crim law
Assignments 1-8
copyright © 2001 - 2017 Ray Moses


Mens Rea; Culpable Mental State; Intent; Knowledge; Wilful Blindness; Recklessness; Criminal Negligence; Mistake of Fact/Law; Intoxication; Strict Liability;Void for Vagueness; Principle of Legality; Murder; Felony Murder; Manslaughter; Negligent Homicide; Mental Illness; Incompetency; Infancy
Duress; Necessity; Defense of Self, Third Parties, Habitation & Property; Resisting Arrest; Citizen's Arrest; Entrapment; Outrageous Govt. Conduct
Embezzlement; Receiving & Concealing; Robbery; Burglary; Extortion; False Pretenses; Mail/Wire Fraud; Sex Offenses; Rape
Inchoate Crimes; Attempt; Impossibility; Solicitation; Conspiracy; Renunciation; Complicity; Accomplice; Aider & Abettor; Pinkerton Rule; RICO; Larceny; Theft; Embezzlement
Mental Illness; Incompetency as a Bar; Insanity as a Defense; Diminished Capacity; Infancy; Duress; Necessity; Self-Defense; Defense of Another; Use of Force to Resist Arrest; Dfense of Property; Use of Force in Law Enforcement and Crime Prevention and to Protect Life and Health and to Discipline Chldren; Entrapment; Alibi; Accident; Statute of Limitations; Double Jeopardy; Speedy Trial; Selective or Vindictive Prosecution
Assignments 23-26
Attempt; Solicitation; Conspiracy; Complicity Theory; Accomplice and Co-conspirator Liability

Law of Crimes

Indeed, history is nothing more than a tableau of crimes and misfortunes.

If a man accuses someone of witchcraft practices, but he cannot prove them, the accused shall go to the River; he shall dive into the River. If the River takes him, he who has accused him shall receive his house. But if the River has purified this man and if he comes out of the River safe and sound, he who has accused him of witchcraft shall be killed; the man who dived into the River shall receive the house of the one who accused him.
Code of Hammurabi, Babylonia King
Mesopotamia, 1792-1750 B.C.  (1), (2)

You shall not murder. You shall not commit adultery. You shall not steal. You shall not bear false witness. Honor thy father and mother. You shall love your neighbor as yourself. In everything do unto others as you would have them do to you.
The Bible

We all carry within us our places of exile, our crimes, and our ravages. But our task is not to unleash them on the world; it is to fight them in ourselves and in others.
Albert Camus

Why does our American culture celebrate killers, outlaws and whores?

Law ... begins when someone takes to doing something someone else does not like.
Karl Llewellyn

A person who's tired of crime is tired of life.


[Lector Benevole: The write of these materials (moi) has an emotional commitment to criminal law and pretrial and trial criminal practice that probably won't not be shared by all readers. But if we look back in American history, criminal litigation has long been a popular form of entertainment. Beginning with the colonials and lasting until the early twentieth century, the courthouse was a gathering place for onlookers seeking a good show. There are reports that a considerable amount of wagering took place in colonial days as to which side would obtain the verdict. (As yet, Las Vegas hasn't made book on criminal trials.) As media communication with the masses became more sophisticated and parking spaces more scarce, the courthouse no longer had its magnetic grip on locals searching for a juicy story to watch. It's not that we've lost interest in crime. It's just that we don't have to physically take ourselves to the courthouse to vicariously experience it.

I would submit that we've never lost our thirst for crime news. All of us slake that need with crime stories in newspapers, TV, crime thrillers, and movies. However, to make the most of a course in criminal law, as you go through the semester, try to look at crime news with a new perspective. Allow the subject to stir your ideas and feelings. Let your view of criminal law be colored by the fact that over two million American adults, mostly men, though women (1) are gaining, are incarcerated behind bars in jails and prisons, topping the list of industrialized nations. Be aware that 600,000 convicts are released back into the general population every year. When you read about crimes, go to the movies, rent some classic crime films, e.g., Anatomy of A Murder, To Kill A Mockingbird (1), Breaker Morant , Class Action,  Nuts, The Wrong Man, Murder in the First, The Accused, Cape Fear, Sacco and Vanzetti (French-Italian version), The People v. Larry Flynt, ...And Justice for All, Twelve Angry Men, Judgment at Nuremberg, A Few Good Men, In the Name of the Father, Presumed Innocent, Fargo, Helter Skelter, Primal Fear, Reversal of Fortune, Witness for the Prosecution, My Cousin Vinny, and some of the courtroom classics of a civil nature, e.g. Inherit the Wind, Adam's Rib, Philadelphia, The Rainmaker, Gideon's Trumpet, Amistad, Kramer v. Kramer, Compulsion, A Civil Action, watch cable re-runs of TV/cable dramas such as The Practice and Law & Order.

In the morning hours,cable subscribers can watch real trials during the  In Session portion of TruTV. The early day TruTV trials are the only reason to watch; there are no more experienced reporters to provide intros to the trials, e.g., even-handed lawyer Jack Ford, vivacious fair-minded non-lawyer Ashleigh Banfield, and defense-minded attorney Jami Floyd are gone. Unlike the old days, the TruTV trials are rarely accompanied by useful comments from real prosecutors and defenders. Actual misdemeanor trials take at least a day. Trials of serious offenses last days, weeks and occasionally months. A canned legal drama can be told entirely in a half-hour, but it's not the real stuff. Unfortunately for would be lawyers, in 2007 TruTV cut back drastically on its afternoon trial programing in favor of cop chase and car wreck videos. The entertaining schlock that used to be delivered by tougher-than-a boiled-owl, peroxide-blonde Nancy Grace is not longer available, as she has departed for greener pastures at CNN and stories of missing persons. Catherine Crier, the best of breed former judge, and razor sharp host has moved on. So ces't la vie for would be trial lawyers afternoon trial viewing of TruTV. For the best slice of life experience, slip off to your local courthouse, e.g., the Harris County Criminal Justice Center, to watch a trial in the flesh, (The cases you read about in the newspaper are taking place there daily.) and filter what you hear and see about crime through your newly acquired knowledge of the way crimes and defenses are defined by the common law, the Model Penal Code, and your state's penal code, e.g. the Texas Penal Code. Try to think about what you see of the court system from the viewpoint of the accused (1), the complainant, the witnesses, and the jurors.

Those who are unacquainted with the steps in a criminal trial will find it helpful to educate yourselves before venturing to the courthouse. (1), (2)  In America the prevailing wisdom seems to be that if you can't be famous, be infamous. If you have time, you may find it interesting to visit Famous Trials on the links page linking you to criminal law sites that I find useful. If you visit the Famous Trials site, notice the type of case that qualifies as historically "famous" or "infamous." Are the famous/infamous trials about contracts, wills and estates, employee rights, payment systems, legal research and writing, secured transactions, international business transactions, agency, partnership, corporations, sore-backs, slip and fall, etc., ad nauseam? Audience poll says, "Noooo!" The real life cases and films, stories if you will, that fascinate us are about serial killers (1), (2), (3), (4 - from Anton Chigurh the captive bolt-pistol killer in No Country for Old Men to (5 -Keyser Sose in The Usual Suspects) rapists, frauds, industrial pirates, rogues, rapscallions, rascals, disgruntled postal workers (Have you ever seen a gruntled postal worker?), psychotic crackhead mothers, Latin drug lords, scamps, madams, whores, train robbers, and outlaws of various descriptions throughout history. Why the fascination with violence, sex, prohibited substances, and greed? Why are Butch and Sundance folk heroes and not the guy guarding the trains they robbed? Why does Hollywood glorify gangsters on film, e.g., Al Capone, Jesse James, John Dillinger, Bonnie and Clyde, Bugsy Siegel, etc.? Why is it that these taboo violators, e.g., jailbirds like Charlie Manson , organized crime families (See VIDEO - Genovese family) and the late John "The Dapper Don" Gotti, are part of history, and we are not? Do you ever make hullabaloo and history by following the rules? Why do we have reporters at the scene telling us the exact moment of Oklahoma City bomber Tim McVeigh's death? Why do any of us care about the reported gigolo, killer, drag-queen who offed designer Gianni Versace or the reclusive Unabomber Ted Kaczynski? Are we ordinary citizens really just pigs at the media trough, waiting with ravenous appetites for the swill of bloody, tawdry crime news? Why in recent years were we blitzed with news du jour of every move of the accused wife-killer, e.g., Scott Peterson,, and daily updates about the status of captured suspected terrorists, e.g., French-born Zacarias Moussaoui, indicted on conspiracy charges to which he pled guilty and received six life sentences from his punishment jury, and alleged white-collar criminals, e.g., the conspiracy and fraud case of Enron's Jeffrey Skilling and the late Ken Lay and the Ponzi-scheme of con-man Bernie Madoff? The media certainly whets our appetite, but the hunger for crime news seems to be part of human nature. Without being repetitious, did my favorite philosopher, the late George Carlin, have it right when he jokingly and sagaciously said, "God bless the homicidal maniacs. They make life worthwhile"?

Without an organized system of laws, enforcement, adjudication, and punishment, what would the populace at large do with knaves, rogues, and villains? What would they do to us? It's the criminal justice system that brings some degree of order to what might otherwise be chaos.  

Note to Law Students: Having been a law student and being a lifelong student of the criminal law, I know that the focus on the final exam grade can warp one's willingness to engage in thoughtful preparation for class discussion. This results, in part, because, as students, we naturally limit our attention to what we think will be tested and consider anything else as irrelevant. If you chose to read Bushrod and Bullets as we go through the semester, you should find that it will elevate the classroom discussion and make it more rewarding, as well as assisting you in readying yourself for the final exam.

The First Question: What is a crime ?  We could say that a crime is anything that lawmakers say is a crime, i.e., any social harm defined as a crime and made punishable by law. But it is more illuminating  to visualize a crime as an act that results in societal punishment of wrongdoers, as opposed to conduct such as torts and breaches of contract that involve private remedies. It is the intentionally imposed stigma and societal condemnation that flows from conviction that distinguishes civil from criminal process. One can say that the infliction of punishment is sufficient to render a legal process criminal in nature. In summary, what we mean by a "crime" or "criminal offense" may simply be conduct or a a result that is forbidden by law and to which certain consequences, called punishment, will apply on the occurrence of stated conditions and following a stated process. Section 1.02(1)(a) MPC defines crime as "conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests." See also Section 1.02 TPC.

Karl Llewellyn said, "Law... begins when someone takes to doing something someone else does not like." Crimes are created and defined by a law-making authority. In modern day America, the legislature defines crime. In early common law England, the courts played a major role in defining crime. Indeed, even today there are so-called "common law states" where the courts recognize the continued existence of common law crimes in the absence of a state statute defining the offense and in the absence of legislative intent that the crime not be recognized. All these common law states have penal codes or statutory crimes. There is group of states known as "code states." Code states recognize only the law contained in duly enacted rules and statutes. For example, Texas is a code stated. See Section 1.03 TPC stating, "Conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute."

To amplify a point made above, though there are certain noticeable parallels, realize that criminal law differs from the law that you study in your Torts class. Tort law has a compensatory goal. Criminal law focuses on moral culpability as a basis for determining appropriate punishment for the person who has been adjudged guilty of violating the standards of conduct set by his or her society. You will notice that the cases we read have as their plaintiff not private persons but the government, e.g., the United States of America, the People of the State of California, the Commonwealth of Virginia, the State of Texas.

Defining conduct as a crime is just the beginning of the criminal justice process. It needs a cop and a court to make a criminal. One doesn't become a criminal by breaking the law, but by being found out. Notice that once the criminal law is invoked through the filing of charges, our criminal court system must give an answer. By that I mean, once formal criminal charges are lodged, only three things can happen: (1) the charges will be dismissed by the prosecution or court, (2) the defendant will plead guilty, or (3 the defendant will be tried in a court. As to punishment, only those defendants who plead guilty or who are found guilty in a jury or bench trial are punished.

One might ask why do we have to go through the drill of defining crime and administering punishment to those labeled as criminals. A short answer might be that this system of crime and punishment reflects the most basic moral standards of our society and punishes those who, with culpability, violate those basic moral norms. See Hart, The Aims of the Criminal Law, 23 Law & Contemp. Probs. 401 (1958).     


These Silver Bullets are presented to help you understand the criminal law and save you valuable time trying to gather information. The bullets are simply information that I, as your professor and hired guide, think you might want to know. If you don't do the out-of-class reading, we may overshoot the field in class by talking about things that are self-evident only to those who have done the reading and Greek (assuming you can't read what our President Bush2 called "Grecian") to those who haven't. There is no intent to turn you off with information overkill. Obviously, too much of a good thing can be bad. Your teacher may be giving some of you much more information than you want or can handle. No sweat! Read only what you can absorb and understand. You'll get from your reading what you give by way of effort. In some circumstances, ignorance may be bliss. The exam will, however, test for ability to apply learned doctrine. It's hard to apply doctrine if you don't know of it. So, here's a taste.]


The state of a person's mind is as much a fact as the state of his digestion.

Acta exteriora, indicant interiora secreta. - Outward acts show inward intent.

Actus non facit reum, nisi mens sit rea. - There is no criminal act unless there is a criminal mind.

As a general rule, criminal punishment is not imposed on every person who harms others. For example, in February 2006, Richard Cheney, ex-Vice-President of the United States, shot and seriously wounded a hunting companion. (A funny video re the quail hunt.) No assault charges were filed. Why? One reason is that something other than a harmful result is typically required before a act is considered criminal . Before a person is held criminally responsible for causing harm, it must normally be proven that he acted voluntarily with a wrongful state of mind and in the absence of any justification or excuse for his conduct. As early as 8 A.D., we find the Roman poet Ovid saying, "Overlook our deeds, since you know that crime was absent from our inclinations." Ovid is saying that we are not transgressors because we did not commit the harmful act with a "guilty mind."

The wrongful mental element of crime is sometimes called "mens rea," "state of mind," "guilty mind," or "culpable mental state." [Note: The Spanish word culpable means guilty.] In all advanced legal systems, liability to conviction for serious crimes is almost always made dependent on the offender not only having done the outward acts that the law forbids, but also upon having done them in a certain frame of mind or with a certain will. As we will see below, many codes, e.g., the Texas Penal Code, the Model Penal Code, create a default presumption that the legislature intended a criminal statute to contain a culpable mental state even when the statute defining the crime is devoid of a mental element. One of the things that you as a student need to do is begin to familiarize yourself with the terminology describing various states of mind and the kind of analysis necessary to identify the required state of mind. Pragmatically, it will become very important for us to identify state of mind in order to help decide what crime(s), if any, we have in a given case. Certain conduct is only criminal because of the mental state of mind. Consider homicides: the conduct and result may be constant, but depending on mens rea, the offense in Texas may range from capital murder to murder to manslaughter to criminally negligent homicide to accident. In such instances, state of mind or mens rea determines the degree of blameworthiness, if any. See TX Cases - (1)(2)(3).

Culpable mental states can be used to distinguish the knave from the fool. The criminal law generally looks for the immoral person whose conduct is so violative of the rules of society that punishment may rightfully be imposed on the violator (offender). Harmful conduct alone does not typically make one a criminal. Many crimes are defined in such a way as to require proof of a level of mental culpability. Criminal law places personal responsibility upon the wrongdoer. It assumes that men and women are creatures of free will, capable of exercising choices between good and evil.

The common law (c/l) utilized a variety of words to describe the state of mind of an actor, e.g., maliciously, intentionally, willfully, unlawfully, etc. We see an example of the old c/l concept of acting maliciously in the 1887 Regina v. Faulkner case of the Irish seaman convicted of malicious burning of a ship after the trial judge described the crime in terms of strict liability. In Faulkner, the appellate court judges have a hard time agreeing on the meaning of the term maliciously and refuse to adopt a transfer of culpability doctrine ( transferring the moral culpability from the stealing of the rum, intent to steal, to the possibly accidental, possibly wrongful, e.g., reckless or negligent, setting fire to the ship). Such a transfer would be analogous to and an extension of the c/l felony murder rule, but this court does not adopt such a felony/felony rule, though it is proposed. Though Faulkner intended to steal rum from the hold of the boat and, in the process, set fire to the boat, it does not follow therefrom that he intentionally set fire to the boat. It would seem that Faulkner would not have been judged to act maliciously under the c/l, unless he was at least subjectively reckless.

The c/l concept of acting intentionally covers the conscious objective or desire to engage in conduct or cause a result and also encompasses the concept of acting knowingly, i.e., with an awareness to the point of reasonable certainty that the conduct would occur even though it was neither the objective nor desired, e.g., the bomber who bombs an installation with the intent to get payment from property insurance, knowing (being aware) that lives of residents will be lost, though the deaths of the residents are not the objective and the bomber hopes that they will miraculously escape harm. See Arthur Andersen v. United States, 544 U.S. 696 (2005) holding that "knowingly ... corruptly" required proof of consciousness of wrongdoing. The MPC and TPC each separate "knowingly" from "intentional" or "purposeful" and treat knowingly as a separate culpable mental state. See MPC 2.02 (b) and TPC Section 6.03 (b). Under the MPC is appears that "wilful (willful) blindness" is equivalent to acting knowingly, if it is a situation where the actor is aware of a high probability of the existence of the particular fact that is an element. See MPC Section 2.02 (7). 

At c/l, mens rea is presumed to be a required element even if the statute is silent with regard to mens rea. The MPC Section 2.02 (3) adopts subjective culpability (purposeful, knowing, reckless) as the presumptive default position when the statute is silent as to culpability. Notice that Texas takes a similar position in Section 6.02 (b) and (c) TPC.

The MPC expressly looks at crimes as being composed of elements. Elements may be either "material elements" or simply  "elements." Elements include those that relate to jurisdiction, venue, statute of limitations, etc.; these elements are not connected to the harm or evil sought to be prevented; hence culpability doesn't modify these elements. See MPC Section 1.13 (9) and (10). 

The MPC and TPC each recognize only four culpable mental states or criminal states of mind. Some call these evil states of mind mens rea. Each of these culpable mental states is defined by statute. The MPC does it in Sec. 2.02 MPC ,e.g., purposely, knowingly, recklessly, negligently (gross). Texas does it in Sec. 6.03 TPC, e.g., intentionally, knowingly, recklessly, criminal negligence (gross). The definitions are not exactly the same in each code. Look at Sections 2.02 MPC and 6.02. 6.03 TPC and try to learn the definitions of the four culpable mental states in each. Notice that these definitions are designed to cover both conduct-oriented crimes, such as DUI, burglary, and larceny, that are complete without a result being accomplished and result-oriented crimes, such as the criminal homicides (TPC Chapter 19 - capital murder, murder, manslaughter, criminally negligent homicide), that require that a result, i.e., killing of a human being, be achieved. Arson, battery, and criminal mischief are also examples of result-oriented crimes. Criminal statutes that define crime include one or more of these four culpable mental states, unless they are so-called strict liability offenses, e.g., speeding, DUI (DWI),  that do not include any culpable mental state (mens rea) at all.

The MPC concept of a reckless state of mind requires that the actor actually foresee that a harm may occur. It requires an awareness and a conscious disregard of  the substantial and unjustifiable risk that the material element exists or will occur from the actor's conduct. Thus, recklessness is a subjective concept.

Notice that the main crime in the MPC is which negligence (gross) is the culpable mental state is negligent homicide. See Section 210.4 MPC. It can also form the basis for a type of assault, see Section 211.1, and criminal mischief, see Section 220.3. But that's it. The MPC also rejects the concept of criminal liability based on ordinary tort negligence. Notice that Texas also recognizes only gross negligence and not ordinary tort negligence as a culpable mental state. See TPC 6.03 (d).

If the crime in question contains a culpable mental state as an element and the prosecution cannot prove the existence of the required culpable mental state beyond a reasonable doubt, the accused is not guilty of that crime. There may be lesser crimes with a lesser culpable mental state that can be proved. For example, if D kills V recklessly, D can't be convicted of intent to kill murder, but D may be convicted of the lesser criminal homicide of recklessly killing another, i.e., manslaughter under the MPC Section 210.3 and TPC Section 19.04 and involuntary manslaughter at c/l.

One of  big issues in connection with the culpable mental state in a criminal definition is trying to determine which elements of the offense it applies to. One can see this dilemma in United States v. Yermian, 468 U.S. 63 (1984) (1). The MPC tries to resolve this problem in Section 2.02 (4) by indicating that the prescribed culpability applies to all material elements when the statute does not distinguish the application of the culpability among the material elements, unless a contrary purpose plainly appears. Elements of an offense and material elements of an offense are defined by the MPC in Section 1.13 (9) and (10).

The doctrine of transferred intent, which is highly criticized by Dressler as a useless and potentially misleading legal fiction, see p. 122 - 125, is not followed in Texas. Instead, in Texas, the issue of what happens when a different person or property than the target is injured or harmed or otherwise affected is an issue of causation. The same is true when a different offense than the one desired, contemplated or risked was committed. Section 6.04 (b)  TPC says that a person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what the actor desired, contemplated, or risked is that :(1) a different offense was committed, See Thompson v. State, 236 S.W.3d 787 (Tex. Crim. App. 2007) or (2) a different person or property was injured, harmed, or otherwise affected. Section 2.02 MPC seems to take a similar approach to the TPC. The MPC treats the issue as one of causation and does not rely on the so-called transferred intent doctrine.

Motive is not a culpable mental state. It is the reason why a particular culpable mental state may have come into existence. The prosecution is typically not required to prove the actor's motive as part of the mental element of crime, though it can be strong evidence that the mental element existed. Some terrible crimes occur with no apparent motive. Some superficially terrible crimes occur with good motives, e.g,, mercy killings (Gilbert case). Motive in the sense of underlying goal can be relevant to c/l specific intent crimes because each seems to require some underlying goal beyond the conduct or result that constitutes the actus reus of the crime. In a sense, motive maybe relevant to defenses as when on might say that he acted in self-defense because he was motivated by the desire to avoid bodily injury or death. Finally, in a jurisdiction like Texas that has a hate crime statute like Art. 42.014 Tex. C.C.P, a major issue is whether the actor's motive in committing the offense was based on selecting a victim because of prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference. If so, this motive can make the punishment more severe. See Sec. 12.47 TPC.  

Intoxication Negating Mental State

When we consider the effect of intoxication on criminal responsibility, we must consider the somewhat amorphous concepts of specific intent vis a vis general intent: The c/l's distinction between so-called general and specific intent crimes has been troubling to courts, commentators, law professors, prosecutors, and defenders for many years. The traditional wisdom is that the distinction between general and specific intent is confusing and of no practical use. Cases like People v. Hood (1), a case of a drunken boyfriend convicted of assault with intent to murder for shooting the arresting officer in both legs, reflect the difficulties implicit in allowing certain circumstances, e.g., voluntary intoxication of the actor, to influence culpability in specific intent crimes but not general intent crimes. Nevertheless, common law of the nineteenth century and beyond allowed an actor to negate his culpability with regard to the existence of specific intent in a specific intent crime based on voluntary intoxication. When specific intent, a necessary element of a specific intent crime, has been negated (rendered non-existent) by virtue of voluntary intoxication, a vital element of the offense ceases to exist, and the accused cannot be convicted of the specific intent crime. On the other hand, the common law rule was that voluntary intoxication couldn't be used to negate the existence of general intent of a general intent crime. This results in anomalies, such as allowing the intoxicated person who attempts to rape a victim to avoid punishment under an intoxication claim if he is so intoxicated that he believes the victim is consenting (negating lack of consent) and, on the other hand, preventing the equally intoxicated rapist who completes the act of rape from relying on intoxication to prove that his drunkenness caused him to believe the victim was consenting. The reason for the different results is because attempted rape is considered a specific intent crime and completed rape is viewed as a general intent crime.(Hypo: Suppose that an voluntarily intoxicated college student wanders off from a law school's annual chili cook-off still clutching a $5 beer mug; should she be allowed to introduce proof of her voluntary intoxication to negate the existence of an intent to permanently deprive the college of the value of  the glass?)   

To compare the MPC and TPC rules regarding the effect of intoxication on culpability look at Sec. 2.08 MPC and Sec. 8.04 TPC. You may find that the MPC is generous in allowing voluntary intoxication to negate the element in any crime, except that it can't negate recklessness. (Perhaps because becoming voluntarily intoxicated connotes recklessness.)  The MPC makes no distinction between general and specific intent. The MPC would apparently allow intoxication to negate the mens rea of acting purposefully or knowingly and it would also allow the accused to negate the requirement of a voluntary act by showing that the accused was unconscious of the act due to intoxication. In addition to the "negating an element" aspect of intoxication, the MPC also allows for an affirmative defense of pathological or involuntary (non-self- induced) intoxication if by reason of such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its criminality [wrongfulness] or to conform his conduct to the requirements of law. Texas seems to take the more modern approach to voluntary intoxication saying that voluntary intoxication is simply not a defense to crime irrespective of so-called general or specific intent, though voluntary intoxication may mitigate punishment if it rises to the level of rendering the accused insane, even temporarily, under the prevailing definition of insanity. Though not mentioned in the TPC, involuntariness of the intoxication amounting to temporary insanity (Section 8.01 TPC) is a defense to criminal responsibility when it is shown that the defendant exercised no independent judgment in taking the intoxicant, i.e., it was taken involuntarily as when the accused was slipped a "mickey." See Hanks v. State, 542 S.W.2d 413 (Tex. Crim App. 1970); Torres v. State, 585 S.W.2d 746 (Tex. Crim App. 1974). So, you have very different rules and very different policy approaches under each of these three bodies of law (c/l, MPC and TPC) to the question of what influence the actor's intoxication will have on his culpability (culpable mental state). 

Intoxication that renders a person temporarily insane may be available in certain jurisdictions. There's a famous Colorado case, People v. Low, 732 P.2d 622 (Colo. 1987), involving a hunter who became delusional after overdosing on "Hold" cough drops and stabbed a friend. The case discusses temporary insanity, diminished capacity, and involuntary intoxication. Settled insanity, e.g., alcoholic dementia, that results from continual and chronic abuse of alcohol and/or drugs can be raised as an insanity, as opposed to intoxication, defense in many states.

Mistake of Fact Negating Mens Rea

As you should know from hornbook reading, the application of the common law defensive concept of mistake of fact also depends on whether the culpability the accused is trying to negate is viewed as specific intent or as general intent. The common law allowed the actor to use good faith mistake of fact to negate culpability of  the specific intent element of a specific intent crime, e.g., larceny, burglary, based on either an unreasonable or reasonable mistake of fact; but, a good faith mistake of fact had to be reasonable to negate culpability for the general intent aspect of so-called general intent crimes, e.g., battery, rape. Read UCL 5th, page 159, to understand how some common law courts applied something known as the Moral-Wrong Doctrine that would prevent a reasonable mistake from being available to negate general intent where the actor's conduct would be immoral if the facts were as he mistakenly believed; also, read UCL 5th, p. 161, explanation of the so-called Legal-Wrong Doctrine that prevents the use of a mistake of fact defense when, despite the actor's reasonable mistake, he would still be guilty of some other lesser crime under the facts, as he mistakenly believed them to be. Under MPC Section 2.04 defining the defense of mistake, the defense is available to negate any element of the offense without the requirement that it be a reasonable mistake, i.e., the MPC mistake of fact rule applies to good faith mistakes, irrespective of whether the mistake is reasonable or unreasonableNotice that the one caveat or exception to the MPC mistake of fact rule is that mistake of fact is not available under the MPC if the actor would be guilty of some other offense if we take his mistaken belief as true; however, unlike the common law legal-wrong limitation on mistake of fact, under the MPC the actor will only be liable for that other less serious offense. (Under the c/l legal-wrong theory the actor is liable for the higher more serious offense i.e., he gets no benefit from the mistake of fact.) Texas in Section 8.02(b) TPC follows the MPC approach to the legal-wrong doctrine, i.e., the actor is only convicted of the lesser offense that he would be guilty of if his mistaken belief were true. On the other hand, Texas, Section 8.02 TPC deviates from the MPC and requires that every mistake of fact be reasonable before it can be used to negate the culpability (culpable mental state) required for the offense. There is no specific/general intent calculus in Texas. To repeat, every mistake of fact must be reasonable to qualify as a defense. In effect, in Texas, if your mistake of fact is negligent or reckless and therefore unreasonable, you can't use it to negate a culpable mental state, e.g., intentionally or knowingly. This makes little sense and is the product of the Texas Legislature selectively omitting and including provisions of the MPC without understanding the implications. See New Jersey v. Sexton, 733 A.2d 1125 (NJ 1999) explaining how state lawmakers can botch things up when they define culpability in MPC terms and then require that mistake of fact be reasonable.  [Note: Again, you have different rules regarding mistake of fact in each of the three bodies of law. Your job is to try to understand how this works in each system. Try to sort this out; think of the hypos posed by your professor concerning the negligent mistake of fact in the pink umbrella larceny case, i.e., the person who in good faith unreasonably mistakes a big expensive pink umbrella for her own cheap little Wal-Mart black one and takes it honestly believing it is hers, and the male actor in the rape scenario who honestly but mistakenly thinks the female victim is consenting to the intercourse.  To Do: Look at MPC Sections 2.08 and 2.04 and TPC Sections  8.02, 8.03, 8.04 and try to see how the rules of the MPC and TPC differ.]

On the issue of mistake of fact in statutory rape cases, exemplified in Garnett v. State, 632 A.2d 797 (Md. 1993) (1), look at the MPC Section 213.1 (1)(d) to see that the age of consent is ten (the same as the c/l statutory rape age of consent); more importantly, look at 213.6 (1) for the MPC rule as to whether one can claim mistake of fact regarding the age of the female victim under the MPC; you'll see that the defense, even if based on reasonable belief that the child was older than 10, is not available in statutory rape cases. Texas deals with statutory rape under the rubric of sexual assault of a child in Sections 22.011 and 22.021 TPC. The age of consent is 17. Case law in Texas indicates that mistake of fact re age is not a defense to sexual assault of a child.

If you think about it, mistake of fact doesn't have to exist as an independent defense in a jurisdiction that takes an elemental approach to defining crimes. If a crime has a culpability (mens rea) element, the prosecution is always going to have to prove beyond a reasonable doubt that the mens rea existed, even if there is no separate defense of mistake of fact to negate the culpable mental state. The existence of the express defense of mistake of fact negating the mens rea or culpability element simply means that the trial judge will instruct the jury on the defense as it may apply to the facts and will also instruct the jury about the burden of proof as to the defense of mistake of fact. 

FYI: Examples of crimes from common law days that are considered to be specific intent crimes include: solicitation, conspiracy, attempt, assault (attempted battery), larceny, robbery, kidnapping for ransom, forgery, false pretenses, and embezzlement. Not all of these offenses were judge-made crimes; some were the product of legislative statute. Examples of general intent crimes include: battery and rape (by force, threat or fraud). Malice crimes at common law included murder and arson. In keeping with modern day thinking, the MPC and TPC don't utilize the complex and now mostly useless common law specific/general intent differentiations.

Mistake of Law and Its Influence on Culpability

The basic rule is that ignorance of the law is no excuse (Ignorantia juris non excusat.). See MPC 2.02(9) and TPC 8.03(a). Kinda scary, isn't it, in light of all the crimes at the local, state, and national level? The professor was not exaggerating when he said that there are over 3,500 federal (not counting state) crimes. This may be a bright and shining example of the way our politicians lick problems - just enact a new crime. It's called the "over-federalization of state crimes." As the old bromide goes, "One of the problems with political jokes is that they often get elected."

There are a couple of notable exceptions to the general rule. One is the so-called official interpretation of the the law. UCL 5th explains it on p.172. The MPC Section 2.04 (3) (b) and TPC Section 8.03(b) also recognize this narrow exception as valid mistake of law. Also, the legislature occasionally includes knowledge of the unlawfulness of the conduct as an element of the offense. The so-called different law mistake, reasonable or unreasonable, is a defense if it negates the specific intent of a specific intent crime; the different law mistake is not available to negate general intent of a general intent crime, nor is it a defense to a strict liability crime. See UCL 5th,  p. 177-178, for an explanation. The MPC handles the different law mistake in the same way as a claim of mistake of fact under the MPC. The TPC gives no guidance re different law mistakes. The TPC does indicate that if an actor, who has a valid mistake of law defense, would be liable for some other offense if the law were as he mistakenly believes, he will be liable for that offense. [Note: Under Texas bigamy law, Section 25.01(c) TPC, a reasonable mistake of law is a defense to bigamy by one who has a prior undissolved marriage.] Remember that the law has to published or otherwise made available to the people governed by it; although most of us, before (and maybe even a few during) this class, have never read the Texas Penal Code, we are governed by it.

Resources: For you propeller or pointy-headed readers, there was a great article written in 1958 about criminal law by the legal philosopher Henry Hart. It's called The Aims of the Criminal Law and is printed in 23 Law & Contemporary Problems 401. A couple of other good recent ones are Finkelstein, Positivism and the Notion of an Offense, 88 California Law Review 35 (2000) and Michaels, Constitutional Innocence, 112 Harvard Law Review 828 (1999). 

QUERY : Have you seen Minority Report (VIDEO), a futuristic movie in which mutant "precogs" are able to discern premeditated crime before it occurs and police act to arrest the actor before the crime occurs? If such a system actually existed, should we allow arrest, trial and conviction of persons for their thoughts alone? How much, if any, conduct, e.g., action, would be required if we could be confident that the mens rea existed? Here's an interesting law review article re the story line of Minority Report.


Cogitationis poenam nemo patitur. - No one suffers punishment for his thoughts.

Laws undertake to punish only overt acts.
de Montesquieu (Spirit of the Law)

There is no law against a man's intending to commit murder the day after tomorrow.
The law only deals with conduct.
Oliver Wendell Holmes, Jr. (The Common Law)

We now discuss the requirement of voluntary conduct as a component of a crime. Conduct is a matter of fundamental significance to the structure of criminal law. As a general rule, both voluntary conduct (actus reus) and a guilty mind (mens rea) are requisites for liability. As you read UCL, note that it views the actus reus as consisting of (1) a voluntary act; (2) that causes; (3) social harm. Notice that some crimes, e.g., burglary, rape, larceny, DUI (DWI) require only conduct (conduct-defined crimes). Other crimes, e.g., murder, require conduct plus a result (result-defined crimes). We learn that on occasion the definition of crime dispenses with the mental element (mens rea) and that such a crime is known as a strict or absolute liability crime. The offender can be convicted of the strict liability crime without proof of a culpable mental state. However, when it comes to conduct, we will learn that a person is not ever guilty of an offense unless his liability is based on conduct which includes a voluntary act (the "do it" of I didn't "do it") or the omission to perform an act of which he is capable. See Section 2.01 (1) MPC which states "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," (emphasis added) and Section 6.01 (a) TPC. See TX Cases - (1) (2) (3) So for a crime to occur there must be voluntary conduct. We'll see that the term conduct includes an act, an omission and possession. Note that in the case of "violations" as defined in MPC Section 2.05(1), the voluntary act requirement of MPC Section 2.01 do not apply.

Now that we know that crime requires conduct, let's consider the minimum conduct requirements for the imposition of a penal sanction. How much conduct is enough to support criminal liability? For example, can the mere speaking of words constitute an actus reus? Suppose D1 solicits D2 to commit a serious felony or D1 commits perjury by lying in court or D1 makes a fraudulent misrepresentation of a material fact or D1 tells her husband V to take medicine that D1 knows contains rat poison. Do any of those word-based scenarios constitute criminal conduct?

Another issue - when is conduct "voluntary" and when it is "involuntary"? The MPC doesn't define when conduct is voluntary, but Section 2.01(2) does provide several examples of situations that would make conduct involuntary, namely, "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. This provision comes close by reverse implication to telling us what a voluntary act is. Consider this shopworn hypo. If D, with intent to kill V, pushes X into V causing V to fall from a subway platform to his death under an oncoming train, was X's conduct voluntary or involuntary? If voluntary conduct requires an act that was the product of the defendant's conscious choice or will, X's conduct would be involuntary. One might even call it reflexive. Or if X falls asleep in a vehicle driven by D and D then drives across the international border, X would not be liable for unlawfully crossing the border. The same would be true if X sleepwalked across the border. Similarly, if D slips narcotics into X's pocket without X's knowledge, X would not be viewed as voluntarily possessing the narcotics [Assuming possession is defined as it is under the Section 2.01(4) MPC and Section 6.01(b) TPC as "an act, ... if the possessor 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." Why does it matter that the act was voluntary? One reason may be that involuntary acts can't be deterred. Another reason may be that it is unfair to punish a person for conduct that doesn't involve conscious choice. 

What about the burden of proof regarding the voluntariness of conduct. One would assume that the prosecution has the burden of proving voluntary conduct as an element of the crime. That burden of persuasion on elements of the crime is proof beyond a reasonable doubt. See Section 1.12(1) MPC and Section 2.01 TPC.  In most cases, the defense will not be contending that the conduct was involuntary, but what if it there is evidence that the conduct was reflexive, convulsive, committed while the accused was unconscious or asleep or as a result of hypnosis or was a bodily movement that was not otherwise the product of the conscious or habitual effort or determination of the actor? Logic would tell us that if evidence of involuntary conduct is raised, the jury should be instructed that the accused must be acquitted if there is reasonable doubt as to whether the accused voluntarily engaged in the conduct of which he is accused. Remember that voluntariness of the accused's conduct is a separate issue from the mental state. If, for example, the evidence in a murder case reflected that the accused accidentally fired a deadly pistol shot when bumped from behind, the accused would be entitled upon request to a jury instruction on voluntariness. Remember also in result defined offenses that conduct does not become involuntary simply because the result of the conduct was unintended (a mental element issue not a conduct issue).

One must also consider the requirement of concurrence, i.e., whether the conduct element and the mental element occurred at the same time. For example, if D intends to kill V by shooting V tomorrow, but, as a result of a car accident, causes V's death today, D is not liable for intentional homicide of V. This is so because the mental (mens rea) of intent to kill did not occur concurrently with the conduct that caused V's death. Attendant circumstances are typically linked to conduct. For example, in a strict liability DWI case the attendant circumstance of being intoxicated must be concurrent with the conduct of driving. If an intoxicated person is found in a parked car, the surrounding facts may or may not support the logical inference that he was driving while intoxicated. Circumstances such as that the intoxicated person was found in a roadside ditch behind the wheel of a car with the motor running and fresh skid marks leading from the road to the car wheels might be enough circumstantial evidence of conduct, i.e., driving, in some jurisdictions.

One of the other issues in fleshing out our understanding of criminal conduct is whether criminal liability should depend to any extent on the consequences of acts or omissions or only on the acts or omissions  themselves. For example, if D1 and D2 each intentionally shoot at V with the intent to kill V, should they be equally blameworthy for the same conduct if D1's shot hits and kills V and D2's shot misses V. We will face this issue later when we deal with causation, result--defined offenses, and punishment for inchoate offenses.

The other matter that we will consider later in the web discussion is the issue of one person's liability (responsibility) for the conduct of another - so-called vicarious liability. For example, suppose that D, a responsible adult, tells six-year-old X to shoot his (X's) mother, V, with a "toy pistol" that D1 knows to be a real loaded pistol. If X shoots and kills V, is D responsible for X's conduct? If so, we will understand why when we study complicity.

Unconsciousness - "By  my involuntary act, ye shall not know me." Since criminal conduct must be voluntary, if the act is unconscious when the conduct occurs it seems logical that it would not be viewed by the law as voluntary. The most famous case of unconsciousness was People v. Newton, 87 Cal. Rptr. 394 (Cal. 1970). The accused was the Huey P. Newton, founder of the Black Panther Party. Another case that is often cited in connection with what is not unconsciousness is People v. Decina, 188 N.E.2d 799 (NY 1956), a negligent homicide case where the court held that an epileptic was liable for the deaths of four people in a traffic accident  occurring when he lost control of his vehicle during a seizure; the court held that the act of driving was the required voluntary conduct; also, it is not required that the result of conduct occur concurrently with the mental element (here criminal negligence). Suppose one drinks himself into a state of unconsciousness and then commits what would otherwise be a crime. Will s/he be allowed to claim that there was no voluntary conduct because s/he was intoxicated? UCL 5th tells us in Section 24.04 that there are few cases on this issue and that they split in either disallowing the unconsciousness claim entirely or allowing it only in specific-intent cases. 

Hint for the Exam: In analyzing problems to determine what crimes are present, be sure that the conduct, e.g., act, upon which criminality is potentially based was voluntary before you decide that the accused is guilty. Also, involuntariness of the act is a defense to strict liability offenses under the TPC, but not for violations under Section 2.05(1) MPC unless the requirement of a voluntary act is included in the definition of the violation or the court finds that application of Section 2.01 MPC is consistent with effective enforcement of the law defining the offense. Finally, if you are dealing with a criminal omission to act, be sure that the defendant is physically capable of performing the act, e.g., failure of a person, D, with a duty to swim out and save a drowning person is not criminal conduct if D cannot swim.


He who does not prevent a crime when he can, encourages it.
Seneca, Roman Orator, 1st Century

Do (Do not do) unto others what you (would not) want others to do unto you (under the same circumstances).
The Golden Rule Luke 6:31 (1)

In general, the criminal law must content itself with keeping men from doing positive harm and
must leave to public opinion and to teachers of morality and religion, the offices of furnishing
men with norms for doing positive good.
Justice Oliver Wendell Holmes, Jr.

Moral and Legal Duty - "Am I my brother's keeper?" Most of us have heard this Genesis 4:9 answer to the query, "Where is Abel thy brother?" (1- kid's version of the story) A fundamental policy question which the criminal law must resolve is whether an individual must act affirmatively for the benefit of others, i.e., should a duty to act be imposed on us by our criminal law? Is our culture receptive to a legal (as opposed to moral) duty requiring us to assume some responsibility for the well being of others? (1 - 2 - 3\Brits article) For the most part, the criminal law says that we are not our brother's keeper. At least, the criminal law won't force us to be. The idea is that criminal law doesn't exist to make us virtuous. Instead it is there to punish us when we fall below the minimum standards of acceptable conduct. Criminal law reflects basic legal obligations not loft standards of morality. You don't have to love your neighbor or live by the Golden Rule, but don't steal his ox and murder his wife. Generally we leave moral training to the family, the church and social institutions.

Suppose in each of the following instances that D (a bystander) hates V and gladly omits to do anything to prevent V's death: (1) V runs out of a burning building with his clothes on fire and D with a bucket of water in his hand sees V's predicament but withholds throwing the water on V; (2) Drunken and besotted  V passes out and falls down with her head in a puddle of water where she begins to drown. D sees this, understands he can save V but does nothing; (3) D with a wallet full of money refuses emaciated beggar V $1 for a cup of soup and V dies the next day from starvation; (4) D's roommate V falls and breaks his neck. V can't reach the phone for help. D, deciding not to help V, retires to his bedroom to watch TV. V dies from the injury four hours later.

We know that there is no criminal liability without conduct. But does the concept of conduct include doing nothing, i.e., failure to act, omission to act? As a starting point, understand that "doing nothing" by itself is not enough to satisfy the conduct requirement. For the omission to act to be criminally actionable conduct, there must first be a legal duty to take positive action. Think of it this way - criminal responsibility for an act, i.e., bodily movement, does not require proof of an underlying duty to act, but criminal responsibility for omission, i.e., failure to act, does require proof of an underlying duty to act. While most crimes are committed by action rather than inaction, if an individual is under a legal duty to act and it is possible for him/her to act, and if the individual is aware of the existence of facts giving rise to the duty to act, the failure to act may be sufficient to make the actor criminally liable, assuming that the person was physically capable of doing the act. In law, this failure to act is labeled as an act of omission or a negative act.

What does the term legal duty mean? At common law and under Section 2.01(3) MPC the word legal includes duty imposed by the common law and statutory law.  Although both the MPC and TPC have done away with common law crimes in MPC Section 1.05(1) and TPC Section 1.03(a); neither code limits legal duty to act to that imposed by statute. See TX Cases - (1) ( 2). Section 2.01 MPC provides in part, " A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or omission ... Liability for the commission of an offense may not be based on on an omission unaccompanied by action unless the omission is expressly made sufficient under the law defining the offense or a duty to perform the omitted act is otherwise imposed by law." Even though Section 1.05 MPC makes clear that no conduct constitutes an offense under the MPC unless it is a crime or violation under the MPC or another statutes, the MPC did not limit omission duties to those found in statutory law. Under the MPC, a common law duty could suffice for purposes of omission. In Texas, Section 6.01(c) TPC, as modified by Section 1.07(30) TPC, makes it clear that "a person who omits to perform an act does not commit an offense unless a law as defined by Section 1.07 TPC provides that the omission is an offense or otherwise provides that he has a duty to perform the act." Law under Section 1.07 TPC means "the constitution or a statute of Texas or the United States, a written opinion of a court of record, a municipal ordinance, an order of a county commissioners court or a rule authorized by and lawfully adopted under a statute." Even though Section 1.03 TPC makes it clear that common law crimes are not considered as conduct under the TPC, the TPC does not currently limit the law that creates a duty to act to statutes. Although the high court has not ruled, it seems probable that the current TPC law of omissions, like the MPC, would allow prosecution of an omission to perform a common law duty. See Oler v. State, 998 S.W.2d 363 (Tex. App.- Dallas - 1999). [Note to students: If I gave you a handout of the old Billingslea case, consider it here.]

In what manner does a legal duty to perform arise? People v. Beardsley 113 N.W.1128 (Mich. 1907) (1), a case in which the accused failed to aid his mistress when she took a overdose of drugs,  is often cited in casebooks for its statement of the general rule: "There are at least four categories where the failure to act may constitute breach of a legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid." In addition to the categories listed by Beardsley it is clear that some crimes are so defined as to provide that the omission is an offense, e.g., failure to file an income tax return or failure to provide support for minor children (See Section 25.05 TPC - Criminal Nonsupport and Section 230.5 MPC) or failure to stop after an auto accident (See Duties Following Accident - Section 550.022 Tex.Transportation Code) or an auto accident involving injury (See Sections 550.021, 550023 Tex. Transp. Code). When you study larceny/theft, you will discover that failure to return lost, mislaid, or misdelivered property can be the criminalized, assuming that the appropriate mental state can be proved.

Dressler lists the circumstances in which there may be a duty to act. See UCL6th Section 9.07[A][2] p.106 They include: (1) status relationships (They typically are recognized only in relationships involving special dependency, e.g., parent child, spouses, employer-employee.); (2) contractual obligations, either implied or express See Commonwealth v. Pestinikas, 617 A.2d 1339 (Pa. Super. 1992) (1) (2) a third-degree murder case imposing criminal liability for omission to perform an oral civil contract to provide food and medical care to a 92- year-old man; (3) omissions following an act - where, for example, one creates a risk to another or to property and fails to act to mitigate the injury or damage or where one voluntarily assumes a duty of care and fails to follow through, see Jones v. United States, 308 F.2d 307 (D.C. Cir 1962) reversing an involuntary manslaughter conviction of a neighbor who took over the custody of a infant who died of severe malnutrition for plain error in failing to instruct the jury concerning the necessity for finding a legal duty of care; (4) where, independent of any common law duty to act, a statute imposes a duty to act.

Relationship of the parties: The common law placed affirmative duties to act upon persons because of their standing or relationship to another. The two major special dependency relationships were husband/wife and  /child. For example, husbands (but not lovers even though living together) had the duty to support their wives. Parents were charged with the duty to feed, clothe and shelter their children.  Employers had certain duties to employees. Note that actionable duty does not always arise in a special dependency relationship. For example, if D, who cannot swim, takes his son, V, to the beach and  V suffers a cramp and begins to drown, because D cannot swim D will not be charged with the duty of swimming out to rescue V. The law does not require an impossible act. (A l'impossible nul n'est tenu - No one is bound to do an impossible act.)

Contract: We don't normally think of imposing a criminal sanction when one fails to perform under a contract. Typically people are left to their civil remedies for breach of contract. However, society may be so adversely affected by nonperformance of a contractual promise, e.g., where death ensues as a result of the breach, that criminal penalties may be imposed. A common example of such a breach, is the case of the lifeguard who has contracted to protect swimmers and fails to do so. Of course, the breach of contract by the lifeguard only provides a basis for saying that the actor failed in his duties and the breach caused loss of life by drowning; for a homicide prosecution, the relevant culpable mental state would also have to be proven.

Omission following an act: A legal duty to act may arise because of factual circumstances, e.g., where one party voluntarily undertakes a duty that he otherwise did not have and secludes a helpless person so as to prevent others from rescuing or assisting the person in peril. Once a duty of care has been voluntarily assumed, it may seem reasonable to require the actor to carry through with the care. The duty of care might also be imposed in a situation in which the actor has unlawfully placed another in a position of danger. A more difficult question arises if the actor accidentally imperils another.   

In most omission cases we are dealing with legal duty that one person owes to another. However, it is possible for various other legal duties to exist. For example, it could be a statutory crime for an individual to negligently, recklessly, knowingly or intentionally fail to provide necessary food, water, care and shelter for an animal. See Section 42.092 TPC. Other TPC omission crimes include: Section 38.02 - Failure to Identify; Section 38.07-  Permitting Escape; Section 39.05 -  Failure to Report Death of a Prisoner. It might be unlawful to fail to take reasonable measures to put out or control or report a fire that one knows is endangering a substantial amount of property of another when one lawfully started the fire or when it on property under his control. See Section 220.1 (3) MPC.

"Killing" and "Letting Die" - Discontinuing Life Support - Act of Omission or Commission? - "Why are these high powered scientists always screwing around to prolong life instead of finding pleasant ways of ending it? " - Line from They Shoot Horses Don't They? - An individual's control over his own body is one thing. The right of a third party, e.g., doctor or nurse, to take the patient's life is another. The right to refuse medical attention is a well recognized right derived from the doctrine of informed consent. The right to refuse medical treatment evolved into the "right to die" cases that were premised on the right to privacy. See Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990) (1 - wiki) ruling that artificial feeding is a form of medical treatment that may be terminated to fulfill a person's desire to die  with dignity and that Missouri hospital authorities could constitutionally be ordered to allow that desire to be carried out in the case of woman who was alive, i.e., heart and lung activity within normal limits, but in a persistent vegetative state, provided that the proof of Nancy's desire was shown by "clear and convincing inherently reliable evidence"; Nancy Cruzan's parents brought the suit in her behalf. See the federal 1991 Patient Self-Determination Act (PSDA).

In November of 1994, Oregonians passed a "Death with Dignity Act," a measure that allows a patient with six months or less to live to ask a medical doctor to prescribe a lethal dose of drugs to end unbearable suffering. Under the Oregon law, at least two doctors must agree that the patient's condition is terminal. The patient  must request the drugs at least twice before receiving them on the third request. It is up to the patient to take the final step of self-administering the drugs. See also Vacco v. Quill, 521 U.S. 793 (1997) and Washington v. Glucksberg, 521 U.S. 702 (1997) holding that there is no constitutional right to assistance in committing suicide. Euthanasia is defined by the Medical Dictionary for Lawyers as "an act or practice, which is advocated by many, or putting persons to death painlessly when they are suffering from incurable or malignant diseases, as an act of mercy." Any way you slice it, it's still a knowing killing - one species of murder, virtually always premeditated, in the absence of a legal justification or excuse. [Note: I suggest that active euthanasia happens across the United States many times every day at a low visibility level not subject to legal scrutiny. If toxicology screens were done (they aren't) on patients with terminal illness, anecdotal evidence leads me to guesstimate that more than half would have lethal doses of drugs in their systems, i.e., the direct cause of death being lethal injection, not the terminal disease that brought the patient to the medical care facility. If my conclusion is correct, is this good policy?]

What about an omission to act by a health care professional that occurs under circumstances where the professional knows that the omission, e.g., not hooking the patient up to a respirator or not administering life prolonging drugs, will result in death? Such an omission is done with the purpose of causing death though the motive may be merciful, e.g., medical personnel knowingly let patients die to relieve suffering. There is an awareness that the omission is reasonably (practically) certain to result in death. The issue of omission to act can arise in the doctor-patient relationship where a doctor omits to provide heroic life support measures to sustain life, sometimes as a result of the patient filing as advance directive to physicians, Advance Directive Act, Chapter 166, Health & Safety Code, instructing the attending physician not to initiate the use of artificial methods to extend the natural process of dying (1) (2 - Tx. forms: Durable Power of Attorney; Advance Directive; Do Not Resuscitate) (3). That situation, i.e., where the medical personnel forego heroic measures from the outset, pretty clearly is an act of omission that takes us out of the act of commission arena and into the duty and breach of duty arena. But the life support issue can also arise in the more dicey situation where the physician hooks the patient up to life support and subsequently pulls the plug on the respirator or withdraws the IV supplying nutrition (food) and/or hydration (water) from a living person. Is this an act of commission, in which  case inquiry into legal duty is irrelevant, or an act of omission where we inquire into the nature of the duty and whether or not there has been compliance. Consider this basic question: Is letting a person die by withholding treatment the moral equivalent of actively killing a person by administering a drug overdose? If there are different rules for withholding and killing, how do we classify "pulling the plug"?  A key case in this "killing or letting die" inquiry, included in almost every casebook, is Barber v. Superior Court, 147 Cal. App. 3d 1006 (Ct. App. 1983) a case involving two doctors charged with murder for discontinuing hydration (water) and nutrition (food) from a living individual where the court viewed withdrawal of life support as an omission equivalent to withholding life prolonging treatment, and not a criminal omission of legal duty under the circumstances, rather than an act of commission that caused death of a person, constituting criminal homicide, typically murder if done  knowingly.

Rescue and "Bad Samaritan" Laws - In recent years there has been a movement to enact so-called "rescue" or "Bad Samaritan" laws making it a crime to fail to come to the aid of another who is in peril of serious injury when the rescuer could assist without peril. Another form of such laws is the duty to cooperate with authorities by reporting crime. (1 - law review article). Such statutes exist in Ca., RI, VT, and Wis. The movement gained impetus (1) from the Jeremy Strohmeyer case involving the senseless sexual abuse and murder of a child in the restroom of a Nevada casino and the inaction of a witness friend of the defendant who failed both to intervene and to report the sexual abuse and/or killing of the child. As a result of outrage directed at the witness, a bill was introduced in Nevada to require people to report to authorities when they had reasonable suspicion that a child younger than 18 is being sexually abused of violently treated. The bill didn't pass in Nevada, but, in 1999, Texas lawmakers enacted a crime based on failure to rescue or report the offense of aggravated sexual assault of a child - Section 38.17 TPC. [Note that Section 261.109 of the Texas Family Code provides "A person commits an offense if the person has cause to believe that a child's physical or mental heath has been or may be adversely affected by abuse or neglect and knowingly fails to report as provided in this chapter."] Subsequently, the Texas Legislature enacted a broader failure to report crime -  Section 38.171 TPC requiring immediate report of commission of any felony which takes place under circumstances in which a reasonable person would believe that serious bodily injury or death may have been committed. [It looks like this statute imposes an ordinary tort standard of negligence in which there is no requirement of knowledge or recklessness re whether death or serious bodily injury may have resulted from the felony. If we aren't supposed to read a culpable mental state higher than ordinary negligence into this Texas "Bad Samaritan" statute, isn't it a bit onerous?]

Compare: The Texas injury to a child, elderly or disabled person statute - Section 22.04 TPC and the child endangerment statute - Section 22.041 TPC. Note that the injury to a child statute states that omission under stated circumstances is conduct constituting an offense under Section 22.04 if (1) the actor has a legal or statutory duty to act or the actor has assumed care, custody, or control of a child, elderly individual or disabled individual.

A brief question: D1, D2, and D3, all of whom can swim, observe child V drowning in a kiddie pool but take no steps to save V. D1 is the mother of V; D2 is a lifeguard; D3 and D4 are strangers. D3 has accidentally pushed V into the water. All could reasonably be expected to save V if they wished. V drowns. D1 is the classic case of parental omission of a duty to protect D2 is the classic case of omission of duty based on contract; D3's duty to act might be based on risk creation; and D4, in the absence of a rescue statute, would appear to have no legal duty to V. 

Tip: When you are facing an omission to act problem on your exam and you find a duty to act that the defendant failed to perform, before you ascribe criminal liability, don't forget to check the facts to be sure that the defendant was physically able to perform the act. Like an act of commission, the act of omission must be voluntary. Also, don't forget that the defendant who has failed to perform a required act may also be required by the definition of the crime to have a particular culpable mental state (mens rea). And, in the case of result defined offenses, remember that the failure to perform must be a legal as well as factual cause of the result. In short, five of the required factors that you should look for in omission cases are (1) a legal duty; (2) an omission of the duty with the necessary culpable mental state; (3) in result crimes, a causal relationship between the omission and the result; (4) an awareness on the part of the actor of the facts giving rise to the duty to act; and (5) facts reflecting that performance of the duty was possible, i.e., capable of being performed by the accused.


Acts and omissions are not the only form of conduct. Criminal liability may also be based on voluntary possession. Possession  crimes don't prohibit harmful deeds. Instead, they attempt to regulate behavior in order that people don't ever reach the stage of using the prohibited thing in a way that inflicts harm to individual or public interests. Section 2.01(4) MPC and Section 6.01(b) TPC makes one liable for  possession if the possessor knowing 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. From the policy standpoint, the reason why we have possession crimes is to discourage the harm that can flow from the possession, e.g., controlled substances, weapons, criminal instruments such as burglary tools, child pornography, gambling devices, etc. When possession of something is defined as unlawful it's because of past or future consequences of the possession. Unlike acts (doing something) and omissions (failing to do something) possession defines the relationship between an property and a person. Possession involves the exercise of care, custody or control over a thing. As indicated by its definition, there is a requirement that the proof of possession show that the accused either knowingly procured or received the thing possessed or if he discovers it within his control was aware of it being in his control for a sufficient period of time to have dispossessed himself of the thing.

Possession may be actual as where D1 possesses a thing. Possession may also be constructive, as where D1 possesses an object for D2 who maintains control over it. Having a thing in the sphere of one's potential  control does not mean that it is possessed under law. Where, for example, the law requires that the possession be "knowing," having the thing on or about one's person or within one's wingspan or within one's home is not possession if one did not knowingly receive it or procure it or was not aware of  one's control for a long enough period of time to get rid of it. In some cases, the circumstances surrounding the possession may support the logical inference of awareness of possession, e.g., when D has three kilos of heroin strapped to his waist. However, if D is charged with possession of a miniscule amount of cocaine on  the surface of a $20 bill in his wallet, the facts may not support a logical inference that D was aware of the cocaine on or about his person. See King v. State, 895 S.W.2d 701 (Tex. Crim App. 1995).   


Cause and Effect ??

Q: Hey buddy, why are you standing here on downtown street corner with an elephant gun?
A: I'm keeping elephants out of the city center.
Q: But there aren't any elephants here.
A: Right. I'm doing a pretty good job, aren't I?

Causation may be a disputed issue in any crime in which a harmful result is an element. But  most often we see it in the context of homicide cases where, for example, we may have both the actus reus and the mens rea of criminal homicide, along with a death, but with a real question as to whether there is a sufficient necessary causal connection between the act and culpable mental state on one hand  and the death on the other. This is a classic problem of causation. Note that death, one of the required elements in criminal homicide cases, is sometimes fortuitous; homicide doesn't occur without it, but whether it happens depends on many variable, e.g., the defendant's aim, choice of weapon, weather, strength and health of the victim, promptness of medical care, etc.

The first sine qua non requirement in causation is that the defendant's act be the factual ("but-for") cause: "but for" the defendant's act would the injury have occurred? The  criminal law does not take notice of all the conceivable "but for" causes. For example, in a gunshot homicide case, the person who fired the gun, the man who made the gun, the woman who made the cartridge, and the person who invested gunpowder are all factual causes. UCL calls the latter three "conditions" that are necessary for the harm to occur and tells us that we exclude them from causation based on common sense and fairness.  

Be certain to read all of UCL Chapter 14. Dressler tells you that there are no magic formulas to determine when an intervening cause breaks the chain of causation. Courts have a lot of leeway in finding causation or an absence of it, e.g., the famous or infamous case of  People of New York v. Warner Lambert , 51 N.Y.2d 295 (1980),  the exploding chewing-gum factory, where the court let the corporate defendants off the hook for manslaughter and criminally negligent homicide by requiring proof of the exact manner in which the harmful result occurred as well as proof that the cause was foreseeable. (1 - article on criminal homicide by NY corporations) But we can look at various factors to determine if the defendant was both the factual/actual ("but-for") and the legal (proximate) cause. Those factors include:

  • (1) Comparing the defendant's causal conduct with the intervening cause;
  • (2) Asking whether the independent (coincidental) intervening cause was a foreseeable (proximate) cause of the harmful result, see Henderson v. Kibbe, 431 U.S. 145 (1977) or whether the dependent (responsive) intervening cause was a "normal" rather than a "bizarre" or "highly abnormal" or highly extraordinary" response to the defendant's causative conduct [Note: If theindependent (coincidental) intervening cause is not foreseeable the defendant is unlikely to be the legal cause, but only if the dependent (responsive) intervening cause is a bizarre response, rather than a normal response, is the defendant unlikely to be the legal cause. Also, contributory negligence of the victim or ordinary negligence of treating medical personnel often won't break the chain, but gross negligence or recklessness of others, e.g., hospital and medical personnel, typically does] ;
  • (3) Asking  whether the defendant intended the result - under the intended consequences doctrine , if the defendant got exactly what he wanted, the fact that the result didn't occur in exactly the way (manner)  the D planned, may not prevent legal causation from occurring;
  • (4) Asking whether the victim voluntarily chose to endanger himself - if so, this may cut off the chain of legal causation [On the other hand, a victim whose acts are in response to D's wrongful acts probably are not voluntary as where a victim attempts to escape, e.g., Stephenson v. State 179 N.E. 633 (Ind. 1932) a felony murder case where the victim, Madge Oberholtzer, took poison in response to Ku Klux Klan leader David Stephenson's abduction and sexual assault of her. Another good example, is the "Howard Beach" case of People v. Kern, 545 N.Y.S.2d 4 (NYAD 1989) where a group of white thugs chased a black man who had ventured into their neighborhood onto a highway where in fluight he was hit and killed by traffic.]; and
  • (5) Determining whether the intervening cause was an omission rather than an act, since omissions (failure to intervene) often don't serve as intervening causes that will break the causation chain. See People v. McGee, 187 P.2d 706 (1947), where the failure of hospital surgical personnel to promptly treat the hemorrhaging knife wound  of the victim was viewed as equivalent to a victim who bled to death because no surgical attention was available. UCL5th explains on p. 195 why "an omission will rarely , if ever, supersede an earlier, operative wrongful act."

Remember, causation is only a required consideration in the result-oriented crimes, e.g., criminal homicide where the crime requires proof of a result caused by the defendant's conduct. Causation is not an element in crimes, e.g., rape, burglary, involving only conduct and circumstances surrounding conduct. Most crimes are conduct-oriented in the sense that they don't require proof that the conduct caused a harmful result. Acts and omissions can both be causes of harmful results. Not all states have statutory rules for determining causation, but Texas does. See Section 6.04 TPC. So does the MPC, see Section 2.03 MPC.

Speaking of Causation: Here's a good story of murder or suicide?

April 1, 2008 - News Flash - The medical examiner viewed the body of Ronald Opus and concluded that he died from a shotgun wound to the head. Mr. Opus had jumped from the top of a ten-story building intending to commit suicide. He left a note to that effect, indicating his despondency. As he fell past the ninth floor Opus' life was interrupted by a shotgun blast, passing through a window, which killed him instantly.
Neither the shooter nor the decedent was aware that a safety net had been installed just below, at the eighth floor level, to protect some building workers and that Ronald Opus would not have been able to complete his suicide the way that he had planned. "Ordinarily," the medical examiner continued, "a person who sets out to commit suicide and ultimately succeeds, even though the mechanism might not be what he intended, is still defined as committing suicide." The fact that Mr. Opus was shot and killed on the way to what he thought was a certain death, coupled with the fact that the fall clearly would not have in fact caused his death because of the safety net, prompted the medical examiner to feel that he had a homicide rather than a suicide on his hands.
An elderly man and his wife occupied the room on the ninth floor from where the shotgun blast had emanated. They were arguing vigorously, and he was threatening her with a shotgun. The man was so upset that when he pulled the trigger he completely missed his wife, and the pellets went through the window striking Mr. Opus. When one intends to kill subject "A" but accidentally misses and kills subject "B" in the attempt, one is guilty of the murder of subject "B" under the state's view of the so-called "transferred intent" doctrine.
When confronted with the possible murder charge, the old man and his wife were both adamant. They both said that they thought the shotgun was unloaded. The old man said it was his long-standing habit to threaten his wife with the unloaded shotgun. He had no intention, whatsoever, to intentionally or knowingly murder her. Therefore, the killing of Mr. Opus appeared to be an accident and certainly not grossly negligent conduct.
The continuing investigation turned up a witness who saw the old couple's son loading the shotgun about six weeks prior to the fatal accident. It transpired that the old lady had cut off her son's financial support, and the son, knowing the propensity of his father to use the shotgun threateningly, loaded the gun with the expectation that his father would shoot his mother. Since the son was aware of his father's habit and wanted his mother dead, he was guilty of the murder by using an innocent agent (his father) to accomplish the result, even though the son didn't actually pull the trigger. The case now becomes one of murder on the part of the son for the death of the unintended victim, Ronald Opus.
Now comes the exquisite twist. Further investigation revealed that the son was, in fact, Ronald Opus! He had become increasingly despondent over the failure of his attempt to engineer his mother's murder. This led Ronald Opus to jump off the ten-story building, only to be killed by the shotgun blast passing through the ninth story window. The son actually murdered himself! So, the medical examiner closed the case as a suicide!

Common Law Causation - The c/l uses an "actual" ("but for") cause, "legal" ("proximate") cause approach to the issue of causation. The actual cause calculus is the traditional "but for" test, i.e., but for D's conduct would the result have happened when it did? If the answer is "No," i.e., the result would not have happened when it did if D's conduct had not occurred, there is factual causation. There may be more than one actual cause of a harmful result. When that happens, the various actual causes may be called "concurrent" causes.  Once you have actual cause, the c/l asks whether the actual cause is sufficiently proximate to support a finding of legal causation, i.e., causation for which D will be held legally responsible. In making the determination of legal cause, foreseeability of the harmful result is typically considered. Courts will also typically look at intervening causes (often broken down into categories of "dependent" and "independent" intervening causes) to determine if the chain of causation is broken.

Henderson v. Kibbe, 431 U.S. 145 (1977) is an example of what is referred to as an independent (coincidental) intervening cause that does not occur in response to the initial wrongdoer's conduct. Remember that the common law rule of thumb is that a coincidental independent intervening cause relieves the original wrongdoer of criminal responsibility, unless the intervention was foreseeable.. Kibbe is a 1977 post-conviction habeas corpus case in which the defendant Kibbe robbed the victim and left him, without his eye glasses, beside a road in sub-freezing temperature in a deserted rural area. The victim, who moved onto the roadbed after being abandoned, was hit by a speeding truck (rather than freezing to death). The U.S.S.C. held that it was not a violation of due process for the trial judge to fail sua sponte to give a specific instruction on causation - particularly since the defendant did not ask for such an instruction or object to the failure of the court to give one; the U.S.S.C. also found implicit in a finding of recklessness that the jury believed that the risk involved was foreseeable. In Kibbe the only relationship between the defendant's conduct and the intervening cause is that the defendant placed the victim in a situation where the intervening cause could independently act upon him. It would seem quite foreseeable that the victim in Kibbe would die from freezing to death (hypothermia).  But the death was from being hit by a truck. If the only danger that the accused must foresee is the possibility of death, then the specific cause is immaterial. But what if the particular manner of death has to be foreseeble? The court found that it was.  But what if death occurred by unforeseeable means, e.g., the victim was hit by a meteorite while lying in the icy cold ditch?  Does this mean that in order to satisfy the proximate cause (foreseeability) requirement one must be able to reasonably foresee not only the death of the victim but the particular manner of death?  If we say yes, then the question becomes how precisely must the reasonable person be able to foresee the manner of death. Most of us would probably say that the death by meteorite was not forseeable.

Causation Problems: These are samples of the sorts of causation hypos based on intervening independent or dependent that one may encounter on a law school or  multistate bar exam:
(1 ) A places poison by the bedside of his wife, intending that she drink it.  During the night she dies of a                   heart attack without having drunk the poison.  (No causal relation between conduct and result.)
       (2) A attempts but fails to shoot his wife, who then boards an airplane to leave town and get away from A                  and is killed in a mid-air collision with another plane.  (Dangerous force that comes to rest and/or                         voluntary human intervention.  Coincidence - independent intervening cause -not foreseeable.)
       (3) A shoots at B, intending to kill him, but the bullet misses. However, B dies of fright from being shot at.                  (Intended consequences - estoppel. Response - dependent intervening cause - not abnormal.)
       (4)  A, drunk at the wheel of his car containing three kids, is speeding along the highway when he crashes                into a truck that is stalled in the road.  It is nighttime, and the truck has no lights on to warn approaching               cars; the three kids are killed in the crash.  (Coincidence - independent intervening cause -                                   foreseeable.)
       (5) A throws a live hand grenade into a room of people; B, one of the people, then throws it out the window              where it explodes and kills X, Y, & Z.  (Response - dependent intervening cause-not abnormal.)

The professor will provide you with seven causation problems when he gives the quiz that covers causation. He'll also give you the answers. Watch for those. If he hasn't done so yet, remind your instructor to provide you with the seven causation problems on this site's essay quiz page. See also Queries for more sample questions on causation.

MPC Causation - The MPC, in Section 2.03, relies strongly on the "but for" actual cause test of causation. Unlike the c/l, the MPC doesn't expressly utilize "proximate cause" (legal cause)  as a vehicle to limit liability. The MPC, unlike the TPC, does not speak of concurrent causes. Instead, the MPC asks whether, in light of the circumstances, the D caused the prohibited result with the level of culpability required by the definition of the offense. When the actual result differs from the result that is planned or risked, the issue of whether there will be causation depends on the required culpable mental state. When the result must be caused purposefully or knowingly, causation occurs if the actual result differs from the designed or contemplated result only in that a different person or property in injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that actually caused or  when the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote to have a just bearing on the actor's liability or on the gravity of his offense. In crimes where recklessly or negligently causing the result is a element of the offense and the actual result is not within the risk of which the actor is aware (reckless) or of which he should be aware (negligence), causation exists if the actual and probable result differs only in that a different person or property is injured or affected or that the probable injury or harm would have been more serious or extensive than than actually caused or the actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a just bearing on the actor's liability or on the gravity of his offenses. In strict liability offenses, the MPC says that when a result is a material element of an offense, causation occurs only when the actual result is a probable consequence of the actor's conduct. Actual result in a criminal homicide case means death in the manner in which it actually occurred. As you can see, there is considerable wiggle room under the MPC definition of causation.  Notice that under the MPC if D's purpose is to harm V1 and D accidentally harms V2, D is liable for causing harm to V2 (C/L deals with this problem under the so-called "transferred intent" doctrine.). The MPC does not utilize the fiction of "transferred intent" in situations where a different person or different property is injured or affected. Instead, the MPC (and the TPC) uses the concept of causation to deal with the difference between what actually occurred and what the actor desired, contemplated or risked when a different person or property was injured harmed or otherwise affected. See Sections 2.03 MPC & 6.04(b) TPC. Note also, if D causes less harm than desired, contemplated, or risked, D is liable based on the harmful result actually caused.

TPC Causation - Section 6.04 TPC contains the Texas rule of causation in one-fourth of a page or less. The liberal Texas causation statute employs an initial "but for" (factual) test limited only by a coupled escape clause that breaks the chain of legal causation only when there is a concurrent cause that was clearly sufficient to cause the result and the conduct of the actor was clearly insufficient to do so. The Texas approach indicates that the defendant's conduct does not have to be the sole cause of the result but must be a major contributory causal factor.  See Jones v. State, 644 S.W.2d 530 (Tex. App.- Corpus Christi 1982). Notice how the Texas court avoided applying that standard in Dowden v. State, 758 S.W.2d 264 (Tex. Crim App. 1988), affirming a capital murder jail escape conviction where one jailer shot and killed another jailer; perhaps the most intelligent judge ever to sit on the Texas Court of Criminal Appeals, Sam Houston Clinton, wrote about the Texas causation statute and whether it applied in Dowden to prevent legal causation under the concurrent cause calculus; the rest of the court, in an opinion by Onion, affirmed the conviction, relying on a California shield case involving depraved heart murder, a type of common law murder not even contained in the TPC. Dowden simply points out the courts will sometimes bend over backward to avoid facing the rare statutory issue of causation. See also Pettigrew v. State, 999 S.W.2d 810, 812-13 (Tex.App.-Tyler 1999, no pet.) , affirming the murder conviction of defendant who shot at a rival gang resulting in an innocent bystander's being shot by a member of the rival gang, where no concurrent cause issue was raised.


Judicial interpretation of statutes: This is a subject that demands far more time than I am going to give it. But let's look a few of the rules of statutory construction, with passing reference to Texas, the MPC and the USSC.

An ambiguous criminal statute which might be considered overbroad or vague by one interpretation will often be narrowly construed, but as so construed, upheld  by the courts. The rule of construction is that where a statute is susceptible of being construed in two ways, one of which makes it of doubtful constitutional validity and the other of which avoids such questions, the duty of the court is to adopt the construction that avoids the doubtful construction. See Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996); Morehead v. State, 807 S.W.2d 577 (Tex. Crim. App. 1991); Anderson v. State, 21 S.W.2d 499 (Tex. Crim. App. 1929). However, a court may not  assume the legislative prerogative and rewrite a statute in order to save it if the statute is not readily subject to a narrowing construction. See Olivera v. State, 806 S.W.2d 546 (Tex. Crim. App. 1991).

The plain meaning rule of construction means that the plain meaning of the words of a statute must be applied, even if the statute seems ill-advised. However, courts are allowed to take notice of obvious errors in drafting.

Another rule of statutory construction simply requires that ambiguous criminal statutes be construed strictly, i.e., in favor of defendants. This approach is reflected by the Latin phrase "a verbis legis non est recedendum." This phrase means, "From the words of the law there must be no departure," i.e., statutes must be strictly construed. This rule of strict construction is also known as the rule of lenity. The rule of lenity comes into play only when legislative intent cannot be determined. The USSC has mentioned it often and applied it on occasion. See McNally v. United States, 483 U.S. 350 (1987; Cleveland v. United States, 531 U.S. 12 (2000). Note that the Texas Penal Code expressly disavows the rule of lenity in Section 1.05(a) TPC which says that the rule that a penal statute is to be construed strictly does not apply to the Texas Penal Code. Similarly, the Model Penal Code does not recognize the rule of lenity. See Section 1.02(3).

A further rule of statutory construction tells us that if two criminal statutes, one general and one specific, address the same subject but require different outcomes, the specific statute controls and will be applied rather than the general one.

Although a jurisdiction may not recognize common law crimes, if a statute uses a term that is undefined in the statutes but has a well defined meaning at common law, the courts may rely on that common law meaning in trying to define the term. See United States v. Turley, 352 U.S. 407 (1957) indicating that while there is no federal law of crimes, the common law meaning of undefined term will be instructive.

An additional rule of construction is that the more recently enacted criminal statute is held to govern when it covers the same subject matter as an older criminal statute.

The rule of expressio unius est exclusio alterius  (the expression of one thing is the exclusion of the other) (1) is a principle in statutory construction that hen one or more things of a class are expressly mentioned others of the same class are excluded.

The rule of ejusdem generis (of the same kind or nature) (1), (2), (3), (4) holds that general words (as in a statute) that follow specific words in a list must be construed as referring only to the types of things identified by the specific words.

The rule of in pari materia (upon the same matter or subject) (1) is that statutes on the same matter or subject are to be construed together.

Finally, where the meaning of a statute is not plainly clear, courts may resort to the following to decipher its meaning:

  • the history of the statute in terms of conditions that may have precipitated it
  • the wording of the statute
  • a comparison with similar statutes in other jurisdictions
  • rules of statutory construction (see above)
  • public policy
  • interpretation of the statute by lower courts and/or enforcement agencies
  • the views of learned legal commentators   

A word about the Model Penal Code's internal rules of construction. First, Section 2.02(3) MPC tells us what to do when we are faced with crime with a material element that does not have an express mental state attached to it. In such instances, we attach recklessness to that material element. Second, Section 2.02(4) MPC tells us that when a culpable mental state is required but the statute does not distinguish which material elements it applies to, we apply the mental state of all the material elements unless the legislature has plainly expressed otherwise, e.g., a contrary purpose plainly appears. Third, Section 2.02(5) MPC sets out the hierarchy of mental states whereby proof of a higher level of mental culpability establishes a lower level, e.g., negligently can be established by proof of purposely, knowingly or recklessly;  recklessly can be established by proof of knowingly and purposely; knowingly can be established by proof of purposely, purposely can only be established by proof of purposely. Here are the relevant provisions of Section 2.02 MPC with my underlining, italics and comments in red.

  • (1) Minimum Requirements of Culpability. Except as provided in Section 2.05, 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. (Section 2.05 provides that the requirements of culpability prescribed by Sections 2.01 and 2.02 do not apply to (a) offenses which constitute "violations" unless the culpability requirement is included in the definition of the offense or the Court determines that its application in consistent with effective enforcement of the law defining the offense or (b) offenses defined by statutes other than the MPC, insofar as legislative purpose to impose liability for such offense or with respect to any material element plainly appears. Within its ambit, the MPC restricts what we think of as strict liability crimes to "violations" as defined in Section 1.04(5) which also states  "A violation does not constitute a crime and conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.")
  • (2) Kinds of Culpability Defined. (Here the MPC defines the four kinds of culpability, i.e., purposely, knowingly, recklessly and negligently.)  
  • (3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto. (The MPC's default position when no culpability is specified for a material element of an offense is that proof of recklessness is sufficient to establish that material element.)
  • (4) Prescribed Culpability Requirement Applies to All Material Elements. When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears. (The MPC internal rule of statutory construction re a mental state assigned generally without indication as to which material element it applies is that this mental state will apply to all material elements, unless a contrary purpose is plainly apparent. So if there is only one mental state mentioned in the offense, that mental state will apply to all material elements, unless a contrary purpose of the legislature is plainly apparent.)
  • (5) Substitutes for Negligence, Recklessness and Knowledge. When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely. (Under the MPC there is a hierarchy of mental states. In descending order they are purposely, knowingly, reckless and negligently. This provision means that proof of a higher degree of culpability than charged constitutes proof of the lower level of culpability. Thus, proof that a person acted purposely is also sufficient to prove that s/he acted knowingly, recklessly and/or negligently. Proof that s/he acted knowingly will prove reckless or negligent action. Proof of recklessness will also prove negligent action.)
  • (6) Requirement of Purpose Satisfied if Purpose Is Conditional. When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense. (This situation arises when the statute requires the defendant to have a purpose but the defendant's purpose is conditional, e.g., D breaks into V's apartment with intent to rape V unless V is not alone. This would be burglary. D steals V's car, intending to keep it permanently unless D wins the lottery. This would be theft. Also, this provision would mean that the defendant is not allowed to negate a proscribed purpose by requiring the victim to comply with a condition that the defendant has no right to impose. See for example Holloway v. United States, 526 U.S. 1 (1999) where D was liable for carjacking if he took the car with the intent (purpose) of grievously injuring or killing the driver if necessary to steal the car. See also McKinnon v. United States, 644 A.2d 438 (D.C. App. 1994))
  • (7) Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist(This provision of the MPC appears to include "wilful blindness" within the concept of knowledge.)
  • (8) Requirement of Wilfulness Satisfied by Acting Knowingly. A requirement that an offense be committed wilfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears. (Under the MPC a requirement that an offense be committed wilfully is met if the person acts knowingly re the material elements, unless it is apparent that there is a purpose to impose further requirements of culpability.)

Let's skip a line and turn to the Texas Penal Code's approach to construction of its contents. Title 2, Section 6.02 TPC provides as follows:

  • (a)  Except as provided in Subsection (b), a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires. (Unless the definition of a crime plainly dispenses with a culpable mental state one of these four culpable mental states is required in every criminal offense.  Note that the TPC does not speak in terms of "material elements" as does the MPC. Instead, the TPC speaks of culpability re conduct. Remember, under Section 1.03(b) TPC,  the provisions of Titles 1, 2. and 3 apply to offenses defined by other laws outside the TPC, unless the statute defining the offense provides otherwise.)
  • (b)  If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element. (Let's consider an example of this rule of construction. If you look at Chapter 49 TPC dealing with Intoxication and Alcoholic Beverage Offenses you will see that the various offenses described in this chapter, e.g., public intoxication, DWI, BWI, FWI, intoxication assault, and intoxication manslaughter, do not contain a culpable mental state. If we apply Section 6.02(a) and (c), it may seem that we would have to read recklessness (the default culpable mental state) into each of those Chapter 49 crimes. But look at Section 49.11 TPC and you will see an example of the legislature has plainly dispensing with any mental element, making all of these strict liability offenses.)
  • (c)  If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b), intent, knowledge, or recklessness suffices to establish criminal responsibility. (Here you can see that when the definition of an offense does not plainly dispense with the requirement of a culpable mental state but does not state what the culpable mental state is, recklessness will be read into the offense as the default culpable mental state.)
  • (d)  Culpable mental states are classified according to relative degrees, from highest to lowest, as follows: (1)  intentional;  (2)  knowing; (3)  reckless; (4)  criminal negligence. (Here is the TPC hierarchy of culpable mental states in descending order.)
  • (e)  Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged. (Like the MPC proof of a higher culpable mental state constitutes proof of the lower culpable mental state.)
  • (f)  An offense defined by municipal ordinance or by order of a county commissioners court may not dispense with the requirement of a culpable mental state if the offense is punishable by a fine exceeding the amount authorized by Section 12.23 TPC.

In connection with the various cases that we encounter in the first couple of assignments where courts trying to decipher the meaning of words and phrases in laws and the legislative intent underpinning them, notice that Texas has a Code Construction Act in Chapter 311 of the Government Code that is directed by Section 1.05(b) TPC  to be used by courts for the purpose of sorting out the meaning of statutes. See Sections 311.001 - 3111.034, Government Code

On the issue of statutory construction generally, see Uniform Statute and Rule Construction Act.

Re rules of construction used by the USSC, see this 12-page pdf compendium of rules used by the Rehnquist court.


Law cannot persuade where it cannot punish.

The greatest incitement to crime is the hope of escaping punishment.
Cicero, 50 B.C.

As it will be in the future, it was at the birth of man.
There are only three things certain, since social progress began:
That the dog returns to its vomit, That the sow returns to her mire,
And the hurts fool's bandaged hand, goes wobbling back to the fire.
Rudyard Kipling

The first rule of punishments, that no guilty man is acquitted if judged by himself.
Juvenal, Roman Poet

Distrust all in whom the impulse to punish is powerful.
Friedrich Nietzsche

Eye for eye, tooth for tooth, hand for hand, foot for foot,
burning for burning, wound for wound, stripe for stripe.
Exodus 21:23

Lock'em up and weld the door shut!

Vengeance is  mine; I will repay, saith the Lord.
Romans 12:19

The law has less teeth than a barnyard chicken.

The only purposes for which power can be rightfully exercised over any
member of a civilized community, against his will, is to prevent harm to others.
His own good, either physical or moral, is not a sufficient warrant.
John Stuart Mill, On Liberty (1859)

What if there were no minimum standards and
every man did that which was right in his own eyes?

The materials that follow touch on the principal purposes of punishment, the debate surrounding them, and the difficulty of assessing moral punishment. We will be asking ourselves a number of questions:
  • Why have punishment?
  • Does punishment require a justification?
  • What should we punish?
  • How should our punishment statutes be organized?
  • Who should be punished?
  • What is the proper punishment for the specific offender, i.e. how much punishment should be dished out? For example, is it fair to punish a person beyond his individual guilt, i.e., inflict disproportionately severe suffering?
  • Are we (the U.S.) an overcriminalized society with too many crimes and too much punishment?

A Few Facts About the Endpoint of the Criminal Justice System : In year 2015, the population of jails and prisons in the U.S. was 2,248,100 prisoners. Thirteen states have populations less than 2,000,000. Gathered in one place, the total jail and prison population would constitute our fourth largest city, between Chicago and Houston. On average, it costs over $18,000 a year to keep each of our Texas inmates locked up. New York spends more on building and upkeep of prisons than it does on public education. Almost a third of the black men in this country are in jail, prison, on probation or parole, or have lost their right to vote and the ability to find good employment because of convictions. Almost two-thirds of the some 220,000 in federal prison are there because of non-violent drug convictions. Arrests nationwide for simple marihuana possession are almost 800,000 a year. Nationally, there are more accused misdemeanants in jail unable to make bail and awaiting trial than convicted misdemeanants serving jail time sentences. Almost one-fourth of all the world's prisoners are in American jails or prisons. Texas has a huge prison system with roughly 175,000 inmates and about 440,000 on adult probation. Nearly 25% of those in Texas prisons are infected with hepatitis C, an incurable virus. In the 1990's Texas built one university and seventy-eight new prisons (1). Here in the Harris County Jail, we house around 8,500 prisoners (1), around half of which are persons awaiting trial but unable to make bail in the amount set by the trial court.  Seven million people in the U.S. are under supervision in jail, prison, probation or parole. More than 1.2 million men and women are licensed as lawyers in the U.S. Japan, with a population of 127 million, in 2015 it had around 32,000 trial lawyers (bengoshi) (1). This equates to approximately ~ 1 bengoshi for about every 4200 Japanese; the ratio in the US is 1 lawyer for about every 300 individual Americans. [Note: With a lawyer on every corner, shouldn't the U.S. have the most just (justice) society on the planet? Incarceration. ]

What is punishment?: Punishment is about appropriate societal imposition of stigma on a wrongdoer and consequent deprivation of liberty. Is it punishment when we hold a person in jail pending trial either because he can't make bond or is held without bond? See United States v. Salerno, 481 U.S. 739 (1987). When a person is involuntarily and committed to a mental hospital after being found not guilty by reason of insanity, is this punishment? When a person is required to pay punitive damages in a civil case, is this punishment? [Note: Punitive damages in civil case is a concept unique to the U.S. Generally, we can say that other countries do not consider a civil case as an appropriate place to socially punish a defendant. They leave that to the criminal law.] Is a tax imposed on dealers of contraband punishment? See Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767 (1994). Is in rem forfeiture punishment? See Bennis v. Michigan, 516 U.S. 442 (1996); United States v. Usery, 518 U.S. 267 (1996)  but see Hudson v. United States, 522 U.S. 93 (1997) holding that law that set forth civil sanctions should be deemed civil remedies even though they appear criminal. State laws that punish ex-felons after serving their sentences. (1)

Why Punish? - Purposes and Goals: Trying a person is easy compared with deciding what to do with him when he has been found guilty. The age-old solution for transgressors has been to punish wrongdoers. The idea may be to create a strong incentive (peine forte et dure - strong and hard punishment) to avoid certain conduct. Punishment may also be viewed as an object lesson in relative evil. This penal approach is found in most religious cultures, e.g., Christianity, Taoism, Islam, Buddhism, Judaism, etc.

Four to seven reasons are often given to rationalize the intentional imposition of suffering on a convicted criminal:

  • Retribution -  To enacting a just desert on the wrongdoer. (1) Basically, we are saying that the person has earned punishment and the fairness requires that he be given what he deserves. In this sense, punishment may be considered as good, regardless of its consequences, because the defendant deserves it. The just deserts philosophy of Immanuel Kant would impose a moral obligation to punish blameworthy conduct and a moral duty not to punish conduct that is not blameworthy. Notice that the MPC does not expressly embrace retribution as a general purpose of punishment. See Section 1.02(2) MPC. (Retributive Theory) (See Kant, Groundworks for the Metaphysics of Morals -1785)

  • Vengeance (Revenge) - To satisfy the community's and the victim's desire for vengeance and revenge (lex talionis - the law of retaliation). Satisfying the thirst for revenge may involve infliction of pain for its own sake, as an outlet for our own social aggressiveness and emotional instability. This may avoid feuds and self-help (1 - VIDEO) (2 -VIDEO "The Ox-Bow Incident" was the story of the lynching of innocent drovers by a posse that suspected them of cattle rustling; VIDEO of letter written by one of the innocents to his wife). (Retributive Theory)

  • Deterrence - To teach this particular offender (specific deterrence) and others who may be contemplating the crime (general deterrence) that they will suffer if they commit a crime and are apprehended. To the extent that he is used to deter the general populace, the offender is used as a "scapegoat." One of the problems here is determining how much punishment is appropriate to deter the offender and/or the population in general. Is it appropriate to punish the defendant more severely than his own individual case requires as a means of deterring others, i.e., punishment out of proportion solely to deter others? One might ask, in light of current recidivism statistics, does actual punishment specifically deter criminals? Can one argue persuasively that experience with the system teaches the would-be offender that detection is unlikely, prosecution is problematical, and punishment is so mild as to encourage the offender to commit future crime? Should this reason be particularly applicable to career criminals and repeat offenders who, we are told, commit a disproportionately high percentage of serious crimes? (Utilitarian Theory) (The patron philosophers of Utilitarianism are Jeremy Bentham -Principles of Morals and Legislation - 1780 and John Stuart Mill - Utilitarianism - 1863)

  • Educating the Public to Achieve Moral Impact - To use the criminal justice process and actualities of punishment in particular to inform and educate the citizenry of the society as to the minimum level of legally (not morally) acceptable conduct in the specified community and thus reinforce the moral social values represented by the legal prohibition. (Utilitarian Theory)

  • Restoration - To make the victim and/or community whole again by restoring things to the way they were before the crime. This concept includes compensation and restitution to victims. (Utilitarian Theory)

MPC and TPC Punishment References - Your punishment references to the MPC should focus on Sections 1.02 and 1.04 and Article 6. Read about the MPC approach to so-called "violations," i.e., non-criminal conduct. See Dressler p. 149. Your focus for Texas should be on Section 1.02 and Chapter 12 TPC as well as Arts. 37.07 CCP (the bifurcated two-step trial procedure for adjudicating guilt and assessing punishment in  ordinary felonies and Class A  and B misdemeanors) and Art. 37.071 CCP (the bifurcated trial for capital murder cases and the punishment issues that are submitted to the jury in capital cases); also, look at the Texas "Hate Crime" laws, Art. 42.014 CCP and Section 12.47 TPC, which take the unusual step of making certain motives a driving force of punishment by upping the range of punishment for crimes committed with those motives. You should also be aware of Article I, Section 30 , Tex. Const., establishing constitutional rights for crime victims; see also Chapter 56 CCP which includes statutory victim's rights and the use of victim impact statements, pursuant to Art. 56.03 CCP  and Article 42.037 CCP providing a procedure for  payment of restitution by the defendant to crime victims.

Texas is one of the majority of states that adhere to indeterminate sentencing. Indeterminate sentencing occurs when there is a statutory range of punishment, e.g., a 2nd degree felony carrying not more than 20 years and not less than 5 years, and a parole board that determines whether and when a convict will be released early from the sentence s/he is serving. In Texas, the convicted defendant is sentenced to a set term, e.g. 7 years, within the statutory range of punishment and is eligible for parole based on the set sentence. Whether the defendant will be paroled is left to the discretion of the Texas Board of Pardons and Paroles. See Chapter 508, Sec. 508.031 et seq, Government Code. For parole release procedures in Texas, see Sec. 508.141, Government Code. A minority of states have so-called determinate sentences where the convicted defendant serves a set sentence, e.g., 7 years, sometimes determined under sentencing guidelines, without benefit of parole. The federal system, with no parole available, is an example of determinate sentencing.

Look also at Art. 42.12 TCCP for the Texas law regarding "community supervision" (ne probation). Community supervision allows one to avoid having to serve a sentence in jail or prison and allows the convicted person to serve his sentence in the "free world." Texas changed all statutory references from "probation" to the more politically sanitary "community supervision" several years ago. Most old hands still refer to the concept as probation. You will find the Texas parole law (Parole involves discretionary release from prison after serving a portion of one's sentence to serve the balance of the sentence in the free world provided that the parolee abides by terms and conditions of parole.) in Chapter 508 of the Texas Government Code. [Are you getting the idea that many of our statutory laws in Texas wind up in discrete groupings known as "codes"?] Another highly relevant aspect of punishment in Texas is the recently enacted sex offenders registration law contained in Chapter 62 CCP. The ramifications of the sex offender registration program may mean that the convicted sex offender never ceases being punished during his or her lifetime. Consider how you feel about the propriety of criminalizing consensual deviate sexual between homosexuals. Until the Lawrence case, Texas did so in Section 21.06 TPC.

We don't have appellate review of sentences in Texas; the sentence will stand, so long as it is within the statutory range of punishment for the offense and doesn't violate a constitutional provision, e.g., the Eighth Amendment prohibition against cruel and unusual punishment.

Some Thoughts on Punishment - The punishment issue is both complex and crucial to the effective working of the  criminal law. Indeed, the entire pretrial and trial process is devoted to identifying persons who are to be intentionally subjected to suffering by the government. The criminal justice process must deal with questions such as: Why do some people behave and others don't? Who should be punished for what, e.g., how do we define crimes and defenses to crime? How much punishment should be imposed for a particular violation by a particular offender, e.g., aggravating and mitigating circumstances, three-strikes-and-you're-out, etc.? What method of punishment, e.g,. restitution, curfew, probation, jail, prison, parole, half-ways houses, electronic monitors, implant tranquilizers, involuntary castration, prefrontal lobotomy, should be used? How about "restorative justice" that is modeled on a punitive process that includes the convict being confronted by the victim, experiencing shame, paying restitution,  and accepting responsibility for wrong-doing?

The types of punishment that are meted out have morphed as society has changed. For instance, present day American criminal justice does not allow burning at the stake, drawing and quartering, public whipping, mutilation/branding, transportation (exile), or other old standbys of previous ages. But we do still allow a death sentence, mostly by poison, though one can still be hanged in Washington, Delaware, and New Hampshire and shot to death by firing squad in Utah, Idaho, and Oklahoma. The  electric chair, which was invented and tried out for the first time on 8-6-1890 at the Auburn State Prison in New York, is still around, though it never has worked as humanely as envisioned. (The Attorney General of New York fainted at the stench of burning flesh from the smoke of first-to-be fried William Kemmler's charred flesh and brain.) If you're lucky, as was the case with 39-year-old Texas Death Row inmate Joseph Paul Jernigan who donated his body to science, when they kill you, they freeze you and thin-slice you into the Internet's famous "visible man."  Unlike the old common law, the current choice of form of punishment is not death, but rather incarceration in jail or prison. Those who are interested in the death penalty can find a substantial amount of information on the web. Here are a few favored death penalty sites: Cornell, ACLU, Derechos, and DeathInfo.

The current trend is toward longer sentences and more people warehoused in jails and prisons, particularly for controlled substances offenses in the seemingly unwinnable "war against drugs". (Some contend that the war against drugs is a monumental fraud and that drugs, the second largest trading commodity in the world, are the basis for many economies, enriching banks and making a farce of some judicial systems.) Prison building and management has become an industry with large corporations, e.g., Wackenhut Corrections Corp, thriving as a purveyor of houses of punishment, as states contract out the housing of their prisoners. The two things we do know are that most of Americans sent to prisons eventually get out and return to civilian life and that some come back.

Two Philosophies of Punishment for Criminal Wrongdoers - How do we know when the sentence is the right one?

In his 1819 book An Essay On Crime and Punishments, Cesare Beccaria said, "Every act of authority of one man over another, for which there is not an absolute necessity, is tyrannical. It is upon this then that the sovereign's right to punish is founded; this is, upon the necessity of defending the public liberty, entrusted to his care, from the usurpation of individuals; and punishments are just in proportion, as the liberty, preserved by the sovereign, is sacred and valuable."  In his 1859 book On Liberty, John Stuart Mill stated the principle that "the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community against his will, is to prevent harm to others." But see James Fitzjames Stephen's, Liberty, Equality, Fraternity, (1873), a rebuttal/reply to Mills.

Sentences manifest the punishment philosophy of our society as reflected through the decisions of jurors, judges, and legislators. The retributivist among the decision makers will emphasize "just deserts" and proportionality. The utilitarians will employ sentences to lower the crime rate and protect the public.

Near the heart of the major issues issues in criminal law is the issue of punishment, the deliberate infliction of harm as a response to past criminal conduct. There are certain types of conduct that are so obviously wrong that the propriety of punishment can ordinarily be assumed. Other crimes may be only a matter of social engineering, so that the appropriateness of punishment  depends primarily on the legislative objective. In every case, whatever the philosophy, to determine punishment our system of justice requires that we examine the particular conduct of the person to be punished.

Herbert Packer, a highly respected law professor who taught at Stanford Law School, wrote an incisive book, Limits of the Criminal Sanction, in 1968. Consider briefly what Professor Packer said in his book. Packer believed that there are only two ultimate purposes to be served by criminal punishment: First, the deserved infliction of suffering on wrongdoers and retribution (the "retributive theory"). Second, the prevention of crime (the "utilitarian theory"). Packer maintained that the purposes of the retributive theory and the utilitarian theory are not inconsistent and can coexist. In fact, he said that it would be socially damaging to discard either.

These two theories of punishment differ considerably. Retributive justice emphasizes the past - what a person has done. Utilitarian theories emphasize the hoped-for future, i.e., how punishment may improve the offender or his behavior afterward. Let's look a little closer at each theory:

  • The Retributive (Strict Justice) Theory - This theory is based in part on the justness of paying the offender back or restoring an equivalence to redress or erase an unfair advantage. Packer states that retribution is part of man's nature, i.e., man is responsible. When he makes wrong decisions, he should be punished. It almost seems moral that wrongdoers suffer for their wrongs.  He says that the desire for revenge on those who inflict wrongs on us is natural - we inflict revenge through the constituted authority rather than by self-help. The retributive theory may not be popular with intellectuals, but, among the citizenry, it is a common belief that "the criminal should pay his debt to society." This theory emphasizes the past, what the defendant has done.

  • The Utilitarian Theory - Packer called the purpose of preventing or reducing  the incidence of crime or antisocial behavior the utilitarian purpose. This approach may reject retribution and vengeance on the ground that there is no sense in making people suffer unless some type of secular good can be shown to flow from so doing. Where the  retributive theory focuses on just desert, the utilitarian theory focuses on social protection and future consequences. Utilitarian theory is forward looking. It thinks in terms of modifying future behavior. i.e., how punishment may improve the defendant or his behavior afterward. In contrast, retributive theory centers on past behavior, i.e., the act committed by the offender.

Sentencing Guidelines - Until 2005, somewhat harsh and inflexible mandatory sentencing guidelines existed at the federal level for individuals and organizations. [Note: If you have Westlaw, I encourage you to visit the Westlaw Federal Criminal Justice - Federal Sentencing Guidelines database (FCJ-FSG); if you don't have access to Westlaw you can download the U.S. Sentencing Guidelines for free or buy a copy from West; also take a look at the book Federal Sentencing Law and Practice in the Westlaw Federal Sentencing Law database (FSLP). Notice, however, that in 2005 the USSC, in the case of United States v. Booker and Fanfan severely restricted the force of the Guidelines by holding them advisory only. This was the outgrowth of the USSC view that the Sixth Amendment right to trial by jury is violated when judges are given the power to enhance sentences based of finding facts that are more properly left to determination by juries. See this Blawg and Motions to bone up on the current status of sentencing guidelines.] Some states also utilize either mandatory or discretionary sentencing guidelines. Mandatory state guidelines will have to comply with Blakely v. Washington, 542 U.S. 296 (2004) a precursor of Booker and Fanfan, 543 U.S. 220 (2005). See CCJA Pretrial Motions. Advisory sentencing guidelines are in part a legislatively imposed "just deserts" form of punishment; they typically suggest a sentence within a narrow range. Many judges do not want to surrender their discretionary sentencing power to sentencing guidelines; this was particularly so when they were mandatory..    

If we don't trust the postal service to deliver the mail or the IRS to equitably enforce the tax laws, should we trust the government with the power to put people to death? Does the public judge politicians according to what they say about crime and not what they accomplish?

The Plain Truth About Crime and Punishment: There are no sweeping solutions. We can't afford to ignore either prevention or punishment. The history of crime and punishment is one of trial and error. We are still trying to determine the questions, answers, and workable solutions. Here are discussions of the philosophy of punishment and the legality of punishment. This audio tape presents philosopher Jeremy Bentham's (1) thoughts re the propriety of punishing consensual private homosexual conduct between adults, a question that our own USSC struggled with in Bowers v. Hardwick, 478 U.S. 186 (1986) and then later in Lawrence v. Texas, 539 U.S. 558 (2003).

Do you feel that we have glorified victimhood in the sense that we allow weak people to come up with designer defenses? Does the modern day "shock" media, e.g., one episode of "the Best of Jerry Springer" (an oxymoron), promote shameless conduct to the extent that people are being taught not to feel shame for seemingly outrageous conduct?  If we are sincere in decrying violence, should we stop displaying so much pleasure in experiencing it vicariously? Do we ever tire of spectacles? Do the same people who drive with their car doors locked, keep guns under their beds, sleep soundly only with the alarm armed, and demand death sentences and three-strike laws, also revel in soap operas like the O. J. trial or a prison interview of Charles Manson or inside information about "American Taliban" John Walker Lindh, who pled guilty for a 20-year plea-bargained sentence?  What do we know of prisons? Here's some interesting data on burgeoning prison populations. Like Bushrod, who seems proud of having spent a few, days in jail on traffic warrants, most members of our group have not done hard time in jail or prison. We have no real idea what the incarceration experience is like. (1 - the ACLU on prisoner's rights)

Crime, an authentic event, seems to be a fact of the human species. Perhaps our study of crime should begin with knowledge of ourselves. Is it true that each of us carries the seeds of good and evil? Are the instincts of morality and immorality constantly at work in each of us? Is is fair to say that all we despise, loathe, reject, condemn, and seek to convert by punishment the criminal trespasses of others? Does the propensity for crime reside in seeds of evil that can spring from any of us? How do you feel about vigilante justice - getting even - taking the law into ones own hands the way our comic book superheroes, e.g., Batman, Ironman, Spiderman, etc., and cowboy movie heroes, e.g., Costner and Duvall in Open Range, do?

Notes re recent cases on punishment: The USSC determined that the stringent California "Three Strikes and You're Out" law did not constitute Eighth Amendment cruel and unusual punishment that is grossly disproportionate to the crime when applied to the life sentence meted out to a criminal previously convicted of four serious or violent felonies (three burglaries and a robbery) whose primary offense was theft of three golf clubs from a pro shop. See the California "Three Strikes" case, Ewing v. California, 538 U.S. 11 (2003). No death penalty for juvenilesRoper v. Simmons, 543 U.S. 551 (2005) determined that it is a violation of the cruel and unusual punishment provision of the Eighth Amendment to execute a juvenile offender who was older than 15 but younger than 18 when s/he committed a capital crime. The net effect is that our society will no longer sentence anyone to death for a crime committed while younger than 18. For many years, Section 8.07 TPC has provided "No person may... be punished by death for an offense committed while the person was younger than 18 years." No life without parole for nonhomicide crimes of juveniles - Graham v. Florida, 560 U.S. 48 (2010) (1) held that the cruel and unusual punishment clause prohibits a juvenile offender from being sentenced to life in prison without parole for a nonhomicide crime. No mandatory life without parole for homicide crimes of juveniles - Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012)  held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders. No death for penalty for retarded offenders - In Atkins v. Virginia, 536 U.S. 304 (2002) the USSC barred the execution of mentally retarded offenders. Death by lethal injection okayed. On the issue of the method that society uses to execute, the USSC in Baze v. Rees, 553 U.S. 35 (2008) determined that the typical method of executing by lethal injection is not violative of the Eighth Amendment ban on cruel and unusual punishment. Death for aggravated murder permissible. Pulley v. Harris, 465 U.S. 37 (1984) established that the death penalty is not cruel and unusual punishment in every murder case. The death penalty is currently available for aggravated murder, but it is plausible that it might be disproportionate to some murders. Death for rape of adult or child won't stand. However, The USSC did find in Kennedy v. Louisiana, 554 U.S. 407 (2008) that the death penalty for rape of a child, where the crime did not result and was not intended to result in the child's death, was a violation of the ban on cruel and unusual punishment. See also Coker v. Georgia, 433 U.S. 584 (1977). [Note: The Kennedy case invalidates the 2007 Texas law permitting the death penalty in special circumstances of aggravated sexual assault of a child where the accused has previously been convicted of aggravated sexual assault of a child. Death penalty for child rape statutes in Montana, Oklahoma and South Carolina face a similar fate. See Bullets V - Sex Crimes]

Basic Principles re Death Penalty Statutes: Since the USSC outlawed the death penalty in Furman v. Georgia, 408 U.S. 238 (1972) and restored it in Gregg v. Georgia, 428 U.S. 153 (1976), Proffitt v. Florida, 428 U.S. 242 (1976), and Jurek v. Texas, 428 U.S. 262 (1976) several things are constitutionally clear in the USSC's capital sentencing jurisprudence: (1) Death penalty statutes must provide for guided discretion in imposing death; (2) Statutes cannot validly impose a mandatory death sentence See Roberts v. Louisiana, 431 U.S. 633 (1977); (3) The defense must be allowed to produce all mitigating factors. See Skipper v. South Carolina, 476 U.S. 1 (1986), Eddings v. Oklahoma, 455 U.S. 104 (1982), Hitchcock v. Dugger, 481 U.S. 393 (1987); Sumner v. Shuman, 483 U.S. 66 (1987) (4) The requirement that the sentencing jury must unanimously find a mitigating circumstance before it can be considered violates the Eighth Amendment. See McKoy V. North Carolina, 494 U.S.  433 (1990);  (5) Some aggravating circumstances may be too vague, See Godfrey V. Georgia, 446 U.S. 420 (1980); Maynard v. Cartwright, 486 U.S. 356 (1988). But see Walton v. Arizona, 497 U.S. 639 (1990), Arave v. Creech, 507 U.S. 463 (1993); (6) Capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in their sentences. See Ring v. Arizona, 536 U.S. 584 (2002). However, within the parameters of Ring, it appears still possible for a judge rather that a jury to make the life death decision. See Walton v. Arizona, 497 U.S. 639 (1990). (7) Complicitors (accomplices, aiders and abettors) of felony  offenses that result in capital murder but who do not kill or attempt to kill are not eligible for the death penalty unless it is shown that such complicitor either intended death to occur or anticipated that deadly force would be employed by the doer of the felony. See Enmund v. Florida, 458 U.S. 782 (1982), Tison v. Arizona, 481 U.S. 137 (1987); (8) A prosecutor's argument to the jury at the punishment phase of the capital case that the jury's decision is not the final decision is violative of the Eighth Amendment. See Caldwell v. Mississippi, 472 U.S. 320 (1985); (9) Victim impact evidence and evidence re  character of victim are permitted. See Payne v. Tennessee, 501 U.S. 808 ( 1991); (10) The Eighth Amendment prohibits execution of a person who is insane. See Ford v. Wainwright, 477 U.S. 399 (1986). See Art. 46.05 CCP.

Note on the Texas Death Penalty: There is insufficient space here to tackle the philosophical arguments pro and con for the death penalty. See Other Resources below and  Bushrod I, Asst. 4. Do note, however, that the only capital crime in Texas is capital murder. Capital murder, as defined in Section 19.03 TPC, differs from ordinary murder, Section 19.02 TPC, in that it requires proof at the guilty stage of the bifurcated trial of at least one specific factual aggravating circumstance listed in Section 19.03 that becomes an element of the crime of capital murder. It is only after the defendant has been convicted of capital murder that the issue turns to whether the defendant will receive the death penalty or life in prison without the possibility of parole (a serve-all calendar life sentence). This decision is made by a jury at the punishment stage of the bifurcated trial pursuant to the provisions of Art. 37.071 CCP. Pursuant to the statute, at the punishment hearing the prosecution and defense are given great leeway, e.g., the prosecution, after giving due notice, is allowed to prove the defendant's prior criminal history, the defense is allowed to put on virtually any mitigating evidence, etc. See Porter v. McCollum, 558 U.S. 30 (2009). Instead of returning a death or LWOP sentence, the jury is first asked to answer yes or no to one and sometimes two special issues, namely: (1) whether there is a probability that the defendant would commit acts of violence that would constitute a continuing threat to society, See Johnson v. Texas, 509 U.S. 350 (1993), and, (2) in cases in which the defendant is tried and convicted of capital murder under the theory that s/he was a complicitor, whether the defendant caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken. The Prosecution must prove each of these submitted issues beyond a reasonable doubt. The jurors then try to answer these two issues with a "yes" or "no." A "yes" answer requires unanimity of the twelve jurors. A "no" answer requires the agreement of at least ten jurors. Otherwise the answer is left blank. If the jurors answer these first issues submitted with a "yes," they then proceed to answer a third issue, namely: whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed. The jury is told that a defendant sentenced to life imprisonment without parole is ineligible for release on parole. Here, a "no" answer requires unanimity and a "yes" answer requires agreement of ten or more jurors. Inability to agree results in a blank answer. The trial court will sentence the defendant to death only if the first two issues submitted are answered "yes" and a the third or final issue is answered "no." Any other combination of answers or blanks results in a sentence of life without parole. See Franklin v. Lynaugh, 487 U.S. 164 (1988). See also Simmons v. South Carolina, 512 U.S. 154  (1994) holding that when the prosecution is relying on future dangerousness and the alternative to death is life without parole, the defendant has the right to have the jury told that life means life without the possibility of parole.

Other Punishment Resources

Note: On October 1, 2016, there were  2902 inmates on death row. In 201 the thirty-one states currently embracing the death penalty are as follows:  Alabama, Arizona, Arkansas, California, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas (1), Utah, Virginia, Washington, and Wyoming, plus U.S. federal Gov’t and the U.S. Military. The nineteen states without a death penalty include: Alaska, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin. The District of Columbia has abolished its death penalty. (1)

The Internet contains numerous resources that detail factual and philosophical information for and against the death penalty. (1 - Death Penalty Info Center) (2 - Amnesty) (3 - Wiki)  (4 - ACLU) (5 - Pro-Death Penalty) (6 - Cornell) (7 - Coalition to Abolish DP) (8 - Links)


(Video - 1)
(Video - 2)






Analyze this repeat video clip.


Suppuration from the BTK serial-killer at his sentencing hearing. Wikipedia provides some background information on this evil chap, who seems to have the moral conscience of a sewer rat.
Documentaries re BTK Killer
(1) (2)(3)(
(Numerous videos of BTK)


Defendant's Sentencing Statement
BTK Killer Case


Dahmer Serial Killings



(7 - county jail booking)



There is some physical injury here. Putting aside the issue of mens rea (culpable mental state) except as necessary to determine causation, analyze the scenario for factual (actual) and legal causation under the C/L, MPC, and TPC.

Caution: If you are offended by scatological humor, don't watch this one.



What legal duty, if any, does Vincent have to Mia in this world- class OD scene from Pulp Fiction? Assume that the two had been on a date and that the white powder in Vincent's coat pocket was potent heroin that Mia mistook for coke and snorted while Vincent was in the loo. If Vincent has no legal duty to seek help when he discovers her, could he be prosecuted for her death if he had simply left her on the couch, knowing that it was reasonably certain she would die from the OD? Explain.
Is there a necessity issue having to do with Vincent's battery of unconscious Mia with the hypodermic adrenalin-filled spike a bit later?



Sentencing Theory

Judge: You're charged with                    shoplifting. How do you plead?
Defendant: Guilty?
Judge: What'd you steal?
Defendant: A can of peaches.
Judge: How many peaches were in         the can?
Defendant: Five.
Judge: All right, I'm gonna sentence      you to five days in jail, one for           each peach.
Prosecutor: Your Honor, he also              stole a can of beans.

Two Houston, Texas, natives are the subject of this report on the specifics of how the death penalty is carried out in Texas on convicted capital murderers. Houston is the death penalty capitol of the USA and Texas executes more prisoners than any other state. Apparently these two murderers were crack addicts.

Here's another report on Texas executions. This one focuses on the fact that some of  the inmates subjected to execution were young when they committed their crimes.

Note: Roper v. Simmons,
543 U.S. 551 (2005) determined that it is a violation of the
cruel and unusual punishment provision of the Eighth Amendment to execute a juvenile offender who was older than 15 but younger than 18 when s/he committed a capital crime. The net effect is that our society will no longer sentence anyone to death for a crime committed while younger than 18.


An explanation of how execution was carried out in
"Old Sparky," the Florida  electric chair. This was before death by lethal injection became the predominant mode of killing.


Angola State Prison in Louisiana. Many of the inmates will die of old age, disease or occasionally at at the hand of another inmate. This report is about the geriatric prison population and the hospice facility on site at the prison.

Jailhouse Lawyers
C-Span Discussion
Convicted Felon - 98
Mumia Abu-Jamal

Last Rights
C-Span Discussion
Counseling Death Row Inmates

You've Go Nothing Coming
C-Span Discussion
Life Inside Prison from a Prisoner Convicted in Nevada of Manslaiughter

This C-SPAN Interview with the author of
Going Up the River: Travels in a Prison Nation
C-SPAN Interview
2010 Discussion of
State Prison Populations
C-SPAN Interview
2009 Discussion of
Sentencing & Prisons
C-SPAN Interview
2010 Discussion of
Declining Crime Rates
Snitching for the Government  in Return for a Get-Out -of -Jail- Free Card
(A Dangerous Practice?)




The FRONTLINE story of what happens to the thousands of mentally ill prisoners who are released into society after serving their terms of incarceration.

Bad Science in the
Todd Willingham Case

Frontline Exposes the Texas Death Penalty System
Death by Fire

Todd Willingham is executed for intentionally burning his three kids to death.
Except the fire was accidental!

His court-appointed defense attorney David Martin (1)(2) is proud of not believing in his client. See Ethics. Co-counsel was Robert C. Dunn.

Good firemen double as hillbilly forensic arson experts and get it wrong. Texas Governor Rick Perry tries to cover his own missteps; he sent Willingham to his death despite knowing of the new evidence from real experts that the fire was not set.

[Prayer: Master of the universe, please someday send Texas a governor who is a statesman rather than a politician - someone who will live to serve rather than serving to live.]

Here's an example of what could have happened to Willingham if he had been sentenced to life without parole. Judge Nancy Gertner  grants relief for ineffective counsel in a federal arson case.
United States v. Hebshie,
754  F. Supp.2d 89 (2010)

Mark Jensen for suffocating his wife and poisoning her with antifreeze


Harvard Justice Series

Bentham's Utilitarian Theory
Examined and Explained


Harvard Justice Series

Immanuel Kant's Anti- Utilitarian Philosophy  Examined and Explained


Harvard Justice Series

More of Immanuel Kant's
Anti- Utilitarian Philosophy
with Allusion to Clinton's Dodging the Truth
Explained and Examined

On the issue of sex offender commitment a la Kansas v. Hendricks, consult these NLADA links.

Read United States v. Comstock (2010) upholding 18 USC Section 4248 that permits civil commitment of mentally ill sex offenders after completion of their sentences under a Necessary and Proper Clause attack.

Prison Life

If you are a person of delicate sensibilities, you may not
want to know what goes
on in the prisons that
house over 2,000,000
of your fellows.

                 ( Female Prison)
            (Mentally Ill Convicts)

Brutality in U.S. Prisons
Predatory Behavior

County Jail
(The place where accused felons and misdemeanants are held pending trial and where convicted misdemenants serve their time)

2011 Discussion of
Rights of Crime Victims


When considering whether an act is voluntary, it may help you to ponder the difference between a wink a and blink.

Which of the two is a product of the conscious will?


Serial Killer Ted Bundy, sounding like a college professor, on the eve of his execution as he talks to (or cons) a posturing evangelist. This sadistic, necrophiliac killer of at least 30 women is lying big time about his family life. He was born out of wedlock, possibly the product of incest  between his mother and her father. 
Read the true facts in Wiki.

"Criminal law doesn't teach you or prepare you to do the right thing at the right moment the way religion, formal education, your family or even the Boy and Girl Scouts do."

Source Unknown
(Life Inside the Joint)


The Bystander Effect