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September 28, 2016

Another real-world follow-up to prior punishment theory discussions and preview of coming homicide discussions thanks to H.R.6158, the HELP Act

I really enjoyed our prior on-line discussions here concerning whether and why drug dealers ought to be criminally responsible for causing overdose deaths.  And, if you are working on the next extra credit assignment focused on the Burrage Supreme Court case, you know how causation doctrines can intersection with these matters.

But, thanks to a few member of Congress, a new bill in Congress also makes this issue on that is worth discussing as we wind down our basic mens rea conversations and start to gear up for talking about homicide crimes and punishments.  I discuss this new bill (which I have not yet seen in full), in a new post over at my sentencing blog: NY member of Congress puts forward federal bill with "Death Penalty Proposal for Heroin Dealers".


UPDATE:  This Columbus Dispatch headline/story awaited me in my e-mail in-box after I returned from our class: "Columbus hit by 27 heroin overdoses in 24-hour span"

September 28, 2016 in Course materials and schedule, Current Affairs | Permalink | Comments (1)

September 21, 2016

"Acceptance: The Missing Mental State"

The title of this post is the title of now-Dean (then-Prof) Alan Michaels' very first major law review article.  You can download the full 105-page(!) manuscript at this link, where you will also find this abstract:

This article identifies a serious shortcoming in the traditional criminal law mental state hierarchy and proposes a new mental state-- called acceptance -- as a solution. Acceptance exists where the actor acts recklessly and, in addition, would have acted even "had he known" that his conduct would "cause the harm."  The article establishes, through close analysis of the wilful blindness and depraved-heart murder doctrines, that use of the mental state of acceptance is both practicable and necessary.

When liability lines are drawn at the level of knowledge, the criminal law has rarely been satisfied to restrict liability to actual knowledge, but instead has relied on ambiguously defined crimes (such as depraved-heart murder) or has stretched the definition of knowledge (for example, through the wilful blindness doctrine) to push reckless conduct across the liability line to the knowledge side. These "solutions" have failed.  When contemporary criminal law draws a significant liability line between knowledge and recklessness, doctrine governing cases near the margin is both particularly vague and distinctly lacking in consensus in comparison to most areas of the criminal law.

The article proposes that where the law requires knowledge, acceptance should be allowed to suffice. After justifying such an approach from both retributive and utilitarian perspectives, the article establishes, by examining the willful blindness and depraved-heart murder doctrines, that using acceptance would yield a better fit between criminal law and culpability concepts and would substantially diminish vagueness problems.  The need for acceptance is also demonstrated in briefer examinations of three other criminal law areas: "knowledge of the law," attempt and battery.  In support of the practicability of acceptance as a measure of culpability, the article also surveys the criminal law's use of hypothetical questions to determine culpability in several other areas.  These include the doctrines of recklessness, entrapment, and the German concept of bedingter vorsatz.

September 21, 2016 in Recommended scholarship | Permalink | Comments (1)

September 18, 2016

Making sure you fully understand what the US Constitution, the MPC and the ORC have to say about "strict criminal liability"

As I mentioned in class on Friday, your understanding of lots of future discussions over all sorts of mens rea issues the rest of the semester will be greatly enhanced if you appreciate all the theoretical and practical nuances of the the debate we had over my idea of using strict criminal liability to deal with the serious harms of car accidents on wet roads.  I will review those nuances briefly on Monday, and you should already have a feel for how these nuances found expression in the Dillard case and how they inform the classic old case of Faulkner.  

Of greatest importance as we move this week from Berman hypotheticals to real laws, you should appreciate that our debate over my "crashing in the rain" proposal was fundamentally a debate about why, when, whether and how a legislature might be eager to impose "strict criminal liability" -- that is, why and when lawmakers might what to subject some persons to criminal liability for certain risky conduct or harmful results regardless of whether they meant to (or knew or even could reasonably foresee) that they were involved in risky conduct or might cause harmful results.  But as Dillard highlighted, the issues of strict criminal liability arise in court only after a legislature has passed a statute and then a case arises in which the facts make it important to figure out if and how a legislature actually intended to write a statute that does in fact impose "strict criminal liability."

As the title of this post indicates, the Supreme Court cases mentioned in the text, as well as key provisions of the Model Penal Code and the Ohio Revised Code, provided some critical "rules of interpretation" for helping to resolve if/when a statute should be understood to impose "strict criminal liability."  I hope you have already figured this out, and this is what I will try to make sure everyone understands before we get into Faulkner and Handout #2 (which we will certainly get to no later than Wednesday).

September 18, 2016 in Advice, Class reflections, Course materials and schedule | Permalink | Comments (0)

September 14, 2016

Working draft of bill for new ORC provision to criminalize "Crashing while driving in rain"

In order to facilitate further discussion by students/legislators concerning the bill I have proposed in the hope of reducing the harms that too often result from driving in the rain or on wet roads, I have now formally drafted/revised this bill language:

PROPOSED ORC Section 2999.99: Criminal Damaging While Driving in the Rain or on Obviously Wet Neighborhood and Express Roads
(A) No person shall cause any physical harm to any other person or to the property of another person while driving in the rain or while the road are obviously wet.
(B) Whoever violates this section is guilty of criminal damaging while DROWNER, a misdemeanor of the second degree.  If a violation harms property valued in excess of $5000, this offense is a misdemeanor of the first degree.  If a violation harms a person or property valued in excess of $50,000, this offense is a felony of the third degree.  If a violation causes serious harm to multiple persons or the death of any person, this offense is a felony of the second degree.

For further support for this proposal, consider these excerpts from a Science Daily publication from 2008 headlined "Bad Weather: Bad Drivers":

Researchers and statisticians found that 24% of all crashes occur during adverse weather conditions, including ice, snow, and rain.  The research showed that most drivers do not account for adverse conditions created by rainy weather.  They suggest slowing down and increasing the distance between traveling cars as a way to decrease the number of accidents in bad weather.

Each year, nearly 7,400 people are killed and over 670,000 are injured in crashes.  But not all wrecks are because of driver error.....  Rainy weather can wreak havoc on highways.  When a big storm rolls in, drivers tend to either slow down too much or not enough.  Drivers need to be wary of driving in any change in the weather.  A new study by transportation engineers reveals that nearly one-quarter of all crashes occur in bad weather conditions.  Most happen on wet pavement....

Unlike snow and ice covered roads that scare drivers into staying home or driving more carefully.  Many drivers don't consider rain as 'bad' weather, so more cars end up on wet roads, and drivers don't slow down enough to avoid serious accidents.

For more research on this front (which further supports the need to do whatever is necessary to try to make our roads safer during inclement whether in order to save more innocent lives), check out this related story headlined "Rain Is More Lethal For Drivers After A Long Dry Spell."  Here is its key fact based on a review of many years of roadway accident data:  "For any given day in the state, on average, each centimeter of precipitation increases the risk of fatal crashes by about 1 percent, [and] for nonfatal crashes, the increased risk is 11 percent."

September 14, 2016 in Class reflections | Permalink | Comments (9)

September 9, 2016

Gearing up for classes the week of Sept 12 (and thereafter)

I am writing this post on a plane over the Atlantic, and I am already getting excited about getting back to our conversations about the basics of substantive criminal law.  (For the record, Scotland was an amazing experience AND among the souvenirs I am bringing home is a kilt.  If asked by enough students in the comments, I will wear it to class one day.)

I expect that our first class back together, on Monday Sept 12, will have us wrapping up criminal law's so-called "act requirement" (i.e., actus reus), giving particular attention to the Martin and Grant cases.  I look forward to asking you all a bunch of really hard questions about what purpose the "voluntariness" component of the act requirement serves.

We will thereafter start a multi-week discussion of criminal law's so-called "mental state requirement" (i.e., mens rea or culpability), and will begin exploring whether we really have to always require, and/or really should always require, a defendant to have a "bad mental state" before subjecting him to criminal responsibility.  And discussion of that issue starts with my all-time-favorite class hypothetical (which I call the "driving in the rain" hypo).  For those eager to get a running start on thinking about this hypo, you can (but need not feel any obligation to) check out these posts from prior years' classes:

September 9, 2016 in Course materials and schedule | Permalink | Comments (5)

September 7, 2016

Another interesting real (local) case to consider in light of punishment theories

Even while on the road I have followed and been impressed by recent discussions regarding the AP article about charging drug dealers with homicide for overdose deaths.  And, based on this reporting of a notable sentencing outcome emerging this week from a court just down the road from Moritz, I wonder if folks might refect on what punishment theories were in play.  Here are lengthy excerpts from the story, which is headlined "Driver gets 13 years in prison for 2014 crash that killed two Downtown":

Terrance Trent wept and whimpered, clutching a tissue to his face in a Franklin County courtroom, as he listened to anguished statements about what was lost when his reckless driving caused a crash that killed two pedestrians at a Downtown intersection.

He continued weeping during the Tuesday hearing as he told the families of the dead that he was "so sorry" about what happened to Stephanie Fibelkorn, 21, and Bill Lewis, 58. "I've tried to understand what you're going through, I really have," he said. Looking upward with his hands seemingly clenched in prayer, he wailed, "If I could die right now to bring them back, I'd gladly do it."

Common Pleas Judge David Young said he saw no genuine remorse from Trent, who was convicted last month of two counts of aggravated vehicular homicide for the deaths and two counts of vehicular assault for injuring two others in the crash on Dec. 12, 2014. Young imposed the maximum sentence of 13 years in prison — five years for each death and 18 months for each of the injured — and suspended Trent's driver's license for life.

Fibelkorn's father was thankful for the maximum sentence and unmoved by Trent's tears. "I was disheartened to see Mr. Trent crying today," Stephen Fibelkorn said after the hearing. "I find that he cries for himself and no one else. I don’t believe there’s been an ounce of remorse shown, other than for his own situation."

Trent, 63, was speeding west on East Broad Street in a pickup truck with a flat tire, running red lights and weaving through traffic, finally slamming the truck into a school bus at the busy intersection with High Street. The impact knocked the bus over the curb, killing the pedestrians and injuring the bus driver and the passenger in Trent's truck. Trent testified during his trial that the passenger, his girlfriend, was to blame because she was striking him with a full can of soda as he drove, causing him to go into "panic mode" and not realize what he was doing.

Lewis was the chief mobility engineer for the city of Columbus, working to keep streets safe for drivers and pedestrians. Stephanie Fibelkorn was an Ohio State University engineering student working as an intern in his office. She dreamed of one day working as a Disney "imagineer," designing attractions for the company's amusement parks. The two were walking to a morning meeting when they were struck. She died at the scene, and he died two weeks later at OhioHealth Grant Medical Center.

Fibelkorn's parents told the judge that they have sold their Downtown home to escape the continual reminders of the crash. Mr. Fibelkorn called himself "a broken man, unable to contain my emotions."...

Rhonda Lewis spoke about what the loss of her husband, a loving father, meant to her and their two children. She told the judge that Trent deserved a life sentence "for the destruction in our lives."

Defense attorney Steve Dehnart said his client has mental-health issues and that a maximum sentence "would achieve nothing but revenge."

Assistant Prosecutor Dan Cable told the judge that Trent's actions and lack of remorse cried out for the maximum. "Mr. Trent still does not get it," he said.

September 7, 2016 in Notable real cases | Permalink | Comments (13)