Powered by TypePad

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)

October 28, 2013

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.

October 28, 2013 in Course materials and schedule, Recommended scholarship | Permalink | Comments (9) | TrackBack

September 09, 2013

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.

September 9, 2013 in Recommended scholarship, Reflections on class readings | Permalink | Comments (8) | TrackBack

July 12, 2012

"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.

July 12, 2012 in Crime data, Current Affairs, Recommended scholarship | Permalink | Comments (0) | TrackBack

September 03, 2010

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.

September 3, 2010 in Class reflections, Recommended scholarship, Reflections on class readings | Permalink | Comments (6) | TrackBack

October 15, 2008

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.

October 15, 2008 in Recommended scholarship | Permalink | Comments (2) | TrackBack