v. Gillum, 38 State v. Forrest, 160
Pinkerton v. United States, 106 State v. Fuelling, 62
Pointer v. Texas, 30 State v. Gargus, 72–74
Pottinger v. City of Miami, 280 State v. Geiger, 344
Powell v. Texas, 54, 297 State v. Glass, 96
State v. Harrison, 307
Ratzlaf v. United States, 260 State v. Holt, 233
R.A.V. v. St. Paul, 32 State v. Jones, 203–204
Regina v. Saunders & Archer, 63 State v. Jordan, 83
Rex v. Bazeley, 212 State v. Kargar, 149
Rex v. Higgins, 93, 98 State v. King, 143
Rex v. Scofield, 93 State v. K.R.L., 126
Reynolds v. United States, 35 State v. Lamy, 171
Robinson v. California, 30, 43, 54 State v. Linscott, 81
Roe v. Wade, 37, 171 State v. Loge, 66
Rogers v. State, 300 State v. Mally, 56
Roper v. Simmons, 42 State v. Norman, 136
Ross v. State, 98 State v. Owen, 298–299
Roth v. United States, 287 State v. Patterson, 49
State v. Pelham, 71
Safford Unified School District v. Redding, 318 State v. Pike, 119
Sampson v. State, 161 State v. Plueard, 149–151
Scott v. Sandford, 28 State v. Preslar, 71
Sherman v. United States, 144–146 State v. Ramsdell, 336
Sherron v. State, 84 State v. Robinson, 87–88
Shoultz v. State, 336 State v. Saad, 330
Skinner v. Railway Labor Executives’ Association, 318 State v. Salin, 126
Smith v. Doe, 188 State v. Sanborn, 62
Sonnier v. State, 221 State v. Schroeder, 136
Sorrells v. United States, 144, 146 State v. Sherer, 178
Staley v. State, 133 State v. Sims, 298
Stanley v. Georgia, 37 State v. Smith, 308
State v. Sophophone, 167 United States v. Johnson, 260

State v. Squires, 299 United States v. Jones, 38, 340
State v. Stanko, 25 United States v. Kabat, 354
State v. Stanley, 327 United States v. Lindh, 349
State v. Stephen F., 195 United States v. Local 560 of the International
State v. Stinton, 232 Brotherhood of Teamsters, 265
State v. Thomas, 83 United States v. Lopez, 8
State v. Tomaino, 86 United States v. Lori Drew, 263
State v. Ulvinen, 80 United States v. Lucien, 256
State v. Walden, 80 United States v. Main, 69
State v. Williams, 62 United States v. McGovern, 223
Stogner v. California, 24, 188 United States v. Miles, 256
Stowell v. People, 230 United States v. Miller, 39
Strauder v. West Virginia, 26 United States v. Mohammed Zaki Amawi, 368–370
United States v. Moreno, 129
Tennessee v. Garner, 142 United States v. Nickels, 333
Terminello v. Chicago, 31 United States v. O’Hagan, 252
Texas v. Johnson, 32 United States v. Park, 245
Thomas v. State, 213 United States v. Peoni, 80
Thompson v. Oklahoma, 42 United States v. Stevens, 290
Tison v. Arizona, 85 United States v. Sun Diamond Growers, 327
Trop v. Dulles, 41 United States v. United Mine Workers of America, 343
United States v. Ursery, 318
United States v. Alexander, 149 United States v. Walli, 354
United States v. Ali, 344 United States v. Walters, 255
United States v. Alvarez, 207, 215 United States v. Williams, 334
United States v. Azzarelli Construction Co. and John F. United States v. Windsor, 27
Azzarelli, 257
United States v. Bailey, 61, 339 Vacco v. Quill, 161
United States v. Baldwin, 256 Velazquez v. State, 71
United States v. Biocic, 27 Vernonia School District 47J v. Acton, 318
United States v. Black, 54 Village of Newburgh Heights v. Moran, 295
United States v. Brown, 23, 103 Virginia v. Black, 34
United States v. Bruno, 105
United States v. De La Torre, 307 Washington v. Glucksberg, 161
United States v. Dossie, 311 Washington v. Texas, 30
United States v. Dotterweich, 245 Watts v. United States, 31
United States v. Duff, 255 West Virginia v. Barnette, 32
United States v. Duran, 97, 120 Westbrook v. Alaska, 26
United States v. Eichman, 33 Whatley v. State, 271
United States v. Falcone, 104 Wheeler v. Goodman, 53
United States v. Fountain, 77 Whitner v. State, 318–319
United States v. Franklin-El, 257 Williams v. Garcetti, 87
United States v. Garcia, 107 Williams v. State, 336
United States v. Goodman, 256 Wisconsin v. Mitchell, 33
United States v. Gupta, 266 Wolf v. Colorado, 30
United States v. Hamilton, 71 Woodie v. Campbell, 323
United States v. Jackson, 243, 260
United States v. Jenkins, 255 Yates v. United States, 353
Subject Index
Abandonment of attempt, 97–98, 111 of larceny, 209

Abduction of children, 200 of murder, 158
Abortion, 171 of rape, 188–190
Abuse excuse, 137 of receiving stolen property, 219
Academic cheating, 218–219 of robbery, 224–225
Access device fraud, 259, 269 of solicitation, 99
Accessory after the fact of treason, 351
affirmative act requirement for, 82–83 of trespass, 233
common law regarding, 82 Adequate provocation, 167–168
criminal intent requirement for, 83 Adultery, 285
definition of, 78 Affirmative consent, 190–191
elements of, 82–83 Affirmative defenses
felony and, 82, 84 abandonment, 97–98
hindering apprehension or prosecution, 83 definition of, 114
knowledge requirement for, 82 excuses. See Excuses
Model Penal Code view of, 83–84 justifications. See Justifications
modern view of, 83 overview of, 114–115
punishment of, 84 theft, 217
requirements for, 84 “Affluenza” defense, 300–301
Accessory before the fact, 78 Age, lack of capacity defenses and, 124–125
Accomplice liability Agency theory of felony murder, 166
actus reus of, 79–80, 88 Agent Orange/post-traumatic stress syndrome
co-felons and, 166 defense, 149
mens rea of, 80–81, 88 Aggravated arson, 235
natural and probable consequences doctrine, 81 Aggravated assault, 181–182
solicitation as, 98 Aggravated battery, 179
vicarious liability versus, 85 Aggravated burglary, 231
Accountability, 64 Aggravated contempt, 343
Acquaintance rape, 185 Aggravated murder, 161–162
Acquittal, motion for judgment of, 114 Aggravated rape, 185, 188
Actual possession, 58, 307–308 Aggravated robbery, 225
Actus reus. See also Criminal act Aggressive panhandling, 280
of accomplice liability, 79–80, 88 Aggressor, 134
of attempt, 94–95 Air piracy, 358
components of, 50 Alabama, 169, 171
of conspiracy, 103 Alaska, 26, 314
of criminal mischief, 237–238 Alcohol
definition of, 3, 49, 52 deaths caused by, 299
of false imprisonment, 201 drinking age for consuming, 296
of false pretenses, 214–215 driving under the influence of, 297–299, 321
of forgery, 222 public intoxication, 297
of homicide, 158 Alcoholism
of kidnapping, 199 description of, 123
401
as disease, 297 elements of, 181

driving and, 297–299 Model Penal Code, 182
juveniles and, 296–297 sexual, 187–188. See also Rape
summary of, 321 simple, 182
Alibi, 114 summary of, 204
Alien and Sedition Acts, 352 Assembly
Alito, Samuel, 40 freedom of, 34
Alter ego rule, 138 unlawful, 275–276
Amendments, of U.S. Constitution. See specific Assets forfeiture, 317–318
amendment Assisted suicides, 160–161
American bystander rule, 55–59 Assumption of duty, 56
American Law Institute, 7, 119–120 Attempt
American rule for resistance to an unlawful arrest, abandonment of, 97–98, 111
143 actus reus of, 94–95
Animal cruelty, 32, 290 common law recognition of, 93
Animal Welfare Act, 290 complete, 92, 97
Anti-Drug Abuse Act description of, 91–92
of 1986, 305, 309 elements of, 93
of 1988, 309, 319 history of, 92–93
Antiterrorism and Effective Death Penalty Act, 356 impossible, 92, 95–96
Antitrust violations, 257–258 incomplete, 92
Apparent safety doctrine, 71 mens rea of, 94
Appeals Model Penal Code, 94–95, 111
description of, 10 physical proximity test for, 95
discretionary, 17 public policy and, 93
district court, 12 reasons for punishing, 93
Appellant, 15 substantial step test for, 94–95, 111
Appellate courts, 16 summary of, 111
Appellee, 15 Attempted assault, 181
Arizona, 124, 172, 273, 329 Attempted battery, 182
Arkansas, 135 Attendant circumstances, 50
Arraignment, 10
Arrest Bacon, Francis, 93
description of, 10 Battered child syndrome, 136–137
events after, 10 Battered spouse syndrome, 136
investigation after, 10 Battery. See also Assault
resisting, 335–336, 345–346 aggravated, 179
warrantless, 10 attempted, 182
Arson dangerous weapon, 179–180
aggravated, 235 definition of, 178
“burning” element of, 235 domestic, 196
common law requirements, 235, 241 elements of, 178–180
definition of, 235, 241 Model Penal Code, 178
to defraud, 237 present ability to commit, 181
dwelling requirement of, 235 requirements for, 182
grading of, 236 sexual, 196
mens rea of, 235 summary of, 204
Model Penal Code, 236–237 threatened, 182
requirements for, 237 Beginning of human life, 170–171
summary of, 241 Bench trial, 17
willful and malicious requirement of, 235–236 Bigamy, 285
Ashcroft, John, 8 Biker gangs, 108–109
Asportation, 209–210 Bill of attainder, 23
Assault. See also Battery Bill of Rights
aggravated, 181–182 Due Process Clause and, 28
attempted, 181 Fourteenth Amendment incorporation
in California, 181 of, 28–29
definition of, 178, 180 nationalization, 28–29
Subject Index 403
Binding authority, 18 But-for causation, 70

Biological defenses, 148 Bystander rule, 55–59
Black, Hugo, 36
Black rage defense, 148 California
Blackmail, 227, 330 aggravated battery in, 179
Blackstone, William, 2, 123, 133, 156, 185, assault statutes in, 181
227–228, 272, 330 battery in, 178
Blood alcohol content, 298, 321 “born alive” rule, 171
Bobbit, Lorena, 180 burglary statute, 230
Boggs Act of 1951, 305 carjacking statute, 227
“Born alive” rule, 171 conspiracy statute of, 102, 106
Boston Marathon bombing, 360–361 criminal code of, 7
Brain death test, 172 diminished capacity and, 122
Brainwashing defense, 148 first-degree murder standard, 159–160
Brandeis, Louis D., 35–36 kidnapping statute, 198
Brazill, Nathaniel, 124 mayhem as defined in, 180
Breach of the peace, 272 narcotics possession, 308
Breaking and entry, 228. See also Burglary preparation for crime as offense, 95
Breathalzyer test, 297, 298 prostitution statute, 284
Brennan, William, 155–156 public intoxication statute in, 297
Bribery rape statute in, 189
commercial, 328–329 stalking statute in, 183–184
common law of, 325 statutory rape law, 27
description of, 228, 324–325 Supreme Court of, 18
extortion versus, 330 vehicular manslaughter, 169
Foreign Corrupt Practices Act, 329–330, 346 “Call girl,” 283
intent of, 327 CAN-SPAM Act of 2003, 262
Model Penal Code, 326 Capital felonies, 4
punishment for, 327 Capital murder, 161
requirements of, 325–326 Cardozo, Benjamin, 104
soliciting of bribe, 326 Carjacking, 227
sports, 329 Carnal knowledge, 186
state statutes for, 326 Cartels, 304
summary of, 346 Case-in-chief, 114
Brief, 15 Castle Doctrine, 138
Broken windows theory, 278, 292 Castle Doctrine law, 139–142
Brothels, 284 Causality/causation
Burden of persuasion, 114 but-for, 70
Burden of production, 114 case examples of, 71
Burglary description of, 3, 68
aggravated, 231 individual responsibility and, 68
“breaking” element of, 228–229 intervening acts, 69–70, 72
common law definition of, 228 intervening cause, 69
definition of, 228–229 proximate cause, 69, 72
dwelling house, 230 requirements for, 72
dwelling of another, 230 Cause in fact, 68–69, 72
“entry” element of, 229–230 Cell phones, 277
intent of, 231 Certiorari, writ of, 15
Model Penal Code, 232–233 Chain conspiracy, 105, 111
need for crime of, 232 Chase, Samuel, 23
nighttime element of, 231 Cheating, 218–219
requirements for, 233 Chemerinsky, Erwin, 28
summary of, 241 Child pornography, 288
Burning Children. See also Juveniles
as arson element, 235 abduction of, 200
reckless, 236 alcoholism and, 296–297
Bush, George H.W., 303 battered child syndrome, 136–137
Bush, George W., 313 criminal intent in, 125
drug sales to, 307 Computer Fraud and Abuse Act, 262
infancy as defense, 124, 151 Computer hacking, 262
older than fourteen, 125 Computer stalking, 262
older than seven and younger than fourteen, 125 Computer tampering, 262
statutory rape, 192–193 Computer trespassing, 234, 262
younger than seven, 125 Concurrence
Choice of evils, 126–127, 152 chronological, 65
Chronological concurrence, 65 definition of, 3
Circuit courts of appeals, 12 Concurrent jurisdiction, 12
Citizen’s duty to assist law enforcement, 335 Concurring opinion, 15
Civil Asset Forfeiture Reform Act, 318 Connecticut, 324–325
Civil commitment hearing, 117 Consent
Civil contempt, 341 affirmative, 190–191
Civil forfeiture, of assets, 318 battery and, 180
Civil infractions, 277 as defense, 130–131
Civil law implied, 298
criminal law and, differences between, 2–3 rape and, 186–187
definition of, 2 withdrawal of, 193
Civil liability, 2 Consolidated statutes, 217
Clean Air Act, 249–250 Conspiracy
Clean Water Act, 249 actus reus of, 103
Clear and present danger, 31 agreement as core to, 103, 111
Code jurisdiction, 7 bilateral conception of, 104
Coercion, rape and, 187 chain, 105, 111
Coincidental intervening acts, 69–70, 72 criminal act and, 102
Collateral attack, 15 criminal objectives of, 105–106
Color of office, 324 definition of, 102, 111
Colorado, 135, 195, 313, 337 description of, 91
Combat immunity, 362 deterrence through punishing, 102
Combat Methamphetamine Epidemic Act, 316 Gebardi rule, 106
Commercial bribery, 328–329 knowledge standard of, 104
Common law mens rea of, 103–104, 111
accessory after the fact, 82 Model Penal Code, 102, 104, 107–108
adequate provocation, 167–168 overt act as proof of, 102–103, 111
arson, 235, 241 parties to, 104–105
attempt and, 92–93 Pinkerton doctrine, 104
breach of the peace, 272 plurality requirement, 104
bribery, 325 prosecutions for, 106–107, 111
burglary, 228 punishment for, 102
corpus delicti, 173 purpose standard of, 104
description of, 6 reasons for punishing, 102
kidnapping, 197 requirements for, 108
larceny, 208–209, 336 RICO Act and, 107
punishment and, 59–60 seditious, 353
states with, 7 solicitation versus, 98
year-and-a-day rule, 172–173 specific intent to further, 104
Comparative harm, 127 state statutes for, 102, 106
Compassionate Use Act of 1996, 313 structure of, 105
Competence to stand trial, 117–118 unilateral approach to, 104–105
Complete attempt, 92, 97 U.S. Supreme Court views on, 106
Compounding a crime, 336–338 Wharton’s rule, 106
Comprehensive Drug Abuse Prevention and Control wheel, 105, 111
Act of 1970, 306, 321 Constitutional democracy, 22
Comprehensive Environmental Response, Constructive intent, 60
Compensation, and Liability Act, 249 Constructive possession
Computer crime, 244, 261–263, 269 description of, 58, 209
Computer damage, 262 of drugs, 307
Subject Index 405
Consumer Financial Protection Bureau, 255 cyber, 261–263

Contemnor, 341 definition of, 2
Contempt elements of, 49–75
aggravated, 343 environmental, 244, 248–250
attachments for, 342 felony. See Felony
civil, 341 hate, 170
criminal, 341–344 inchoate. See Inchoate crimes
legislative, 344 infamous, 5
overview of, 341–342 mala in se, 4–5, 64
Contraband, 58 mala prohibita, 4–5, 64
Contract, duty created by, 56 misdemeanors, 4
Controlled prescription drugs, 304 omission as, 55–57
Controlled substances. See also Drug(s); Narcotics organized, 265–266
actual possession of, 307–308 possession, 58–59
American anti-narcotics strategy, 304–305 preparation versus perpetration of, 95
assets forfeiture, 317–318 renouncing of, 98
controlled prescription drugs, 304 reporting of, 337
crystal meth, 315–316 requirements of, 59
definition of, 304 status and, 53–54
drug paraphernalia, 307, 308, 314, 316–317 subject matter, 5
marijuana, 304–305, 312–314 tax, 261
Office of National Drug Control Policy, 305, against the state. See State, crimes against
319–320 victimless. See Victimless crimes
possession of, 307–312 white-collar. See White-collar crime
possession with intent to distribute, 307–312 Crime Control Act of 1990, 305
punishment for, 309 Crime of moral turpitude, 5
schedule of, 305–306, 321 Crime tariff, 283
sentencing for, 309–311 Criminal act. See also Actus reus
state laws, 305–307 attendant circumstances of, 50
summary of, 321 concurrence with criminal intent, 65
trafficking of, 308 conspiracy and, 102
transnational criminal organizations, 304 description of, 3
“War on Drugs,” 303–304, 321 general intent to commit, 60
Controlled Substances Act, 305, 313–314 Model Penal Code provisions, 52
Conviction, 2 predicate, 265
Cooling of blood, 168 requirements for proving, 50
Copyright, 264, 269 voluntary, 51–53
Copyright Act, 264, 269 Criminal attempt. See Attempt
Corporate liability, 245–247 Criminal charge, 10
Corpus delicti, 173 Criminal contempt
Corruption, 325 criminal law and, 343
Counterfeiting, 265 definition of, 341
Court of International Trade, 15 direct, 342–343
Court of Star Chamber, 93 indirect, 342–343
Courts of appeals punishment for, 343–344
federal, 12–14 Criminal defenses. See Defense(s)
state, 16 Criminal forfeiture, of assets, 317
Courts of general jurisdiction, 17 Criminal intent. See also Intent; Mens rea
Courts of limited jurisdiction, 17 accessory after the fact and, 83
Courts of original jurisdiction, 17 assault and, 181
“Crank,” 315 battery and, 180
Crime. See also specific crime in children younger than seven, 125
categories of, 4–5 concurrence with criminal act, 65
of cause and result, 60 constructive, 60
common law, 6 description of, 3
compounding a, 336–338 difficulty in establishing, 60
computer, 261–263, 269 general, 60–61
knowingly, 61–62 Deadly force, 137, 139

mala prohibita crimes and, 64 Death, 171–172
mental states for, 61–63 Death penalty, 41–43, 46, 314
Model Penal Code provisions, 61–63 Death With Dignity Act, 8
motive versus, 60 Deception, theft by, 216
possession and, 58 Decriminalization
punishment based on, 59 of marijuana, 312
purposely, 61–62 of prostitution, 284
recklessly, 61–62 Defendant, 2
specific, 60–61, 99, 104 Defense(s). See also Self-defense
transferred, 63–64 “affluenza,” 300–301
treason, 351 biological, 148
Criminal investigation, 9 categories of, 116
Criminal justice process consent, 130–131
constitutionalization of, 28 cultural, 149
description of, 9–11 description of, 4
Criminal law diminished capacity, 121–122, 151
civil law and, differences between, 2–3 duress. See Duress
criminal contempt and, 343 factual impossibility as, 96
international, 367–368 force. See Force
moral blameworthiness requirement for, 59 “gay panic,” 168
nature of, 2 governmental misconduct, 116
overreach of, 282–283 ignorance of the law, 132
principles of, 3–4 imperfect, 115
purposes of, 3 inherent impossibility as, 96
sources of, 5–9 insanity. See Insanity defense
substantive, 3 intoxication, 123–124, 151
Criminal mischief, 237–238, 241 justifications. See Justifications
Criminal procedure, 3 lack of capacity. See Lack of capacity
Criminal punishment. See also Punishment defenses
common law contributions to, 59 legal impossibility as, 96
status offenses and, 43 mistake of fact, 132–133, 152
Criminal statutes, 26 necessity, 115, 126–128
Criminal subculture, 283 new types of, 148–149
Criminal thoughts, 50–51 perfect, 115
Criminal trespass, 233–234, 241 prison escape, 339
Cross burning, 33–34 psychological, 148
Cruel and unusual punishment sociological, 148–149
death penalty, 41–43 Defense of Marriage Act, 27
Eighth Amendment protection against, 40 Defense of others, 138
punishment amount as, 41–43 Defense of the home, 139
punishment methods as, 40–41 Deferred Action for Childhood Arrivals, 365
status offenses and, 43 Deferred Action for Parents of Americans, 365
Cruelty to animals, 290 Defiant trespass, 233
Crystal meth, 315–316 Defraud
Cultural defense, 149 arson to, 237
Currency violations, 260, 269 intent to, 214
Curtilage, 230 DeLay, Tom, 325
Custody versus possession, 209 Dependent intervening act, 70
Cyber crime, 261–263 Depraved heart murder, 157–158, 163–164, 175
Cyberstalking, 183–184 Derivative liability, 79
Dershowitz, Alan, 147
DACA. See Deferred Action for Childhood Arrivals Desecration, 32
Dangerous weapon battery, 179–180 Determinate sentences, 309
DAPA. See Deferred Action for Parents Deterrence, 59, 102, 144
of Americans Diminished capacity, 121–122, 151
Date rape, 185 Direct criminal contempt, 342–343
Subject Index 407
Disclose or abstain doctrine, 252 Durham product test, 119, 151

Discretionary appeal, 17 Duty
Disorderly conduct, 272–275, 292 assumption of, 56
Dissenting opinion, 15 contract as basis for, 56
Distracted driving, 277 omission of, 55–57
District courts, 12–13 status and, 56
DNA testing, 340 Duty to intervene, 56
Dogs, 289–290 Dwelling house
Domestic battery, 196 arson of, 235
Domestic terrorism, 356, 370 burglary of, 230
Domestic violence, 196 Dwelling of another
Dominion and control requirement, for actual arson of, 235
possession of controlled substance, 307 burglary of, 230
Douglas, William, 29
Drag racing, 71 Earnest resistance standard, for rape, 186
Dressler, Joshua, 51, 61, 209 Economic Espionage Act, 265, 269, 355
Drinking age, 296 Eighth Amendment, 40–41
Driving Embezzlement, 212–214
alcoholism and, 297–299 Emerson, Thomas I., 29
distracted, 277 Employee larceny, 209
texting while, 277 En banc, 12
Driving under the influence, 297–299 English rule for resistance to an unlawful arrest, 143
Driving with an unlawful blood alcohol level, Entrapment
298–299, 321 as defense, 146
Drug(s). See also Controlled substances; Narcotics definition of, 144
assets forfeiture, 317–318 legal tests for, 144
Office of National Drug Control Policy, 305, objective test for, 145–146
319–320 subjective test for, 145, 147
sentencing for, 309–311 summary of, 152
state laws regarding, 305–307, 321 “Entry” element, of burglary, 229–230
summary of, 321 Environmental crimes, 244, 248–250
trafficking of, 308 Environmental defense, 148
“War on Drugs,” 303–304, 321 Environmental Protection Agency, 249
Drug cartels, 304 Equal protection, 26–27
Drug courts, 319 Equal Protection Clause
Drug Enforcement Agency, 320 analysis levels under, 27
Drug offenses, 309–311 description of, 26, 46
Drug paraphernalia, 307, 308, 314, 316–317 Equality, 325
Drug testing, 318 Equivocal conduct, 190
Drunk driving, 299 Escape, 338–340
Dual intents, 80 Espionage, 355–356, 363, 370
Dual sovereignty, 8 Establishment Clause, 35
Due process Estrich, Susan, 185
description of, 24 European bystander rule, 55
Fourteenth Amendment provisions, 40 Excessive force, 137
Due Process Clause Exclusive jurisdiction, 12
Bill of Rights and, 28 Excusable homicide, 156
protections under, 29 Excuses
DUI. See Driving under the influence abuse, 146
Duress Agent Orange/post-traumatic stress syndrome
case examples of, 128–129 defense, 149
elements of, 128 black rage defense, 148
escape because of, 339 brainwashing defense, 148
involuntary intoxication caused by, 124 cultural defense, 149
Model Penal Code, 129 definition of, 115
necessity versus, 128 diminished capacity, 121–122, 151
requirements for, 130 duress. See Duress
entrapment. See Entrapment conspiracy as, 102

environmental defense, 148 criminal justice process for, 9–10
insanity. See Insanity defense description of, 4
justifications versus, 115 first-degree, 4, 84, 200
media intoxication defense, 149 misprision of, 338
mistake of fact, 131–133 second-degree, 4, 84
mistake of law, 131–133 third-degree, 4, 84
postpartum psychosis defense, 148 Felony murder
post-traumatic stress disorder defense, 148 agency theory of, 166
premenstrual syndrome defense, 148 California Supreme Court approach to, 165
rotten social background defense, 149 criticism of, 164
urban survivor defense, 149 description of, 157, 164–166
XYY chromosome defense, 148 as first-degree murder, 160
Execution of public duties, 142–143 Model Penal Code, 166
Ex post facto laws, 22–24, 46 proximate cause theory of, 166
Express malice, 157 punishments for, 165
Expression, freedom of, 29, 46 reasons for statutes, 165
Extortion, 227–228, 262, 330, 346–347 requirements for, 166
Extrajudicial confession, 173 Female genital mutilation, 196
Extraneous factor, 96 Fencing, 219
Extraterritorial jurisdiction, 357 Fiduciary relationship, 251
Extrinsic force approach to rape, 189 Field, Stephen, 55
Eyewitness identification, 340 Field sobriety test, 298
Fields, Joseph, 351
Factual impossibility, 96, 111 Fifth Amendment
Failure to collect taxes, 261 breathalzyer test and, 298
Failure to disperse, 276–277 Due Process Clause, 26
Failure to file tax return, 261 self-incrimination rights and, 344
Fair Sentencing Act of 2010, 309 Fighting words, 30–31
False confessions, 340 First Amendment
False imprisonment, 202 freedom of expression, 29
False pretenses, 50 freedom of religion, 34–35
actus reus of, 214–215 freedom of speech. See Freedom of speech
elements of, 214 overbreadth of, 32
larceny by trick versus, 215 solicitation and, 99
mens rea of, 215 speech not protected by, 30–32
Model Penal Code, 216 summary of, 46
overview of, 214 symbolic speech, 32–33
requirements for, 216 First-degree felony
silence and, 215 accessory to, 84
False statements, 330–331 description of, 4
False tax returns, 261 kidnapping as, 200
Federal courts First-degree misdemeanor, 4
description of, 10–11 First-degree murder
exclusive jurisdiction of, 12 aggravated, 161–162
hierarchy of, 13 capital murder, 161
Federal crime of terrorism, 357 definition of, 158, 175
Federal criminal code, 6, 8 felony murder as, 160
Federal Food, Drug, and Cosmetic Act, 245 mens rea of, 159
Federal gambling laws, 303 premeditation and deliberation requirement, 157, 159
Federal government, 8, 12 punishment for, 159
Federalist Papers, 350 requirements for, 161
Federal judicial system, 12–15 First impression case, 18
Federal statutes, 8–9 Flag desecration, 32–33
Felonious restraint, 202 Flag Protection Act, 33
Felony Fleeing felon rule, 142
accessory after the fact and, 82, 84 Fleeting possession, 58
aggravated battery as, 179 Fletcher, George, 92, 115, 156
Subject Index 409
Florida Freedom of expression, 29, 46

aggravated battery in, 179 Freedom of religion, 34–35
arson statute in, 235 Freedom of speech
bribery statute, 326 description of, 29–32
Castle Doctrine law, 139–142 hate speech, 33–34
conspiracy statute of, 102 limits to, 30
criminal code of, 7 speech not protected by, 30–32
cyberstalking in, 183–184 summary of, 46
drug paraphernalia, 315 symbolic speech, 32–33
felony murder, 165 time, place, and manner restrictions on, 34
marijuana possession sentencing guidelines, 315 Free Exercise Clause, 34–35
robbery statute, 224 Free will, insanity defense and, 117
self-defense cases in, 141–142 Fuller, Joel, 81
stalking legislation in, 183 Fundamental fairness, 28
Force, in defense of others, 138 Fungicide and Rodenticide Act, 250
Force, in defense of the home, 139
Force, in self-defense “Gag order,” 342
aggressor and, 134 Gambling
Castle Doctrine law, 139–142 definition of, 301
deadly, 137, 139 federal laws regarding, 303
description of, 116, 133–138 history of, 301
excessive, 137 Internet, 302–303
Model Penal Code, 134–135 online, 302–303
necessity requirement for, 134–136 social, 302
nondeadly, 137–138, 139 state laws regarding, 302
proportionality of, 134 state revenues from, 301
proportionate, 137 summary of, 321
reasonable belief of imminent serious bodily harm Gambling Ship Act, 303
or death as requirement for, 135–136 Gaming
“Forcible compulsion,” 189 definition of, 301, 321
Forcible felony, 139 Native American-owned enterprises, 301
Foreign Corrupt Practices Act, 329–330, 346 types of, 302
Foreign terrorist organizations, material support to, Gangs, 108–109, 274–275, 281–282
358–360 Gartenstein, Stanley, 284
Forensic science inaccuracies, 340–341 “Gay panic defense,” 168
Foreseeability, 70 Gebardi rule, 106
Forgery, 221–223, 241 Gender, 27
Fornication, 285 General intent, 60–61
Fourteenth Amendment General jurisdiction, 17
Bill of Rights incorporation into, 28–29 Geneva Convention of 1949, 363
description of, 28 Genital mutilation, female, 196
Due Process Clause. See Due Process Clause Genovese, Kitty, 55–59
due process protections under, 40 Georgia
Second Amendment incorporation into, 39 aggravated assault in, 181
Fourth Amendment, 38–39 battery in, 178–179
Fraud compounding a crime statute, 337
access device, 259, 269 prostitution statute in, 285
computer use for, 262 rape reform in, 187
consent and, 131 Gerstein hearing, 10
definition of, 254 Ginsburg, Ruth Bader, 8, 27
health care, 244, 256–257, 269 Goetz, Bernard, 135–136
involuntary intoxication caused by, 124 Goldberg, Arthur, 36
mail and wire, 244, 254–255, 269 Goldman, Ron, 2
securities, 244, 251–254 Good Samaritan laws, 55
trademark, 264–265, 269 Governmental misconduct, defenses based on
Fraud in inducement, 187 description of, 116
Fraud in the factum, 186 entrapment, 144–147
Freedom of assembly, 34 Grand larceny, 211–212
Gratuity, 327 Human life

Green, Vernon, 79 beginning of, 170–171
Gross misdemeanor, 4 end of, 171–172
Guilty but mentally ill, 121 Human trafficking, 285
Gun-Free School Zones Act, 8
Gun rights, 39 Idaho, 121, 162, 201
Identity theft, 244, 258–259, 269
Habeas corpus, writ of, 10 Identity Theft and Assumption Deterrence
Hacking, computer, 262 Act, 258
Hale, Matthew, 185–186 Ignition lock, 299
Hall, Jerome, 3, 96, 123 Ignorance of the law defense, 132
Hand, Learned, 106 Ignorantia lexis non excusat defense, 132
Harassment, 194 Illegal Gambling Business Act, 303
Harm Illegal Immigration Reform and Immigrant
comparative, 127 Responsibility Act, 364
creation of, 127 Illinois, 94
Harrison Narcotics Tax Act of 1914, 304 aggravated assault in, 181
Hart, Henry M., Jr., 2 aggravated battery in, 179
Hate crime, 170 assault statutes in, 181
Hate speech, 33–34 bribery statute, 327
Hawaii, 55 burglary statute in, 230
Hawkins, Coleman, 79 compounding statute, 337
Hawkins, Gordon, 282 conspiracy statute of, 102
Health care fraud, 244, 256–257, 269 criminal contempt statutes, 344
Hearst, Patricia, 148, 198 disorderly conduct statute in, 273
Heat of passion, 167 obstruction of justice, 334
Hendricks, Leroy, 2–3 social host laws in, 296
Henry of Bracton, 92 stalking statute in, 184
Heroin, 304 withdrawal of consent laws, 193
Hinckley, John, 119 Immigration and Nationality Act of 1952, 364
Hindering apprehension or prosecution, 83 Immigration and Naturalization Service, 364
Holmes, James, 122–123 Immigration law
Holmes, Oliver Wendell, Jr., 26, 59, 166 description of, 364–365
Home, defense of the, 139 provisions of, 366–367
Homelessness, 279–281 states and, 365
Homicide. See also Murder summary of, 371
actus reus of, 50, 158 violations of, 365
depraved heart, 157–158, 163–164 Immigration Marriage Fraud Amendments, 364
excusable, 156 Immigration Reform and Control Act, 364
federal prosecution for, 158 Imminence of threatened harm, 136
felony, 157 Imperfect defense, 115
first-degree. See First-degree murder Imperfect self-defense, 134–135, 135
grading of, 158–159 Implied consent laws, 298
history of modern law of, 156 Implied malice, 157
justifiable, 156 Impossible attempt, 92, 95–96
malice aforethought, 156–157 Incapacitation, 93
malice and, 157 Incest, 285
manslaughter. See Manslaughter Inchoate crimes
mens rea of, 158–159 attempt. See Attempt
mitigating circumstances’ effect on, 162 conspiracy. See Conspiracy
overview of, 155–156 description of, 91–92
prosecution for, 158 solicitation. See Solicitation
reckless, 163 as terrorism, 357
second-degree, 157–158 Incidental contact, consent defense to, 130
state rates for, 159 Incomplete attempt, 92
types of, 156–157 Inconsistent statements, 332
Horizontal gaze nystagmus, 298 Incorporation, 28–29
Humanitarianism, insanity defense and, 117 Indecent exposure, 288
Subject Index 411
Independent intervening cause, 69 International Convention Against the Taking of

Indiana, 190 Hostages, 199
Indiana Revised Statutes of 1852, 7 International Convention on Cybercrime, 263
Indictment, 10 International Criminal Court, 368
Indirect criminal contempt, 342–343 International criminal law, 367–368
Infamous crimes, 5 International terrorism, 101–102, 356, 370
Infancy, as defense, 124, 151 International treaties, 6
Informants, 340 Internet gambling, 302–303
Information, 10 Interstate Commerce Clause, 8
Infractions, 4 Interstate domestic violence, 196
Infringement Interstate Horse Racing Act, 303
copyright, 264, 269 Interstate Wire Act, 303
trademark, 264 Intervening acts
Inherent impossibility, 96, 111 coincidental, 69–70, 72
Innocence, presumption of, 114 responsive, 69–70, 72
Insanity defense Intervening cause, 69
burden of proof for, 120 Intervention in defense of others, 138
civil commitment hearing, 117 Intimate partner violence, 136
competence to stand trial versus, 117–118 Intimidation, robbery and, 224
description of, 116–117 Intoxication
Durham product test for, 119, 151 involuntary, 124, 151
federal standard for, 120 pathological, 124
future of, 121 public, 297
irresistible impulse test for, 118–119, 151 voluntary, 123–124, 151
mental illness and, 117 Intrinsic force standard, for rape, 189
M’Naghten test, 117–119, 151 Involuntary acts, 51
not guilty by reason of insanity, 116–117 Involuntary intoxication, 124, 151
reasons for, 117 Involuntary manslaughter, 157–158, 169, 175
right-wrong test, 118 Irrebuttable presumption, 125
substantial capacity test for, 119–120, 151 Irresistible impulse test, 118–119, 151
Insanity Defense Reform Act, 120 ISIS, 101–102
Insider trading, 251–253, 269 Isolation cells, 44
Intangible property, 237
Intellectual property theft, 245, 263–265, 269 Jackson, Robert, 29, 59, 61, 103
Intent. See also Criminal intent; Mens rea Jefferson, William, 325
assault and, 181 John Hinckley Amendment, 119
battery and, 180 Joint possession, 58
bribery, 327 Judges, 17
burglary and, 231 Judicial decisions, 6
constructive, 60 Judiciary Act of 1789, 341
to defraud, 214 Jury, 10
depraved heart murder, 163 Jury trial, waiver of, 10
general, 60–61 Justice
knowingly, 61–62 citizen’s duty to assist law enforcement, 335
larceny and, 210–211 compounding a crime, 336–338
mental states for, 61–63 escape, 338–340
mistake of law and, 132 obstruction of, 334–335, 347
Model Penal Code provisions, 61–63 resisting arrest, 335–336, 345–346
perjury, 331 Justifiable homicide, 156
purposely, 61–62 Justifications
recklessly, 61–62 choice of evils, 126–127
specific, 60–61, 99, 104 consent defense, 130–131
stalking and, 183 defense of others, 138
transferred, 63–64 defense of the home, 139
treason, 351 definition of, 115
Intent-to-do-serious-bodily-harm-murder, 162 excuses versus, 115
Intermediate appellant courts, 17 execution of public duties, 142–143
Intermediate scrutiny, 27 moral forfeiture and, 115
moral interest and, 115 property of another as requirement for, 210–211

necessity defense, 126–128 requirements for, 212
public benefit and, 115 robbery versus, 223
resisting unlawful arrests, 143 shoplifting and, 212
superior interest and, 115 tangible property, 210
Juveniles. See also Children trespassory taking, 209
alcoholism and, 296–297 Larceny by trick, 214, 215
cruel and unusual punishment, 42–43 Law(s)
driving under the influence of alcohol by, 299 civil. See Civil law
life imprisonment of, 43 criminal. See Criminal law
ex post facto, 22–24, 46
Kansas, 121, 163, 172, 195 Law enforcement
Keeping a place of prostitution, 285 citizen’s duty to assist, 335
Kelling, George, 278 definite standards for, 25
Kennedy, Anthony, 215 Legal cause, 69, 72
Kevorkian, Jack, 161 Legal impossibility, 96, 111
Kidnapping Legality, rule of, 22, 46
actus reus of, 199 Legislative contempt, 344
child abduction, 200 Lethal injections, 41–42
common law of, 197 Lewdness, 285, 288
criminal act of, 199–200 Liability
definition of, 197, 200 accessory after the fact, 84
false imprisonment versus, 202 accomplice. See Accomplice liability
as first-degree felony, 200 corporate, 245–247
high-profile examples of, 198 derivative, 79
mens rea of, 199 strict, 85. See also Strict liability offenses
Model Penal Code, 200–201 vicarious, 85–86, 245–246
movement or confinement standard, 200 Libel
requirements for, 201 definition of, 31
statutes, 198–199 seditious, 352
summary of, 205 Liberation of Tigers of Tamil Eelam, 359
King, Rodney, 9 Life felony, 4
Knowingly Life imprisonment
burglary and, 230 of juveniles, 43
criminal intent and, 61–62 for torture, 180
possession of controlled substances and, 307 Life support, removal from, 71, 172
Kurdistan Worker’s Party, 359 Limited jurisdiction, 17
Lindberg, Charles, 198
Lack of capacity defenses “Lindberg Law,” 198
age, 124–125 Lindh, John Walker, 349, 362
definition of, 116 Living off prostitution, 285
diminished capacity, 121–122, 151 Locke, John, 208
insanity. See Insanity defense Loitering
intoxication, 123–124 description of, 272, 278–279
LaFave, Wayne R., 3, 7, 40, 173, 210 gang, 282
Laney, Deanna, 116 for prostitution, 284
Larceny Lord Coke, 139, 164
actus reus of, 209 Lord Denman, 105
asportation, 209–210 Lord Devlin, 283
common law, 208–209, 336 Lord Hale, 123
embezzlement versus, 213 Lord Mansfield, 93
employee, 209 Lottery, 301
examples of, 209 Louisiana, 6, 162
grades of, 211–212
grand, 211–212 Madison, James, 23, 350
intent and, 210–211 Madoff, Bernard, 253–254
mens rea of, 210–211 Magistrate, 10
petit, 211–212 Mail fraud, 244, 254–255, 269
Subject Index 413
Majority opinion, 15 Methamphetamine, 315–316

Make my day laws, 139 Michigan, 60, 187, 227
Mala in se crimes, 4–5, 64–66 Milk, Harvey, 122
Mala prohibita crimes, 4–5, 64 Minimum level of scrutiny test, 26
Malfeasance, 324 Minnesota, 55, 179
Malice, 157, 235 “Minor in possession” law, 296
Malice aforethought, 156–157, 162, 175 Misappropriation doctrine, 252
Malicious mischief, 237 Misconduct, official, 324
Malicious wounding, 180 Misdemeanor(s)
Mandatory minimum drug offenses, 309–311 accessoryship as, 79
Mann Act, 106, 285 conspiracy as, 102
Manslaughter definition of, 4
definition of, 156, 167 in first degree, 4
involuntary, 157–158, 169, 175 magistrate handling of trials for, 12
misdemeanor, 169 petty, 4
negligent, 169, 175 prostitution classification as, 285
summary of, 175 public intoxication as, 297
vehicular, 158, 169, 299 in second degree, 4
voluntary, 157–158, 167–168, 175 Misdemeanor manslaughter, 169
Marijuana, 304–305, 312–314 Misfeasance, 324
Marijuana Tax Act of 1932, 305 Misprision of a felony, 338
Marketplace of ideas, 32 Missouri, 169
Maryland, 166, 173, 193 Missouri Plan, 17
Mass transportation systems, terrorism against, 358 Mistake
Masturbation for hire, 285 of fact, 131–133, 152
Material support for terrorism, 358–360 of law, 131–133, 152
Mayhem, 180 self-defense and, 134
Media intoxication defense, 149 Mitigating circumstances, 162
Medicaid, 257 M’Naghten test, 117–119, 151
Medical marijuana, 313 Model Penal Code
Medical negligence, 71 accessory after the fact, 83–84
Mendez, Guadalupe Steven, 79 arson, 236–237
Mens rea assault, 182
of accomplice liability, 80–81, 88 attempt, 94, 111
of arson, 235 battery, 178
of attempt, 94 bribery, 326
of conspiracy, 103–104, 111 burglary, 232–233
criminal intent, 59–60 but-for causation, 70
of criminal mischief, 238 choice of evils, 126–127
definition of, 3, 49, 52, 59 commercial bribery, 328
of false pretenses, 215 compounding a crime, 337
of first-degree murder, 159 conspiracy, 102, 104, 107–108
of forgery, 222 criminal intent under, 61–63
of homicide, 158–159 criminal mischief, 237–238
of kidnapping, 199 criminal trespass, 234
of larceny, 210–211 description of, 7–8
of murder, 158–159 disorderly conduct, 274
of prostitution, 284 duress, 129
of rape, 190 embezzlement, 213–214
of receiving stolen property, 219–220 failure to disperse, 276–277
of robbery, 225 false imprisonment, 202
of sabotage, 354 false pretenses, 216
of solicitation, 99 felony murder, 166
of treason, 351 force in self-defense, 134–135
Mental illness, insanity defense and, 117 forgery, 221–223
“Mercy killing,” 160 intent under, 61–63
Mere knowledge, 80 kidnapping, 200–201
Mere presence rule, 79–80 loitering, 279
mistake of fact, 133 New Hampshire, 171, 194, 301

negligence standard, 169 New Jersey
physical proximity test, 95 arson statute in, 235
possession, 58 commercial bribery, 328
prostitution, 284, 286–287 intoxication defense, 123
prowling, 279 negligently standard in, 63
receiving stolen property, 220 retreat before use of deadly force, 138
riot, 276–277 New Mexico, 337
robbery, 226 New York
solicitation, 100 attempted assault in, 181
strict liability offenses, 65 conspiracy statute of, 102
substantial step test, 94–95, 111 criminal code of, 3
theft by deception, 216 extortion statute, 227
uttering, 221 force used in self-defense, 135–136
voluntary criminal acts, 52 perjury statute, 331
Money laundering, 244, 259–260, 269 riot statute, 276
Montana, 121, 178 sports bribery law, 329
Moral blameworthiness, 59, 131, 175 unlawful assembly statute, 276
Moral forfeiture, 115 Nichols, Terry, 12
Moral interest, 115 NICS. See National Instant Criminal Background
Morris, Norval, 282 Check System
Moscone, George, 122 Nighttime element, of burglary, 231
Motion for judgment of acquittal, 114 Nixon, Richard, 303, 320
Motive, intent versus, 60 No Electronic Theft Act, 264
Motor vehicle violations, 277 Nolle prosequi, 10
Motorcycle gangs, 108–109 Nolo contendere, 247
Municipal courts, 17 Nondeadly force, 137, 139
Municipal ordinances, 5 Nonfeasance, 324
Murder. See also Homicide North Carolina, 199
aggravated, 161–162 Not guilty by reason of insanity, 116–117
capital, 161 Notice, mistake of law and, 132
corporate liability for, 247–248 Nullum crimen sine lege, nulla poena sine lege, 22
definition of, 156
depraved heart, 157–158, 163–164, 175 Oath, 330
felony. See Felony murder Obama, Barack, 44
first-degree. See First-degree murder Objective approach to reasonable belief of serious
mitigating circumstances’ effect on, 162 bodily harm or death, 135
with premeditation and deliberation, 157 Objective test for intervention in defense of others,
second-degree, 157–158, 162–163, 175 138
state rates for, 159 Obscenity, 31, 287–288
Obstruction of justice, 334–335, 347
Narcotics. See also Controlled substances; Drug(s) Occupational Safety and Health Act, 250–251
American anti-narcotics strategy, 304–305 Office of National Drug Control Policy, 305, 319–320
Office of National Drug Control Policy, 305, Official detention, 339
319–320 Official misconduct, 324
possession with intent to distribute, 307–312 Ohio, 335, 337
Narcotics Control Act of 1956, 305 Oklahoma, 42, 166
National Highway Systems Designation Act, 299 Oklahoma City bombing, 356
National Instant Criminal Background Check Omission
System, 40 American bystander rule, 55–59
Nationalization, 28–29 as crime, 55–57
National Security Agency, 362–363 definition of, 55
Natural and probable consequences doctrine, 81 European bystander rule, 55
Necessity defense, 115, 126–128 Good Samaritan laws, 55
Negligence, 167 legal equation for, 57
Negligent escape, 338 Online gambling, 302–303
Negligent manslaughter, 169, 175 Opium, 304
Nevada, 157, 284 Order of Protection, 183
Subject Index 415
Oregon, 161 of contraband, 58

Organized crime, 265–266 of controlled substances, 307–312
Original jurisdiction, 14–15 of controlled substances with intent to distribute,
OSHA. See Occupational Safety and Health Act 307–312
Overbreadth, 32 custody versus, 209
Overt act, 102–103, 111 definition of, 209
dominion and control requirement, 307
Pandering, 285 fleeting, 58
Panhandling, 280 joint, 58
Paraphernalia, drug, 307, 308, 314, 316–317 Postpartum psychosis defense, 148
Parental Kidnapping Prevention Act, 198 Post-traumatic stress disorder defense, 148
Parental responsibility laws, 86–87 Post-traumatic stress syndrome defense, 149
Parties to a crime Precedent, 14, 17–18
accessories, 78–79 Predicate criminal acts, 265
accomplices, 78–79 Preemption doctrine, 8
categories of, 78 Preliminary hearing, 10
common law categories of, 78 Premeditation and deliberation, murder with,
conspiracy, 104–105 157, 159
description of, 78–79 Premenstrual syndrome defense, 148
principals in the first degree, 78 Prescription drugs, 305, 307, 316–320
principals in the second degree, 78 Presumption of innocence, 114
summary of, 88 Pretrial/pretrial motions, 10
Passwords, computer, 262 Principals in the first degree, 78
Pathological intoxication, 124 Principals in the second degree, 78
Patriot Act, 356, 370 Prison, 44
Pennsylvania, 95, 165, 211, 217, 284 Prison break, 338
Pentobarbital, 41 Privacy, constitutional right to, 36–38
Per curiam, 15 Probable cause, 10
Perfect defense, 115 Production, burden of, 114
Perfect self-defense, 138 Professional and Amateur Sports Protection
Perjury Act, 303
description of, 330 Prohibited speech, 32
federal statute, 330–331 Promiscuity defense, to statutory rape, 193
inconsistent statements, 332 Promoting prostitution, 285
recantation, 332 Property crimes
subornation of, 333 arson. See Arson
two witness rule for, 332 burglary. See Burglary
Perkins, Rollin, 209 carjacking, 227
Persuasion, burden of, 114 criminal mischief, 237–238, 241
Persuasive authority, 18 embezzlement, 212–214
Petitioner, 15 extortion, 227–228
Petit larceny, 211–212 false pretenses. See False pretenses
Petty misdemeanors, 4 forgery, 221–223, 241
Phillips, Prentiss, 79 larceny. See Larceny
Physical proximity test, 95 overview of, 208
Pimps/pimping, 285 receiving stolen property, 219–221
Pinkerton doctrine, 104 robbery. See Robbery
Pit bulls, 289–290 state rates for, 229
Plato, 92 summary of, 241
Plurality opinion, 15 theft. See Theft
Plurality requirement, 104 trespass, 233–234, 241
Police power, 7 uttering, 221–223
Polygamy, 285 Prosecution
Ponzi scheme, 253 hindering, 83
Pornography, 288 for homicide, 158
Possession for treason, 351–352
actual, 58, 307–308 Prosecutor’s burden, 114
constructive. See Constructive possession Prosecutrix, 186
Prostitution Public welfare offenses, 64

California statute, 284 Pump and dump, 253
crime of, 284–285 Punishment
decriminalization of, 284 for accessory after the fact, 84
definition of, 283 amount of, 41–43
gender-neutrality of, 284 for bribery, 327
keeping a place of, 285 for carjacking, 227
legal regulation of, 285–286 common law and, 59–60
living off, 285 for conspiracy, 102
loitering for, 284 for controlled substances possession, 309
mens rea of, 284 for copyright infringement, 264
misdemeanor classification of, 285 for criminal contempt, 343–344
Model Penal Code, 284, 286–287 criminal intent as basis for, 59
in Nevada, 284 criminal law’s role in, 3
promoting, 285 cruel and unusual. See Cruel and unusual
reasons for criminalizing of, 283 punishment
solicitation for, 284 death penalty, 41–43, 46, 314
trafficking of women for, 285 for driving under the influence, 299
Provocation, 167–168 for felony murder, 165
Prowling, 279 for first-degree murder, 159
Proximate cause for identity theft, 258–259
description of, 69, 72 insanity defense and, 117
of felony murder, 166 lethal injections, 41–42
Psychological defenses, 148 methods of, 40–41
Public administration offenses for rape, 188
bribery. See Bribery severity determinations, 4
extortion, 330 for solicitation, 99
official misconduct, 324 for stalking, 183
overview of, 323–324 Purposely, 61–62
perjury. See Perjury
Public assembly, freedom of, 34 Quality-of-life crimes
Public corruption, 325 broken windows theory of, 278, 292
Public duties, execution of, 142–143 definition of, 272
Public indecencies overview of, 277–278
broken windows theory of, 278, 292
gangs, 274–275, 281–282 Racial discrimination, 26
homelessness, 279–281 Racketeer Influenced and Corrupt Organizations Act,
loitering, 272, 278–279 107, 265–266
overview of, 277–278 Rape
vagrancy, 272, 278–279 acquaintance, 185
Public interest, 325 actus reus of, 188–190
Public intoxication, 297 aggravated, 185, 188
Public order and morality, crimes against California statute for, 189
animal cruelty, 290 carnal knowledge and, 186
description of, 272 case example of, 177
disorderly conduct, 272–275, 292 coercion and, 187
gangs, 274–275, 281–282 common law of, 186–187
homelessness, 279–281 consent and, 186–187
loitering, 272, 278–279, 282 corroboration rule for, 186
motor vehicle violations, 277 date, 185
obscenity, 287–288 definition of, 186, 188
prostitution. See Prostitution degrees of, 187
riot, 275–277, 290–292 earnest resistance standard for, 186
summary of, 292–293 elements of, 186–187
vagrancy, 272, 278–279 equivocal conduct standard for, 190
Public policy examples of, 196–197
attempt and, 93 extrinsic force approach, 189
solicitation and, 98–99 force requirement for, 189
Subject Index 417
“forcible compulsion,” 189 Resisting arrest, 143, 335–336, 345–346

fraud in inducement, 187 Resist to the utmost standard, for rape, 186
fraud in the factum, 186 Resource Conservation and Recovery Act, 249
gender-neutral statutes for, 188 Respondeat superior, 246
historical descriptions of, 185 Respondent, 15
intrinsic force standard for, 189 Responsibility
judicial instruction and, 186 causation and, 68
lack of consent and, 186–187 criminal intent and, 59
marital exemption for, 185, 187 description of, 4
mens rea of, 190 Responsive intervening acts, 70, 72
modern view of law of, 185 Result crimes, 50
objective test regarding consent, 190 Retreat, 134, 137–138
prompt complaint of, 186 Retribution, 93
property rights and, 185 RFRA. See Religious Freedom Restoration Act
punishment for, 188 Rhode Island, 55
reasonable resistance standard for, 186 RICO Act. See Racketeer Influenced and Corrupt
reform of, 187 Organizations Act
resist to the utmost standard for, 186 Right to bear arms, 39–40
sexual activity and, 186 Right to privacy, 36–38
sexual intercourse and, 186–187 Right-wrong test, for insanity defense, 118
sexual offender registration after conviction for, 188 Riot, 275–277, 290–292
sexual penetration requirement for, 189 Riot Act, 275
simple, 205 RLUIPA. See Religious Land Use and Institutionalized
state rates of, 195 Persons Act
statutory, 192–193, 205 Robbery
summary of, 204–205 actus reus of, 224–225
withdrawal of consent, 193 aggravated, 225
Rape shield laws, 187, 193–194 concurrence element of, 225
Rape trauma syndrome, 187, 195–196 definition of, 224
Rational basis test, 26–27 description of, 5–6
Reasonable belief of serious bodily harm or death, grading of, 225
135–136 intimidation as requirement for, 224
Reasonable doubt larceny versus, 223
definition of, 114 mens rea of, 225
sanity beyond, 120 Model Penal Code, 226
Reasonable force, 336 requirement for, 226
Reasonable person standard, 168 simple, 225
Reasonable resistance standard, for rape, 186 summary of, 241
Rebuttable presumption, 125 threats associated with, 224–225
Rebuttal stage of trial, 114 violence as requirement for, 224
Recantation, 332 “Rockefeller drug laws,” 309
Receiving stolen property, 219–221 Romanticism, 283
Reception statute, 7 Romeo and Juliet laws, 192
Reckless burning, 236 Rotten social background defense, 149
Reckless homicide, 163 Rowland, John, 324
Reckless indifference, 166 Rule of four, 15
Recklessly, 62 Rule of legality, 22
Recklessness, 169, 215
Reflex actions, 51 Sabotage, 353–354, 370
Refuse Act, 249 Safe Drinking Water Act, 250
Reid, Richard, 55 Same-sex relations, 37–38
Reliance, mistake of law and, 132 Sarbanes–Oxley Act, 252
Religion, freedom of, 34–35 Scalia, Antonin, 38, 39, 124
Religious Freedom Restoration Act, 35 Schiavo, Terri, 172
Religious Land Use and Institutionalized Persons Second Amendment
Act, 35 Fourteenth Amendment incorporation of, 39
Removal from life support, 71, 172 right to bear arms, 39–40
Rescue, 338 summary of, 46
Second-degree felony Sherman Antitrust Act of 1890, 257, 269

accessory to, 84 Shoplifting, 212
description of, 4 Simple assault, 182
Second-degree misdemeanor, 4 Simple rape, 188, 205
Second-degree murder, 157–158, 162–163, 175 Simple robbery, 225
Securities and Exchange Commission, 251–252 Simpson, Nicole Brown, 2
Securities Exchange Act, 251 Simpson, O. J., 2
Securities fraud, 244, 251–254 Simulation, 222
Sedition, 352–353, 370 Sixth Amendment, 194
Seditious conspiracy, 353 Slavery, 28
Seditious libel, 352 Sleepwalking, 51–52
Seditious speech, 353 Smith Act, 353
Seduction, 285 Snowden, Edward, 363–364
Selective incorporation, 29 Social gambling, 302
Self-defense Social host liability laws, 87, 296
aggressor and, 134 Socially beneficial activity, consent defense for, 131
battered spouse syndrome, 136 Social order and morality, crimes against
Castle Doctrine law, 139–142 alcoholism. See Alcoholism
components of, 134–135 controlled substances. See Controlled substances
definition of, 133 gambling. See Gambling
execution of public duties, 142–143 overview of, 296
force used in, 133–138 summary of, 321
imminence of threatened harm and, 136 Sociological defenses, 148–149
imperfect, 134–135, 135 Sodium thiopental, 41
mistake of, 134 Solicitation
necessity of, 134–136 as accomplice liability, 98
perfect, 138 actus reus of, 99
proportionality of, 134 conspiracy versus, 98
proportionate, 137 corroborating evidence to support, 99
requirements for, 135 definition of, 98, 111
retreat versus, 134, 137–138 description of, 91
right to bear arms for, 40 example of, 98
summary of, 151 First Amendment and, 99
Self-fulfillment, 29 mens rea of, 99
Self-incrimination, 344 Model Penal Code, 100
Sentencing and sentences for prostitution, 284
description of, 10 public policy and, 98–99
for drug offenses, 309–311 punishment for, 99
mandatory minimum, 309–311 reasons for punishing, 99
for term of years, 43 requirements for, 100
September 11, 2001, 356, 358 social danger caused by, 99
Sexual assault, 187–188. See also Rape Solitary confinement, 44
Sexual battery, 196 Sotomayor, Sonia, 42
Sexual contact, 187 South Carolina, 170–171
Sexual intercourse, 186–187 South Dakota, 179
Sexually Violent Predator Act of 1994, 3 Spam, 262–263
Sexual offender, 188 Specific intent, 60–61, 99, 104
Sexual offenses Speech
adultery, 285 freedom of. See Freedom of speech
bigamy, 285 hate, 33–34
fornication, 285 prohibited, 32
incest, 285 seditious, 353
lewdness, 285, 288 symbolic, 32–33
polygamy, 285 Sporting events, consent defense to, 131
prostitution. See Prostitution Sports betting, 303
rape. See Rape Sports bribery, 329
seduction, 285 Stalking, 183–185, 204, 262
Subject Index 419
Stand your ground rule, 138 Subjective test for entrapment, 145, 146
Stare decisis Subornation of perjury, 333
definition of, 17 Substantial capacity test, 119–120, 151
precedents based on, 14, 17 Substantial step test, 94–95, 111
State(s). See also specific state Substantive criminal law, 3
bribery statutes, 326 Suicide, assisted, 160–161
common law, 7 Superior interest, 115
consumer fraud rates, 259 Supremacy Clause, 8
contempt statutes, 343 Supreme Court
criminal codes of, 5–7 state, 16–17
drug laws, 305–307, 321 U.S. See U.S. Supreme Court
gambling laws, 302 Sutherland, Edwin H., 244, 268
identity theft rates, 259 Symbolic speech, 32–33
immigration laws, 365
murder rates for, 159 Tactical retreat, 138
police power of, 7 Taliban, 362
property crimes, 229 Tangible property
rape rates in, 195 criminal mischief against, 237
terrorism statutes, 362 larceny of, 210
State, crimes against Tate, Lionel, 124
espionage, 355–356, 363, 370 Tax crime, 245, 261
overview of, 350 Tax evasion, 261
sabotage, 353–354, 370 Tax preparer fraud, 261
sedition, 352–353, 370 Teenage drinking, 87
summary of, 370–371 Tennessee, 42
terrorism. See Terrorism Tenth Amendment, 8
treason. See Treason Terrorism
State courts, 15–17 case example of, 368–370
State government, 8 combat immunity, 362
State judicial systems, 15–17 definition of, 356–357
Status domestic, 356–357, 370
criminal liability based on, 53–54 examples of, 356
definition of, 53 extraterritorial jurisdiction, 357
duty and, 56 federal crime of, 357
Status offenses, 43 inchoate crimes as, 357
Statute international, 101–102, 356, 370
clarity of, 24 mass transportation systems, 358
void-for-vagueness doctrine for, 24–25 material support for, 358–360
Statutory rape, 192–193, 205 outside the United States, 357
Statutory rape law, 27 Patriot Act, 356, 370
Stevens, John Paul, 23 punishments for, 357–358
Stewart, Martha, 251 state statutes, 362
Stewart, Potter, 43 transcending national boundaries, 357–358
Stolen property, receiving, 219–221 weapons of mass destruction, 358
Stolen Valor Act, 215 Terrorists
Strict liability, 85, 88, 192 harboring or concealing, 358
Strict liability offenses material support given to, 358–360
definition of, 64 Texas
description of, 50 battery, 178
examples of, 66 criminal code of, 3
Model Penal Code, 65 gambling statute, 302
origin of, 64 Penal Code of, 32, 178
requirements for, 64–65 trespass statute, 233
Strict scrutiny, 26–27 Texting
Subject matter crimes, 5 while driving, 277
Subjective approach to reasonable belief of serious Theft
bodily harm or death, 135 computer use for, 262
consolidated statute of, 217 Unborn Victims of Violence Act of 2004, 171
by deception, 216 Undercover activity, 144
elements of, 216 Uniform Controlled Substances Act, 305, 321
grading of offenses, 217 Uniform Determination of Death Act, 172
intellectual property, 245, 263–265, 269 Unlawful assembly, 275–276
trade secrets, 265 Unlawful Internet Gambling Enforcement
by unlawful taking or disposition, 213–214 Act, 303
Third-degree felony Urban survivor defense, 149
accessory to, 84 USA Patriot Act, 356, 370
description of, 4 U.S. Constitution
Thirteenth Amendment, 26 criminal law originating from, 6, 9
Threat(s) Supremacy Clause of, 8
First Amendment protection and, 31 Tenth Amendment of, 8
in robbery, 224–225 treason as defined by, 351
Threatened battery, 182 U.S. Court of Federal Claims, 15
Threatened harm, imminence of, 136 U.S. Court of Military Appeals, 15
Tippees, 252 U.S. Court of Veterans’ Appeals, 15
Tippers, 252 U.S. Supreme Court
Tort, 2 alcoholism as disease, 297
Torture, 180 assisted suicides and, 161
Total incorporation, 28 conspiracy and, 106
Total incorporation plus, 28 contempt statute, 342
Toxic Substance Control Act, 249–250 drug testing of government employees, 318
Trade secret theft, 265 ex post facto laws and, 23–24
Trademark counterfeiting, 265 federal laws ruled as unconstitutional by, 8
Trademark fraud, 264–265, 269 justices of, 15
Traffic violations, 277 mistake of law, 132
Trafficking original jurisdiction of, 15
of drugs, 308 precedent setting by, 14
of women, 285 structure of, 14
Transferred intent, 63–64 writ of certiorari, 15
Transfer statutes, 125 U.S. Tax Court, 15
Transnational criminal organizations, 304 Utah, 7, 121, 158, 258
Transportation of Gambling Devices Act, 303 Uttering, 221–223
Travel Act, 255–256, 269, 303
Treason Vagrancy, 272, 278–279
actus reus of, 351 Vehicular manslaughter, 158, 169, 299
criminal act, 351 Vermont, 55, 188, 228
criminal intent, 351 Vicarious liability, 85–86, 245–246
definition of, 370 Victim
historical punishments for, 350–351 of assault, 181
mens rea of, 351 of battery, 181
prosecution for, 351–352 criminal law and, 3
U.S. Constitution definition of, 351 Victimless crimes
Trespass alcoholism. See Alcoholism
computer, 262 description of, 283
description of, 233–234, 241 gambling. See Gambling
Trespassory entry, 230 obscenity, 287–288
Trespassory taking, 209 prostitution. See Prostitution
Trial, 10 summary of, 293
Trial courts, 16 Victims of Trafficking and Violence Protection
Trial de novo, 17 Act of 2000, 198, 285
Trial transcript, 67 Video games, 288–289
True man, 138 Vigilante justice, 133
True threat, 31 Violations, 4
Tsarnaev, Dzhokhar, 360–361 Violence
Two witness rule, 332 domestic, 196
Subject Index 421
incitement to, 31 identity theft, 244, 258–259, 269

robbery and, 224 intellectual property theft, 245,
Violent Crime Control and Law Enforcement Act of 263–265, 269
1994, 305 mail and wire fraud, 244, 254–255, 269
Virginia, 161, 173, 227, 297, 362 money laundering, 244, 259–260, 269
Void for vagueness, 24–25 securities fraud, 244, 251–254
Voluntary criminal act, 51–53 summary of, 268–269
Voluntary intoxication, 123–124, 151 tax crime, 261
Voluntary manslaughter, 157–158, 167–168, 175 trade secret theft, 265
Voyeurism, 288 Willful blindness, 58
Vulnerable elderly person, 179 William the Conqueror, 6
Wilson, James Q., 278
Wagering Paraphernalia Act, 303 Wire fraud, 244, 254–255, 269
Warnings, criminal law and, 3 Wisconsin, 55, 124, 137–138, 199, 273
“War on Drugs,” 303–304, 321 Withdrawal in good faith, 138
Warrantless arrest, 10 Withdrawal of consent, 193
Warren, Samuel D., 35 Women. See also Prostitution; Rape
Wartime, espionage during, 355–356 domestic violence against, 196
Washington (state), 161, 236, 313 trafficking of, 285
Weapons of mass destruction, 358 Writ of certiorari, 15
Wharton’s rule, 106 Writ of habeas corpus, 10
Wheel conspiracy, 105, 111 “Wrong aim” cases, 64
White, Dan, 122 Wrongful convictions, 340–341
White-collar crime
access device fraud, 259, 269 XYY chromosome defense, 148
antitrust violations, 257–258
computer crime, 261–263, 269 Yates, Andrea, 116
currency violations, 260, 269 Year-and-a-day rule, 172–173
definition of, 244–245, 268
health care fraud, 244, 256–257, 269 Zero tolerance laws, 299
About the Author
Matthew Lippman is Professor Emeritus at the University of Illinois at Chicago (UIC) and has taught criminal
law and criminal procedure in the Department of Criminology, Law, and Justice for more than twenty-five years.
He has also taught courses on civil liberties, law and society, and terrorism and teaches international criminal
law at John Marshall Law School in Chicago. He earned a doctorate in political science from Northwestern
University and a Master of Laws from Harvard Law School, and is a member of the Pennsylvania Bar. He has
been voted by the graduating seniors at UIC to receive the Silver Circle Award for outstanding teaching on six
separate occasions and has also received the UIC Flame Award from the University of Illinois Alumni Association,
as well as the Excellence in Teaching Award, Teaching Recognition (Portfolio) Award, and Honors College Fellow
of the Year Award. The university chapter of Alpha Phi Sigma, the criminal justice honors society, named him
“criminal justice professor of the year” on three occasions. In 2008, he was recognized as College of Liberal Arts
and Sciences Master Teacher. He was honored by the College of Liberal Arts and Sciences, which named him
Commencement Marshal at the May 2012 graduation. Professor Lippman is also recognized in Who’s Who Among
America’s Teachers.
Professor Lippman is author of one hundred articles and two coauthored books. These publications focus
on criminal law and criminal procedure, international human rights, and comparative law. He also is author of
four other SAGE volumes, Contemporary Criminal Law: Concepts, Cases, and Controversies (4th ed., 2016); Criminal
Procedure (3rd ed., 2017); Law and Society (2015); and Criminal Evidence (2016). His work is cited in hundreds of
academic publications and by domestic and international courts and organizations. He has also served on legal
teams appearing before the International Court of Justice in The Hague, has testified as an expert witness on
international law before numerous state and federal courts, and has consulted with both private organizations
and branches of the U.S. government. Professor Lippman regularly appears as a radio and television commentator
and is frequently quoted in leading newspapers. He has served in every major administrative position in the
Department of Criminology, Law, and Justice including Department Head, Director of Undergraduate Studies,
and Director of Graduate Studies.
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Essential Criminal Law

SAGE Publications India Pvt. Ltd. Library of Congress Cataloging-in-Publication Data

Classification: LCC KF9219.85 .L57 2016 | DDC 345.73—dc23

Acquisitions Editor: Jerry Westby This book is printed on acid-free paper.

1. The Nature, Purpose, and Function of Criminal Law 1

5. Attempt, Solicitation, and Conspiracy 91

6. Criminal Defenses: Justifications and Excuses 113

8. Other Crimes Against the Person 177

9. Crimes Against Property 207

10. White-Collar and Organized Crime 243

11. Crimes Against Public Order and Morality 271

14. Crimes Against the State 349

Los Angeles | London | New Delhi | Singapore | Washington DC | Melbourne

Preface xiii Statutory Clarity 24

2. Constitutional Limitations 21 3. Elements of Crimes 49

7. Homicide 155 9. Crimes Against Property 207

Introduction 155 Introduction 208

ORGANIZATION OF THE TEXT

Instructor Teaching Site

Student Study Site

Stephen A. Brundage College of DuPage

4. Appreciate the various sources of criminal law.

THE NATURE OF CRIMINAL LAW

CRIMINAL AND CIVIL LAW

THE PURPOSE OF CRIMINAL LAW

•• Harm. To prohibit conduct that unjustifiably or inexcusably causes or threatens substantial

The next step is to understand the characteristics of a criminal act.

THE PRINCIPLES OF CRIMINAL LAW

•• Capital Felony. Death or life imprisonment without parole

Mala in Se and Mala Prohibita

SOURCES OF CRIMINAL LAW

The Common Law

State Criminal Codes

State Police Power

The Model Penal Code

THE CRIMINAL JUSTICE PROCESS

What is the sequence of events in the criminal justice system?

Information Arraignment Trial Convicted Sentencing Revocation

Source: Department of Justice.

THE STRUCTURE OF THE FEDERAL AND

The Federal Judicial System

Figure 1.2 Federal Court Hierarchy

Figure 1.3 Map of Federal Court of Appeals

Figure 1.4 California State Court System

7 divisions, 4 justices each in Los Angeles;

Two types of courts

State Judicial Systems

CHAPTER REVIEW QUESTIONS

1. Define crime. 4. Is there a difference between criminal law and

appellant discretionary appeal Model Penal Code

CRIMINAL LAW ON THE WEB

Visit study.sagepub.com/lippmaness2e to access additional study tools including suggested answers to

Did Elonis’s Facebook post constitute Learning Objectives

In this chapter, learn about criminal threats and free-

•• The first principle of American jurisprudence is the rule of legality.

BILLS OF ATTAINDER AND EX POST FACTO LAWS

Ex Post Facto Laws

The Supreme Court and Ex Post Facto Laws

Definite Standards for Law Enforcement

You can find the answer at study.sagepub.com/lippmaness2e

ggravated battery, unlawful restraint, and two counts

+ tatus, statute, contract, assume a duty, peril, control,