PUNISHMENT FOR CRIME

Law cannot persuade where it cannot punish.

Proverb

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 should 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?
  

A Few Facts: Since year 2000, the annual population of jails and prisons in the U.S. has exceeded 2,000,000 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 $25,000 a year to keep each of the 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 those in federal prison are there because of non-violent drug convictions. Arrests nationwide for simple marihuana possession are almost 800,000 a year. Almost one-fourth of all the world's prisoners are in American jails or prisons. Texas has a huge prison system with roughly 165,000 inmates. 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. Here in the Harris County Jail, we currently house around 9200 prisoners, around half of which are persons awaiting trial but unable to make bail in the amount set by the trial court. We have roughly a million licensed lawyers in the U.S. Japan, with about half our population has around twenty thousand lawyers (bengoshi). The government run law school (the Legal Training and Research Institute) admits roughly 750 students annually and the group of lawyers grows by roughly 400 bengoshi annually.

What is punishment?: 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.

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, etc.

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

• Retribution - Enacting a just desert on the wrongdoer. 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 philosophy of Emanuel Kant would impose a moral obligation to punish blameworthy conduct and a moral duty not to punish conduct that is not blameworthy.
  

• 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?
  

• Rehabilitation - To reform the particular wrongdoer's general moral attitude of rehabilitate him as a socially self-sufficient person.
  

• Incapacitation (Restraint, Warehousing, Isolating) - To remove the offender from society and, thus, prevent criminal activity, with the exception of in-prison crimes, during the period of incarceration.
  

• 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.
  

• Vengeance - 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.
  

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 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 Chapter 56 TCCP which includes statutory victim's rights and the use of victim impact statements, pursuant to Art. 56.03 CCP. 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 Garner 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." 

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 ma 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 ma 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). Sentencing guidelines are in part a legislatively imposed "just deserts" form of punishment; they typically mandate or suggest a sentence within a narrow range. Many judges do not want to surrender their discretionary sentencing power to sentencing guidelines.    

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 legality of punishment.

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, 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?

Note: 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).  In  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. On the issue of the method that society uses to execute, the USSC in Baze v. Rees, __ U.S. __ (2008) determined that the typical method of executing by lethal injection is not violative of the Eighth Amendment ban on cruel and unusual punishment. However, The USSC did find in Kennedy v. Louisiana, __ U.S. __ (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]

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

CRIMINAL  HOMICIDE  (Discussed more fully in Bushrod I)

Homicide, the killing of one person by another, can be criminal or non-criminal. [It's the criminal ones that fascinate us. If you don't think so, take at look at FBI Famous Cases, Famous Trials, and the Crime Library.] Homicide crimes (1), (2) are the most common offenses in criminal law books and the most common crime included on law school exams in essay and objective questions. Your exam will involve one or more questions containing a criminal homicide. The reason is that homicide offenses contain all the classic elements of crime, e.g., mens rea, actus reus, causation and result. Homicides also may involve issues of provocation, justification and excuse. Suicide is not considered as equivalent to murder in American common law  and is not punishable as a crime in any American jurisdiction. At English common law, suicide was a felony equivalent to murder. Read Dressler to get the full view. Here are a few tips that will be of use to you as you study the doctrine of criminal homicide.

The first issue to determine in a possible homicide vis a vis feticide is whether the victim was a human being. See the Discussion at Defining Death of a Human Being below. When does a person become a person for purposes of the criminal homicide statutes? At common law, a fetus not born alive is not considered a human being; if it is born alive, it is a human being. The MPC takes a similar view in  and so did Texas (Take special note of this change in Texas Penal Code.) until September of 2003 when the definition in Section 1.07 (26) TPC of "individual" was amended to mean "a human being who is alive, including an unborn child at every state of gestation from fertilization until birth." "Death" is now defined in Section 1.07 (49) TPC, thusly, "Death includes, for an individual who is an unborn child, the failure to be born alive."  Section 19.06 (1) and (2) TPC seems to make it clear that the provisions of Chapter 19 - Criminal Homicide regarding the death of an unborn child do not apply if the conduct charged is "conduct committed by the mother of the unborn child" and " a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent, if the death of the unborn child was the intended result of the procedure." In addition, Chapter 19 does not apply to the death of an unborn child if the conduct charged was " a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent as part of an assisted reproduction as defined by Section 160.102 Family Code" or " the dispensation of a drug in accordance with law or administration of a drug prescribed in accordance with law." Thus, Texas has gone dramatically beyond the growing list of jurisdictions with feticide statutes. The Texas statute clearly treats the fetus - defined in Webster's dictionary as "a developing human, usually three months after conception to birth," as  as an individual. But it also treats the embryo, defined by Webster's as "the developing human individual from the time of implantation to the end of the eighth week after conception," as an individual for purposes of the criminal homicide statutes. In fact, the fertilized egg traveling down the fallopian tubes prior to implantation in the wall of the uterus would seem to be viewed as an individual protected by Chapter 19. However, destroying embryos that have not ever been implanted into the mother would not be criminal homicide because Art. 38.40 CCP provides, "In a prosecution for the death of or injury to an individual who is an unborn child, the prosecution shall provide medical or other evidence that the mother of the individual was pregnant at the time of the offense." One can visualize scenarios in which embryos that are negligently, recklessly, knowingly, or intentionally destroyed.  What happens if an embryo was created in a petri dish during an effort to assist reproduction of a married couple, but prior to implantation the male donor (father) requests that the embryo be destroyed but the female donor (mother) wants to have the embryo implanted. One thing is for sure, if the embryo is destroyed before being transplanted into the woman, there can be no prosecution for criminal homicide or injury to a child becase they will be no proof that the female was pregnant with the embryo sat the time fo the destruction. Things can get sticky in the civil arena. Suppose there is a written agreement between the husband and the wife that specifies that the frozen embryo is to be destroyed in the event of divorce. A divorce occurs.  Who owns the embryo?  See Roman v. Roman, 193 S.W.2d 40 (Tex. App. - Houston [1st Dist.] 2006, pet filed).

Re whether the victim was a person, the more accepted view at c/l was that if a fetus was born alive but died as a result of injuries suffered en utero, it was a person for purposes of the criminal homicide law. Prior to the enactment of the sweeping Texas Penal Code expansion of the definition of an individual, this was the approach taken in Texas prior to the sweeping change in definition of an individual. See Cuellar v. State, 957 SW2d 134 (Tex. App - Corpus Christi 1997). The ambit of risk for the applicability of strict liability homicide statutes, e.g, felony murder, intoxication manslaughter has expanded significantly with the expanded definition of an "individual." For example, it would now appear that responsibility for the strict liability offense of intoxication manslaughter, a second degree felony under Section 49.08 TPC, could apply in cases where a one day old embryo miscarried as a result of the intoxication of motor vehicle driver. What if it is a one car accident and the mother is the driver?

The next issue to determine in a homicide case is the voluntary act issue, i.e., was the killing the result of a voluntary act?

Next, ask yourself, "Was the killing an omission, i.e., was there a failure to stop  the death from occurring?" Did the omission (failure to act) violate a legal duty of action?"

Next, consider the issue : "When is a person dead?' This can be a very important issue as to causation. At c/l , when a person stopped breathing and his heart stopped, he was dead; in more modern days, many statutes (including those of Texas) provide for "brain death" of the whole brain  (a flat encephalogram or brain wave pattern) as the definition of death of a person who is on a respirator or other artificial life support. Be careful to know that the person at the end of life was alive when the actus reus occurred, e.g., when the doctor turns off the life support of a "brain dead" person (s)he is not guilty of murder in Texas because of our definition of death. But under the common law definition of death, the doctor would be guilty of causing the death of a person who had a cardiac and respiratory function because that individual would still be considered a person for purposes of criminal homicide.

Dates of injury and death may be important under common law. The common law year and a day rule said that a death that occurred more than a year and a day after the assaultive act that caused the death could not be a criminal homicide. This was an arbitrary rule of causation and in many jurisdictions the rule has been abandoned/abolished (Texas & MPC) or expanded to a larger number of years.

MURDER DEFINED (There were 15,854 murders and nonnegligent manslaughters the US in 2006.)

Mens rea of murder -  At common law, the definition of the crime of murder required that one person kill another with "malice aforethought." [Note: The MPC, See Article 210, Section 210.2 MPC, and Texas, See Chapter 19, Section 19.02 TPC,  do not expressly define murder in terms of "malice aforethought"; the descriptive state of mind "malice aforethought" is not used in either body of law. The MPC defines murder in terms of acting purposely or knowingly or recklessly with extreme indifference to the value of human life; the extreme recklessless form of MPC murder might be compared to the concept of common law "depraved heart/mind" murder. Texas defines murder in terms of acting intentionally or knowingly or intentionally inflicting serious bodily injury which causes death. Also, both the MPC and the TPC contain modified felony-murder rules, each of which differs from the other and from the c/l F/M rule.] At common law, there were no degrees of murder. All murder carried the same penalty, death.

"Aforethought" -  In terms of modern American law, the word "aforethought" is a superfluous modifier. It just means that the malice has come before the killing and not after the killing was accomplished. In early common law it briefly had a meaning somewhat similar to premeditation, but that connotation was abandoned as the law of murder evolved.

"Malice" - In the modern context, this is a somewhat complex technical legal term that encompasses four (4) states of human endangering culpable mental attitudes, namely:

• Intent to kill, including what we consider as acting knowingly under the TPC and MPC.
  

• Intent to inflict grievous (what we in Texas,see Section 1.07 TPC, call "serious") bodily injury that causes the injured person's death. [Jurisdictions differ in the way they define grievous bodily injury. See Texas' definitions of  "bodily injury" and "serious bodily injury" in Section 1.07 TPC.] In these scenarios, there may be causation issues when you have intervening medical neglect, e.g., a doctor or nurse negligently or recklessly treats the seriously injured victim in a manner that plays a part in the death.
  

• Depraved heart (abandoned and malicious heart, depraved mind) is a culpable state of mind characterized by an "I don't give a flip, throw all caution and concern for human safety to the wind, screw it" attitude of extreme (or gross or aggravated) recklessness in which one acts in utter disregard of human life, e.g., firing a gun into a crowded room to see the people panic, talking on a cell phone to one's coke supplier while going 110 mph in a drag race through a school zone crosswalk as tiny children leave the school, dropping a 50 lbs. concrete block from an overpass onto oncoming freeway traffic to watch the cars pile up, shooting an arrow straight up over a crowded beach to see where it will land, driving a motorboat at full speed through a group of swimmers as a shortcut to get a refreshing beer at a lakeside tavern, shooting into a passing passenger train to scare the passengers, etc.  The concept of a depraved heart or mind, indifferent to the value of human life, is not always an easy one for a modern jury to comprehend. This form of malice aforethought doesn't connote the existence of any clinical mental disorder The aggravating element that distinguishes depraved heart malice aforethought from ordinary recklessness is defined in some depraved heart jurisdictions as the existence of circumstances which evince utter disregard for human life, i.e., complete lack of concern. Note that Section 210.2 (1) (b) MPC provides that criminal homicide constitutes murder when "it is committed recklessly under circumstances manifesting extreme indifference to the value of human life." Note that Texas has no "depraved heart" or "extreme indifference to the value of human life" murder. See Section 19.02 TPC. Finally, on the question of whether depraved heart is unconstitutionally vague, recall that the USSC in Arave v. Creech, 507 U.S. 463 (1993), rejected a challenge to the Idaho capital punishment statute that uses "utter disregard for human life" as an aggravating factor.   
  

• Felony murder - The felony murder rule (FM) in its pure form says that it is murder if a person is committing a felony and someone dies during the attempt to commit or commission of the felony, irrespective of whether the death is foreseeable or not. Immediate flight or escape from commission of the felony is treated as part of the felony. It makes no difference whether the death is caused accidentally, negligently, recklessly, purposefully, or intentionally. This is an example of strict liability in its most extreme form insofar as severity of punishment is concerned. (Note: Think of the first assignment's Faulkner case involving the seaman who sets fire to the boat while committing the c/l felony of larceny of rum, and simply add to it the additional fact that someone is burned to death by the ensuing fire; the death of that someone would be a good example of c/l felony murder.) One big question in felony murder cases is: "Why hold the felon guilty of murder when the death occurs in a completely fortuitous or accidental way?" The reason sometimes given is that the FM rule is designed to encourage felons to commit their felonies without unnecessary violence that increases the risk to human life, i.e., the felon who wishes to avoid the FM  rule will commit her felonies is a safe manner. Many law school teachers believe that this doesn't work and that to treat such a person as a murderer is disproportionate punishment. So, we see a history of some courts limiting the scope of the FM rule.  The two most important limitations of the FM rule are probably: (1) In many jurisdictions, the felony must be a "dangerous" felony. It depends on how one defines "dangerous." The word dangerous might mean a felony that carries a substantial likelihood (high probability) of death or serious bodily injury. In determining this issue, a court could look at the crime in the abstract or it might decide that it is better to look at the crime applied in the particular case; [Note: The Texas FM rule applies to all felonies, but the actor has to commit an act that is clearly dangerous to human life. Is this a better approach than the CA. approach evinced by the Patterson case in Johnson?] (2) Merger or the "Independent Felony Doctrine" is a way of limiting the FM rule. Suppose the underlying felony is a crime of violence, e.g., as assault. If the underlying crime is a crime of violence such as assault, the merger theory is that that felony cannot be the underlying felony for purposes of the FM rule because it, the underlying felony, merges into the completed crime, i.e., the unlawful killing. The idea is that the purpose of the FM rule is to deter felons from acting in a way that creates violent harm. To illustrate the concept of merger, one might ask whether robbery would be an independent felony that would merge into the killing. Robbery is a crime that involves as element of assault in the sense that it involves a robber who relies on force or threat of force to obtain property. However, robbery would not merge into the killing; it would be an independent felony because it has an independent felonious purpose, i.e., to deprive an individual victim of his property, separate and apart from its violent assault aspect. (Texas has an extremely liberal FM rule insofar as merger is concerned. See Johnson v. State, 4 SW3d 254 (Tex. Crim. App.1999) and Lawson v. State,  SW3d    (Tex. Crim. App. 2001); only a few states refuse to acknowledge the merger or independent felony doctrine; most hold that an underlying felony assault would merge; perhaps, the Texas Legislature will eventually wise up and restrict what will qualify as the underlying felony for purposes of felony murder.) HYPO: Suppose that A commits an armed robbery and, during the commission of the robbery, the person being robbed, V, is accidentally killed. Could this be FM in Texas? Under what circumstances? Could this be capital murder in Texas? Could this be FM under the MPC? The c/l? Could this be a first degree murder in jurisdictions like CA that recognize degrees of murder (see p.166 of Johnson)? You will find an excellent discussion of FM in Cole, Killings During Crime: Toward A Discriminating Theory of Strict Liability, 28 American Criminal Law Review 73 (1991).
  

Important: Each of the previous four types of states of mind qualifies as "malice aforethought" under the common law which defined murder as the killing of one person by another with malice aforethought!!!

Statutory Degrees Murder - Remember, at common law there were no degrees of murder. The same might also be said in a technical way for Texas and the Model Penal Code, but each of them do recognize the existence of a type of a special aggravated murder, e.g., capital murder, Section 19.03 TPC., in Texas, that alone is deserving of the death penalty. In Texas, capital murder is not assigned a degree. It's simply capital murder and carries either life or death depending on whether the prosectuiion is seeking the death penalty and how the jury answers the special issues under Article 37.071 CCP. The highest felony degree range of punishment in Texas is the first degree felony which carries imprisonment from 5 to 99 or life.

Many states recognized long ago that the old common law way of dealing with murder, i.e., death for all convicted murderers was too harsh. So, some states, beginning with Pennsylvania, divided murder into two and sometimes more (I believe PA. presently has three degrees of murder.) separate degrees of the crime of murder. Each of these separate statutory degrees of murder is a separate crime with its own definitional structure. In the degrees of murder jurisdictions, first degree murder typically carries life or death as the only possible punishments (much like Texas capital murder). Every state with degrees of murder has its own particular statutes to define the various degrees of murder. So, you have to go to the particular statutes to determine the elementary composition of the crime. You can do this, for example, by going to the California degrees of murder statute on p. 166 of the Johnson casebook and seeing the difference between first and second degree murder in California. Most state statutes typically incorporate three aggravating categories of homicide that constitute first degree murder. Here they are: (1) homicides committed by a particular manner or means such as lying-in-wait (assassination), poison (the way we kill killers) or torture (the skin 'em alive method would qualify); (2) homicides committed during the commission of certain named and potentially violent felonies; and/or (3) homicides committed with deliberate premeditation.

On the issue of premeditation and the wisdom of using it as a factor that single-handedly raises a 2nd degree murder to a first degree murder, there is considerable disagreement. Notice that Texas and the MPC do not utilize premeditation as an aggravating circumstance that will raise ordinary murder to capital murder. In many states that do use premeditation as an aggravating  circumstance, the true meaning of premeditation as planning over a considerable period of time has been abandoned. In these states, the courts say that premeditation occurs if the actor simply thought about doing the killing before doing it. Thus, in these states an emotional killing done on the spur of the moment typically qualifies as a premeditated killing (first degree) killing.

You may wonder what is normally considered to be a second degree killing in a degrees of murder jurisdiction. Typically, all murders that do not qualify as first degree murders are lumped together as second degree murders. Since the common law did not recognize degrees of murder and/or premeditation, you should know what constitutes murder at common law in order to recognize what usually constitutes second degree murder in a degrees of murder jurisdiction.

[Mass murderers: As a matter of interest, we are told that mass murderers often display some of the following characteristics - they are typically male, reclusive, loners, aloof; from 30 -50 years of age, psychotic at the time of their homicidal conduct, with personality disorders, e,g,, narcissistic, paranoid, sociopathic, and/or schizoid; they often have aspirations that greatly exceed their grasp and tend to blame others (often inflicting the violence on their perceived nemeses) for their own individual failures; the homicides are premeditated and planned killings that display a conscious objective to kill and are usually precipitated by a perceived affront or insult; often the killings come without warning in that there is no antecedent violence or threat. In workplace killings, researchers tell us that the killer is often sullen, angry, depressed, inflexible, intimidating,and paranoid; the killer may be on a personal crusade, brittle at criticism, have a workplace grievance pending, discuss weapons, and/or feel mired in a hopeless situation.]    

MANSLAUGHTER DEFINED

At common law manslaughter was an unlawful killing without malice aforethought; it was not separated into voluntary and involuntary manslaughter. Eventually, manslaughter morphed into three separate offenses, i.e., voluntary manslaughter, involuntary manslaughter, and misdemeanor-manslaughter.

Voluntary Manslaughter

What is the human but a bundle of passion? Voluntary manslaughter was an intentional killing with adequate provocation that was committed in a sudden heat of passion before there had been enough passage of time for the passion to subside (cool down). The sort of provocation that would be considered adequate was the sort of provocation that would trigger sudden passion (anger or emotion) in an ordinary man. The  categories of adequate provocation that were recognized by the common law were few and narrow. What were the categories constituted adequate provocation at common law to reduce an intentional killing to voluntary manslaughter? They included: (1) a man observing his wife in an act of adultery, (2) a battery where the person in the grip of sudden passion has been struck by the victim of the killing, (3) observation of the seduction of one's young daughter. With reference to adultery, at common law a confession of adultery by a party to it was not considered legally sufficient to constitute adequate provocation. Concerning the subsiding of the heat of passion, the intentional killing  had to take place in the heat of passion, which required proof that not only was the accused in the grip of passion but that a reasonable person would not have "cooled down," i.e., that there had not been enough time for passion to subside in a reasonable person. If an intentional killing didn't qualify for voluntary manslaughter, it would typically be murder of the intent to kill variety of malice aforethought.

Today, many states allow words to raise the issue of adequate provocation and let the case go to the jury with both murder and manslaughter instructions. We saw examples of this in our casebook, e.g., the CA Berry case about the chef and the Israeli woman, Rachel. These states trust the trial judge to winnow out cases where the evidence simply doesn't raise the issue, but primarily entrusts the jury with the power and discretion to sort the provocation evidence out and decide whether to convict of manslaughter or murder.

The Texas Penal Code treats sudden passion procedurally as what may be best described as "mitigated murder." Rather than creating the crime of voluntary manslaughter, the TPC allows the defense at a murder trial to raise the issue of sudden passion arising from adequate cause at the punishment stage of the murder trial after the accused has been found guilty of murder. If the defense proves sudden passion arising from an adequate cause by a preponderance of the evidence, the punishment range for pen time is reduced from a first degree felony (a range anywhere from 5 years to 99 or life) to a second degree felony (a range anywhere from 2 years to 20 years). See Sections 19.01 and 19.02 TPC  Thus, Texas does not have a crime known as voluntary manslaughter, though we accomplish the same purpose with our mitigated murder approach. Ask yourself, is the TPC approach, making this a punishment issue,  more sophisticated than the c/l approach that creates the separate offense of voluntary manslaughter?

The MPC concept of sudden passion is broader and, perhaps, more sophisticated than the c/l or Texas concept; one way that one can commit the crime of manslaughter (there is no crime of voluntary manslaughter) under the MPC is to commit murder while the defendant subjectively is under an "extreme emotional disturbance for which there is a reasonable explanation or excuse" (EED). Notice that the word "provocation" is not found in the MPC manslaughter statute. See Section 210.3 (1) (b) MPC. Notice, also, that there is no set time limit or cooling off period. Brooders are not excluded from the EED claim under the MPC. The triggering event is not limited to a laundry list. There is no requirement of an act of provocation. Words or taunts may be sufficient. The objective standard of reasonableness is decided from the subjective viewpoint of the accused.

Suppose a person, who is in the grip of a lawfully recognized heat of passion or extreme emotion disturbance (EED), kills someone other than the source of the provocation. Suppose that the victim is an innocent party, as when A, adequately provoked by B, kills C, an innocent bystander. Will A be allowed to raise the issue of adequate provocation? This issue is known as third party provocation. The early c/l held that the provocation had to come form the person killed, but the later c/l allowed it to come from a third party. The MPC does not limit the source of the extreme emotional disturbance. However,  the TPC, Section 19.02(a)(2), indicates that the provocation must come from the person killed or someone acting with that person.

In a few states, there is a version of diminished mental capacity that reduces murder to voluntary manslaughter even though there is not any sudden emotional passion arising from an adequate cause, but rather a mental disturbance. You will see from your casebook reading that California recognized this aspect of diminished capacity at one time, but it no longer does. The MPC recognizes this form of diminished capacity for manslaughter in criminal homicide cases when it uses the words "extreme mental ...disturbance" (EMD) in Section 210.3 (1) (b) MPC.

Note: With regard to sudden passion or extreme emotional disturbance (EED), it is only in the case of killings that we reduce or mitigate the killer's responsibility. If A, adequately provoked by B, breaks B's arm, provocation or EED is legally irrelevant in charging A with assault.

Hint: Provocation or EED as mitigating factors are often seen in real life cases as fall-back or backup positions from a claim of self-defense.

Involuntary Manslaughter Defined

At common law, involuntary and voluntary manslaughter were punished the same. But, today all states that have voluntary and involuntary manslaughter punish involuntary manslaughter with a lesser punishment range than voluntary manslaughter. There are two kinds of involuntary manslaughter at common law, namely: (1) Killings that occur as a result of gross criminal  negligence, and (2) Misdemeanor - Manslaughter killings which occur when an unintended homicide takes place during an unlawful act not amounting to a felony.[Note that the TPC and MPC do not recognize the misdemeanor-manslaughter rule.]

Note: The MPC , Section 210.3  and TPC, Section 19.04  have a single crime known as manslaughter. Under either statute, a reckless culpable mental state suffices for manslaughter. For recklessness, one needs to have a subjective perception and a consequent disregard of a known substantial and unjustifiable risk. Under the MPC, remember that when the subjective disregard of the substantial risk reflects extreme indifference to the value of human life, (what you might think of as a sort of MPC version of c/l "depraved heart") you will be dealing with murder not reckless manslaughter.

Criminally Negligent Homicide Defined

Concerning negligence, both the MPC, Section 210.4, and the TPC, Section 19.05 , have an additional homicide crime known respectively as "negligent homicide" (MPC) and "criminally negligent homicide" (TPC) in which the culpable mental state is gross (as opposed to "ordinary civil tort negligence") negligence.

In cases where there is a failure to perceive the risk, you will be looking for gross negligence in the sense of a gross deviation from the standard of care that an ordinary person would exercise. Texas also has a strict liability crime known as intoxication manslaughter in Section 49.08 TPC for drunk drivers who by reason of their intoxication kill another person. [Note: Unlike a state such as WA. that utilizes ordinary tort negligence as the operative culpable mental state for it's involuntary manslaughter law (Remember the Williams case of the young Indian boy who did of the gangrenous mouth infection and whose father was convicted of manslaughter for ordinary, as opposed to gross, negligence), the TPC and MPC both require a showing of gross negligence for negligent homicide; in fact, neither recognizes ordinary negligence in the short list of culpable mental states.]

Note: If you are a 1L (first year law student), you are probably getting used to the idea that many areas of law, in addition to  the law of crimes and defenses,  are governed by codes. As a lawyer, you will spend a lot of time in the next 40 years with your nose in a code of one sort or another. Since you are required in this course to spend considerable time in the Texas Penal Code (TPC), it may of some solace to know that a study of  the penal codes of every state in the union to determine the "five best" and "five worst" found that (drum roll) the Texas Penal Code was the best in the nation. Skim this excellent article by Professor Paul Robinson, one of the top criminal law professors in the world, if you have time. It explains the purpose and function of a penal code, and it will provide you with greater appreciation of our TPC, notwithstanding the amendment savaging it typically takes when the Texas legislature is in session. .

DEFINING "DEATH OF A HUMAN BEING" - A REQUIRED RESULT IN CRIMINAL HOMICIDE CASES & A POLICY QUESTION

When does life begin and end? When does a human being first become a person subject to being killed, and when does a human being cease being a person for purposes of the homicide statutes? One can see that the legal description of terms like "human being" or "individual" within the law of crimes is more than a simple Webster's definition. In many instances, the legal definition of a term is a reflection of core policy that has significant social implications and consequences.

The issue of