Criminal Law Class Notes
We
probably won’t finish our second case today.
We’ll try to at least start it.
If need be, we’ll finish the case on Friday.
Excuse
Since
we’re going to do excuses, we want to start at the beginning and figure out
just why we have excuses. How does
Jeremy Bentham explain excuses?
Bentham
says that an excuse is a defense when their conduct was nondeterrable. The only use for punishment, in a utilitarian
view, is deterrence. Therefore, if there
is no value to punishment and only a net social cost, we shouldn’t punish.
Kadish
says this is weak. What’s wrong with
Bentham’s argument? Say, for the sake of
argument, there are some people who are genuinely undeterrable. Why might there still be some utilitarian
value in punishing an undeterrable person?
There could be a specific deterrence or incapacitation justification. If someone is undeterrable, they may be said
to be dangerous, and thus it’s of value to keep them off the street.
What
about the general deterrence value in punishing an undeterrable person? If we excuse an undeterrable person, someone
else might get the wrong message.
Someone else might believe that they can convince a jury that they
are undeterrable. Generally speaking,
they may be less likely to obey the law because they will perceive it as full
of holes.
So
there are utilitarian reasons not to recognize excuses. Utilitarians have tried to come up with
better arguments than Bentham’s argument for why we should have excuses. Professor Hart argues that excuses confine liability
to cases where conduct was freely chosen, and therefore people will be happier overall
because they can avoid punishment by obeying the law. Huh?
Thus
excuses have something to do with free choice, even under this utilitarian
theory.
Kadish
says that Hart misses the point. Kadish
says that we have excuses because we don’t want to blame those who were
not responsible for their actions.
This is a fundamental point to a retributivist: when we punish people,
we’re blaming them. The essence of
criminal law in this country and what makes it different from civil law is the
blame and condemnation of the community resulting from a criminal conviction. To blame someone who is not responsible for
his actions is a falsehood. It is
a matter of justice, Kadish says, to excuse certain people even though they
have caused some social harm.
Excuse
law is now explained almost exclusively by some sort of retributive theory
rather than utilitarian theory. Even the
utilitarian argument has a retributivist aspect to it.
Our
theories of excuse are:
1. Utilitarian
theories
2. Causation
3. Character
4. Choice
(Personhood)
These
theories are often used by the courts to justify why they will or will not
accept a certain excuse. These are very
different theories: some are much broader and will excuse far more offenders
than others.
United States v. Contento-Pachon
The
defendant was a taxi driver in
The
defendant raises two defenses: the defense of duress and the defense of
necessity. Both defenses were excluded
at trial.
There
are three elements of the duress defense, according to the court: (1) immediacy
of the threat, (2) well-grounded fear of the threat, and (3) lack of
escapability from the threat.
The
appellate court says that the trial court got it wrong because the threat
really was immediate due to supposed constant surveillance of the people
threatened.
Another
way of describing duress as an excuse is that a person will be acquitted of any
crime other than murder if: (1) the coercer issues an unlawful threat to
imminently kill or grievously injure the defendant or another person, and (2)
the defendant was not at fault in exposing himself to the threat.
The
defendant also brings up a necessity defense.
The court says that necessity must be based on natural threats and not
personal threats, like duress. Cf. Dudley and Stephens, who were not
coerced by a person but rather by their physical circumstances. Dressler says this is a totally arbitrary
distinction. Under the Model Penal Code,
the justification of necessity is not limited to physical threats.
The
court also says that a necessity defense suggests that there was no social harm
on balance. On the other hand, the court
says that duress suggests there was no culpability. The court therefore implies that necessity is
a justification rather than an excuse.
The
Model Penal Code definition of duress is revolutionary compared to the common
law. It’s different from the common law definition
in many different ways. Is there a limit
under Model Penal Code § 3.02 to duress?
Yes, the threat listed is “unlawful force”. Only humans can do unlawful things. The Model Penal Code is like the common law
in the fact that it limits the defense of duress to human threats. However, under the category of necessity, the
Model Penal Code would allow either natural or human threats. The Model Penal Code is well aware of
this. It says that even if § 3.02
applies, § 2.09 may still apply if you’re dealing with a human threat.
Why
would the Model Penal Code limit duress to cases of unlawful threat? Why can’t duress encompass natural threats?
In a
previous edition of LaFave and Scott’s treatise, they said that duress was a justification
rather than an excuse.[1] They based this on the “choice of two evils”
model.
Dressler
doesn’t think duress is a justification.
LaFave
and Scott might have argued that duress requires a threat of death and
it can’t be used as a defense to murder.
Therefore, they would argue, that death is worse than any conduct that
would be coerced and subsequently defensible.
What
about the case of being coerced into causing equal harm to the harm that is
threatened? In that case, you don’t get
to claim necessity. However, you would
have duress available if it is a justification.
So
Dressler says that duress is an excuse and not a justification. He says that most jurisdictions treat duress
as an excuse rather than a justification.
Note
that Article 3 of the Model Penal Code is labeled as “General Principles of Justification”,
whereas Article 2 is labeled as “General Principles of Liability”. This suggests that anything in Article 2 is
not considered a justification, because if it was it would be in Article 3.
Does
a person who claims duress, in effect, not have the mens rea necessary for a
crime? Dressler says, if anything,
duress explains your mens rea.
Also, duress does not negate the voluntary act requirement. You definitely will your muscles to do what
you’ve been coerced into doing.
There
are some times when duress can negate the mens rea of the crime under
limited circumstances. For example, if
you are coerced into taking property, you might lack the intent to permanently
deprive someone of property. After you’re
no longer under the threat, you might go straight to the police and tell them
what you’ve done.
What’s
the difference? If you can argue duress
as a lack of mens rea, you shift the burden of proof to the prosecution. Sometimes duress is not just an excuse and
sometimes necessity isn’t just a justification: in some cases, you may have a
mens rea claim.
What’s
different about the Model Penal Code provision on duress than the common law? In the Model Penal Code, there need not be an
imminent threat. Also, under the Model
Penal Code, a “kill or be killed” threat could work as an excuse: there is no
murder exclusion. Finally, it is a “person
of reasonable firmness” standard. It’s
an objective rather than a subjective standard.
What’s
the duress claim? The victim was
suspecting of molesting two girls. The
father of one of the girls says he’ll beat up the defendant unless he kills the
victim. The obvious problem in the case
is that common law doesn’t allow duress to be used in a murder case.
Why
does the court conclude that duress shouldn’t be a defense in a murder
case? The court argues that it’s better
to die than to kill. The court talks
about gang violence.
What’s
wrong with this court’s analysis? The court
keeps talking about duress as a justification.
“Choice of evils” is necessity, which is justification, not an excuse.
Be very sensitive to the
difference between excuse and justification.
Because
the court gets confused, they raise arguments that aren’t on point. If duress is an excuse, none of the court’s
policy arguments are relevant. We could
develop arguments for why someone who might not be justified might still be
excused.
This
court is sort of deciding Dudley and Stephens all over again.
The
more direct question is the Penal Code statute.
The defense argues that the statute modifies the common law and makes
the duress defense available for all offenses except those punishable by
death. The defendant argues that since
first-degree murder per se is no longer punishable by death, he should be
allowed to use the duress defense.
How
does the California Supreme Court get around that statute? They interpret the legislature’s intent and
say that they must not have intended that the applicability of the defense to
shift over time. Dressler suggests that
this is a clear case of judicial activism.
It is also a violation of the rule of lenity, or the rule of strict
construction. In a tiebreaker situation,
the defendant is supposed to win.
For
Friday, we’ll talk about why the defendant was convicted of first-degree murder
instead of second-degree murder. Look at
the
Why
did the court reject duress as a partial defense brining the defendant
down to manslaughter?
What
would be the outcome if the jury had concluded that the defendant was not
guilty of kidnapping, given that he was convicted of felony murder?
Also,
look at the hypo in the dissenting opinion and the majority’s answer. Be prepared to talk about them.
Then
our special guest will be Ted Bundy!