Criminal Law @ Moritz College of Law

Professor Paul Butler's forceful arguments for race-based jury nullification (nearly 30 years ago)

I mentioned in Monday's class Professor Paul Butler's provocative arguments for race-based jury nullification, which first appeared in a law review article published as Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995).  The full argument is available at this link, and here is a snippet from the piece's introduction:

My thesis is that, for pragmatic and political reasons, the black community is better off when some nonviolent lawbreakers remain in the community rather than go to prison.  The decision as to what kind of conduct by African-Americans ought to be punished is better made by African-Americans themselves, based on the costs and benefits to their community, than by the traditional criminal justice process, which is controlled by white lawmakers and white law enforcers.  Legally, the doctrine of jury nullification gives the power to make this decision to African-American jurors who sit in judgment of African-American defendants.  Considering the costs of law enforcement to the black community and the failure of white lawmakers to devise significant nonincarcerative responses to black antisocial conduct, it is the moral responsibility of black jurors to emancipate some guilty black outlaws....

My goal is the subversion of American criminal justice, at least as it now exists.  Through jury nullification, I want to dismantle the master's house with the master's tools.  My intent, however, is not purely destructive; this project is also constructive, because I hope that the destruction of the status quo will not lead to anarchy, but rather to the implementation of certain noncriminal ways of addressing antisocial conduct.  Criminal conduct among African-Americans is often a predictable reaction to oppression.  Sometimes black crime is a symptom of internalized white supremacy; other times it is a reasonable response to the racial and economic subordination every African-American faces every day.  Punishing black people for the fruits of racism is wrong if that punishment is premised on the idea that it is the black criminal's "just deserts."  Hence, the new paradigm of justice that I suggest in Part III rejects punishment for the sake of retribution and endorses it, with qualifications, for the ends of deterrence and incapacitation.

In a sense, this Essay simply may argue for the return of rehabilitation as the purpose of American criminal justice, but a rehabilitation that begins with the white-supremacist beliefs that poison the minds of us all — you, me, and the black criminal.  I wish that black people had the power to end racial oppression right now.  African-Americans can prevent the application of one particularly destructive instrument of white supremacy — American criminal justice — to some African-American people, and this they can do immediately.  I hope that this Essay makes the case for why and how they should.

For those who (understandably) do not have enough time to read Professor Butler's remarkable Essay, here is an effective (though dated, and yet also still timely) 60 Minutes video (under 10 minutes) discussing Professor Butler's ideas.  The discussion usefully touches on some of the broader issues that jury nullification always raises.

 

Anyone who is eager for even more video on this issue can also see a series of 1995 segments on The Phil Donahue show (part 1 here, part 2 here, part 3 here...) with Professor Butler and other guests.

A "missing mental state"?

As we start digging deeply into a variety of mens rea topics, I may sometimes use this space to highlight some materials that engage broader debates over these topics. Critically, you should feel no obligation to read more than these posts, which are just intended to give you a feel for the debates.

So, I mentioned in class the work of OSU Law's Alan Michaels on mental states titled "Acceptance: The Missing Mental State."  You can download the full 105-page(!) manuscript at this link, though I would recommend being content with this summary from the paper's 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 willful 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 willful 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.

How a variation of Dudley & Stephens might be resolved in Ohio under common law necessity doctrines

I hope everyone enjoyed Monday's role play, and kudos to the lawyers who did a great job under challenging circumstances. If folks remain engaged by the legal and/or philosophical issues raised by the Dudley & Stephens case, a "classic" law professor account of the issues raised in Dudley & Stephens appeared in a Harvard Law Review article published 65 years ago.  The Case of the Speluncean Explorers by Lon Fuller is one of the most famous law review articles ever written, and the start of the Wikipedia entry highlights why it is so engaging:

It largely takes the form of five separate judicial opinions attributed to judges sitting on the fictitious Supreme Court of Newgarth in the year 4300.  The hypothetical involves five cave explorers who are caved in following a landslide.  They learn via intermittent radio contact that they are likely to starve to death by the time they can be rescued.  The cavers subsequently decide to kill and eat one of their number in order to survive.  After the four survivors are rescued, they are indicted for the murder of the fifth member.  The prescribed penalty is capital punishment.  Fuller's article proceeds to examine the case from the perspectives of five different legal principles, with widely varying conclusions as to whether or not the spelunkers should be found guilty and thereby face the death penalty under the law of Newgarth.

For a wonderful, much shorter and more recent consideration of these issues, one member of my criminal law class nine years ago had the great initiative to imagine how a modern-day case of this nature might get resolved in Ohio under its common-law defenses scheme.  That student allowed me to post her analysis, and here is how she sets up the factual context:

Let's imagine a scenario in which four avid hikers, all associated with Ohio’s State Parks, decide to go for a winter hike at Serpent Mound, located in idyllic Adams County, Ohio. The group consists of Hatlen Books, a veteran tour guide, Dursley Dudley and Richard Stephens, members of the Ohio State Parks administration, and Peter Parker, a trainee guide, though noted as a talented climber.  The hike was predicted to be an easy one and take no more than a few hours to complete; it was more-so an excursion to view the aforementioned idyllic landscape.  The hikers deviated from the path because of an intense and unpredicted snowstorm that caught the band off-guard and limited their ability to navigate.  The band happened upon a previously unknown sinkhole that had formed sometime after the last ranger appraisal of the land (which has been some-time ago with state budget cuts).  The group was stranded on a rocky, but stable, covered corner of the hole with only snow for hydration and a 2lb bag of vegan trail mix Stephens brought on the trip.  Despite the group’s reluctance to eat vegan, they subsisted off the mix and an unlucky rabbit for 18 days.

Download Prosecuting Dudley & Stevens in Ohio

Notable efforts to preclude LGBTQ+ "panic" as adequate provocation to mitigate an killing

I briefly mentioned as we started discussing the historic common-law doctrine of provocation that one modern development concerns legislative efforts to categorically preclude "panic" about gender and sexual orientation from being deemed legally adequate provocation.  The American Bar Association played a leading role here when in 2013 it unanimously approved this resolution:

RESOLVED, That the American Bar Association urges federal, tribal, state, local and territorial governments to take legislative action to curtail the availability and effectiveness of the “gay panic” and “trans panic” defenses, which seek to partially or completely excuse crimes such as murder and assault on the grounds that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction. Such legislative action should include:

(a) Requiring courts in any criminal trial or proceeding, upon the request of a party, to instruct the jury not to let bias, sympathy, prejudice, or public opinion influence its decision about the victims, witnesses, or defendants based upon sexual orientation or gender identity; and

(b) Specifying that neither a non-violent sexual advance, nor the discovery of a person’s sex or gender identity, constitutes legally adequate provocation to mitigate the crime of murder to manslaughter, or to mitigate the severity of any non-capital crime.

This LGBTQ+ Bar webpage notes that, since the ABA's resolution, "the District of Columbia and the states of California, Illinois, Rhode Island, Nevada, Connecticut, Maine, Hawaii, New York, New Jersey, Washington, Colorado, Virginia, Vermont, Oregon, Maryland, and New Mexico have banned such defenses. Legislation is pending federally as well as in multiple states."

Professor Cynthia Lee is one of the nation's leading scholars concerning provocation issues. She recently authored this notable (and lengthy) article titled "The Trans Panic Defense Revisited."  Among other virtues, this article provides a example of how an academic's views on important issues can evolve. Here is part of the article's abstract:

When a man is charged with murdering a transgender woman, a common defense strategy is to assert what is called the trans panic defense. The trans panic defense is not a traditional criminal law defense. Nor, despite its name, is it recognized as a stand- alone defense. Rather, trans panic is a defense strategy associated with the provocation or heat of passion defense....

This Article offers several reasons why the trans panic defense strategy is deeply problematic.  First, the trans panic defense appeals to negative stereotypes about transgender individuals.  Second, it legitimizes the enforcement of norms of masculinity and heterosexuality through violence.  Third, it inappropriately validates bias against transgender individuals when we live in a pluralistic society that should be tolerant and accepting of all individuals.

The Article then addresses the normative question of what should be done to rectify the harms rendered when a defendant charged with murder asserts a trans panic defense.  In the past, the Author was reluctant to support proposals to legislatively ban the trans panic defense.  She felt that the best way to defeat the trans panic defense was not to ban it, but to allow it to be aired and then have a strong prosecutor explain to the jury why it should be rejected.  She also argued that it was critically important to eradicate the underlying structures of masculinity that encourage violence against transgender women to reduce the risk of such violence taking place and to undermine the effectiveness of the trans panic defense.  She opined that the best way to achieve these goals was to educate both the public and the jury about the difficulties transgender individuals face just trying to exist in society and make the existence of bias against transgender individuals salient to the jury.

While the Author still believes in the importance of education, she now feels education alone is insufficient to ensure that juries reject the trans panic defense.  The Article explains the Author’s shift in position and concludes by examining recently enacted legislative bans on the trans panic defense and offering concrete suggestions on how legislative reform in this arena could be strengthened.

How a variation of Dudley & Stephens might be resolved in Ohio under common law necessity

If anyone remains engaged by the legal and/or philosophical issues raised by the Dudley & Stephens case, there are lots of wonderful additional readings I can recommend.  A "classic" law professor engagement with the issues raised in Dudley & Stephens appeared in a Harvard Law Review article published 65 years ago.  The Case of the Speluncean Explorers by Lon Fuller is one of the most famous law review articles ever written, and the start of the Wikipedia entry highlights why it is so engaging:

It largely takes the form of five separate judicial opinions attributed to judges sitting on the fictitious Supreme Court of Newgarth in the year 4300.  The hypothetical involves five cave explorers who are caved in following a landslide.  They learn via intermittent radio contact that they are likely to starve to death by the time they can be rescued.  The cavers subsequently decide to kill and eat one of their number in order to survive.  After the four survivors are rescued, they are indicted for the murder of the fifth member. The prescribed penalty is capital punishment.  Fuller's article proceeds to examine the case from the perspectives of five different legal principles, with widely varying conclusions as to whether or not the spelunkers should be found guilty and thereby face the death penalty under the law of Newgarth.

For a wonderful, shorter and more recent consideration of these issues, one member of my criminal law class eight years ago had the great initiative to imagine how a modern-day case of this nature might get resolved in Ohio under its common-law defenses scheme.  That student allowed me to post her analysis, and here is how she sets up the factual context:

Let's imagine a scenario in which four avid hikers, all associated with Ohio’s State Parks, decide to go for a winter hike at Serpent Mound, located in idyllic Adams County, Ohio. The group consists of Hatlen Books, a veteran tour guide, Dursley Dudley and Richard Stephens, members of the Ohio State Parks administration, and Peter Parker, a trainee guide, though noted as a talented climber.  The hike was predicted to be an easy one and take no more than a few hours to complete; it was more-so an excursion to view the aforementioned idyllic landscape.  The hikers deviated from the path because of an intense and unpredicted snowstorm that caught the band off-guard and limited their ability to navigate.  The band happened upon a previously unknown sinkhole that had formed sometime after the last ranger appraisal of the land (which has been some-time ago with state budget cuts).  The group was stranded on a rocky, but stable, covered corner of the hole with only snow for hydration and a 2lb bag of vegan trail mix Stephens brought on the trip.  Despite the group’s reluctance to eat vegan, they subsisted off the mix and an unlucky rabbit for 18 days.

Download Prosecuting Dudley & Stevens in Ohio

"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.

Rape role-play plans (and a link to an extra reading about the MPC need for reform)

I am very pleased to see and report that we already have two legislative sub-committees formed to start working on needed revisions to Oliwood rape law.  I have given silly names/labels to the groups for ease of reference:

Mid-Back Oliwood Rape Reform Drafting Subcommittee (MORR) is comprised of Katherine U., Alia S., Kristen M. and Elizabeth Y.

Front-Side Oliwood Rape Reform Drafting Subcommittee (FORR) is comprised of Kristin V., Melanie L., Kayla E. and Tresha P. (and now also Alaina P.)

Though not essential, it would be valuable to have at least one more group working on draft legislation along with the MORR and FORR Subcommittees. That way there can be three (distinct?) proposed new rape statutes for the full Oliwood Criminal Justice Reform Committee (which is our class) to consider and vote on for moving forward with further review and revision in the process of bringing a working reform bill to the floor of the full Oliwood legislature.

On Friday, each subcommittee will have about 10 minutes to present their proposed reformed rape statute (and, ideally, these proposed statutes can be sent my way for posting at least a few hours before our Friday class session).

In the meantime, every member of the Oliwood legislature can and should benefit from reviewing this short (and very informative) 2003 article published in the Ohio State Journal of Criminal Law authored by Professor Deborah W. Denno titled "Why the Model Penal Code’s Sexual Offense Provisions Should Be Pulled and Replaced."

UPDATE:  The comments to this post reveal the emergence of two more legislative sub-committees,  which I have given a few more silly names/labels ease of reference:

Boy-Based Oliwood Rape Reform Drafting Subcommittee (BORR) is comprised of Chris S., T. Elliot G. and Matt R.

Co-ed Oliwood Rape Reform Drafting Subcommittee (CORR) is comprised of Ben W., Kelly F. and Morgan C.

Because I think that having more than four drafts could get unwieldy, I hope that anyone else eager to be involved in the drafting experience join one of the existing subcommittee.  And, absent any special requests by any subcommittee, I will plan to have the subcommittees present their proposals in alphabetical order.

Effective discussion of strict liability issue in play in Shelton v. Sec’y, Dep’t of Corrections

We will wrap up our focused discussion of strict criminal liability issues on Wednesday, and the (still on-going) litigation over Florida's drug possession laws at issue in Shelton v. Sec’y, Dep’t of Corrections will provide a good setting for developing a few final thoughts on this front.  Fortunately, though the textbook provides an already dated (and somewhat confusing) account of the Shelton case, there is a terrific (and brief) primer on the case available at this link from The Heritage Foundation.

I highly recommend that everyone at all interested by these debates read this discussion of the Shelton case and its importance.  To whet your appetite, here is how document linked above is titled and its abstract:

Guilty Until Proven Innocent: Undermining the Criminal Intent Requirement

Abstract: Developed over the course of hundreds of years, the Anglo–American legal system contains several key provisions that, when used properly, guard against wrongful criminal convictions.  These provisions, however, are under attack by America’s legislators and their desire to eliminate mens rea (“guilty mind”) requirements from U.S. criminal law.  The loss of this guilty mind requirement would destroy Americans’ primary defense against false accusations and Kafka-esque legal proceedings.  How the Supreme Court of the United States rules (if the Court does choose to rule) on Shelton v. Sec’y, Dep’t of Corrections will have a tremendous impact on one of America’s primary core liberties.

"Global Efforts Not Up to Combating Criminals"

The title of this post is the main entry of this notable new website/resource created by the International Institutions and Global Governance Program of the Council of Foreign Relations.  Here is more of the stated concern:

With transnational crime proliferating at unprecedented levels and costing by some estimates over $2 trillion annually, IIGG's new Global Governance Monitor: Transnational Crime reveals gaps in the international anticrime system.

Does (or should) Ohio have a "duty to aid" statute like Wisconsin?

Here is a research (or advocacy) assignment/question for the long weekend:

Does (or should) Ohio have a "duty to aid" statute like Wisconsin?

Here is a related question to consider: If you were to be tasked with drafting such a statute for a state's legislature to consider, what provisions of the Wisconsin approach would you preserve and what provisions might you want to tweak?

For anyone eager to do some more (totally optional) reading on this interesting topic, consider checking out an article in the Spring 2010 issue of the Georgia Law Review by Ken Levy, which is titled "Killing, Letting Die, and the Case for Mildly Punishing Bad Samaritanism."

UPDATE:  Here is a sad story via CNN about what sounds like a case like a New York version of the Jones case in 2010.  The piece is headlined "Girl, 4, weighed 15 pounds at death," and starts this way:

The mother of a 4-year-old girl found dead in her Brooklyn home Thursday morning was charged Friday with second-degree assault, reckless endangerment and endangering the welfare of a child, according to police.

Marchella Pierce weighed just 15 pounds and had marks on her hands and ankles when police found her unconscious in her family's apartment, according to CNN affiliate WABC-TV.

The offense grading problem in another setting

In light of our discussion of different grades of homicide (and in the wake of our Joe Wolvie hypo from a few weeks ago), folks might be interested in this new article by a colleague from the journal Criminal Law and Philosophy entitled "Grading Arson."  Here is the abstract of the article:

Criminalizing arson is both easy and hard.  On the substantive merits, the conduct of damaging property by fire uncontroversially warrants criminal sanction. Indeed, punishment for such conduct is overdetermined, as the conduct threatens multiple harms of concern to the criminal law: both damage to property and injury to people.  Yet the same multiplicity of harms or threats that makes it easy to criminalize "arson" (in the sense of deciding to proscribe the underlying behavior) also makes it hard to criminalize "arson" (in the sense of formulating the offense(s) that will address that behavior).

This article asks whether adopting one or more arson offenses is the best way for criminal law to address the conduct in question, or whether that conduct is more properly conceptualized, criminalized, and punished as multiple distinct offenses.

The article is pretty dense reading, and perhaps it is not a good use of a scarce time to read the article in full.  But this concluding sentence from the article has a message very pertinent to our homicide discussions: "Categories or formulations inherited from prior generations may even cause more harm than good if they become reified to the extent that our conceptualizations of crime become inseparable from the vernacular description or particular conduct the existing categories happen to describe, obscuring the ability to recognize each category's underlying purpose and function." 

If you can understand this final sentence from the article, you are already ahead of the game as we head into a review of the history and modern doctrines of grading homicide.