Kaplan, Weisberg & Binder

Criminal Law: Cases and Materials

2006 Cumulative Summer Update Supplement

for use with Fifth Edition (2004)
Chapter 1 – The Purposes and Limits of Punishment

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The most comprehensive assessment to date of the 1990’s crime decline has come
from Prof. Franklin Zimring, in his book The Great American Crime Decline.1 Zimring
notes that the period from 1991 to 2001 was remarkable for its length and
consistency—crime dropped each year for nine years in a row, in every region of the
country, and for every demographic group. In this decade, all seven major index offenses
(homicide, robbery, rape, aggravated assault, burglary, auto theft, and larceny) declined
significantly, with aggregate declines ranging from 23 percent to 44 percent. Less
serious offenses (i.e., drug and alcohol offenses, sexual misconduct, assault, weapons
charges) showed a smaller decline, though Zimring notes that the latter offenses are more
difficult to calculate since they are less likely to result in arrests.

Recent analyses like Levitt’s rely on highly sophisticated techniques of multiple

regression analysis to identify and test possible causal factors in the context of the widest
possible array of variables. Zimring is one of those criminologists who remain wary of
overconfidence in these techniques to capture all necessary factors, especially where the
results of the econometric analyses seem intuitively implausible or contradict other
evidence that is not fully measurable. Contrary to analysts who have purported to explain
major portions of the decline by various theories, Zimring argues that natural cyclical
forces could be responsible for about half of the decline and that because of the gradual
and continuous character of the crime rate change, it may be impossible to identify one
dominant cause.

Zimring undertakes a skeptical review of some of the major theories. For

example, he casts doubt on the power of increased incarceration rates to explain the drop,
by virtue of either their incapacitative or deterrent effects. He points out that
incarceration had begun increasing drastically throughout the 1970s and 1980s with no
apparent effect on crime rates, and that the largest increase in imprisonment happened
during the five years following 1986, a period of increasing crime. Further, he argues,
the principle of diminishing marginal returns (that if we put away the most dangerous
criminals first and gradually put away less dangerous ones, the number of remaining
offenders who have a high likelihood of repeat or multiple offenses would decline
rapidly) would indicate that the longer the time that incarceration increased, the lesser
effect it would have on the national crime rate.

On other explanatory theories, Zimring:

1
Franklin Zimring, The Great American Crime Decline (forthcoming 2006).
disagrees with Levitt that increased ratios of police to population played a demonstrable
role.
agrees with Levitt that innovative police strategies played no demonstrable role while
adding that because police governance is so decentralized it is unlikely to affect crime
nationally;
concedes that declines in crack/cocaine use helped reduce crime but cautions that there is
a natural limit to the size of this influence.
questions the role that legalized abortion played in the crime drop, noting the lack of
evidence that the legal change reduced the birth rate among, or the incidence of children
living in, poverty with single mothers, which would have been the intermediate causal
links between the legal changes and lower crime rates.

One factor Zimring does cautiously credit is the smaller youth and very young
adult population in this period—the percentage of the population in the high-risk ages of
15 to 29 dropped from 27.4% to 20.9% in ten years. One reason Zimring is attracted to
this explanation is that it helps him address a larger, previously vexing
issue—comparison to Canada. Put simply, Canada, a contiguous nation remarkably
similar to the United States along most economic and cultural dimensions, experienced a
similar crime drop in the 1990’s without any of the other specific short-term factors (i.e.,
incarceration rate changes and police practices) often cited to explain the American drop.
The comparison to Canada reinforces Zimring’s doubts about these proffered factors, and
he is therefore cautiously attracted to the age phenomenon because this is one short-term
the two countries do share.

Overall, Zimring believes that a series of “glad tidings” or convenient

circumstances helped contribute to the crime decline. Increased police power, higher
rates of incarceration, decreased unemployment, and most importantly, a smaller youth
population together all affected the crime rate. But he is deeply agnostic about the
possibility of truly proving any of these as causes or extrapolating new projections from
them, admonishing that the decline era may be ending in a plateau or “soft landing” with
no clear indications of whether it will now go up or down or stay flat.

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The principle of selective incapacitation be seen as a species of “preventive
detention”—with the distinguishing factor that it requires one proven crime as a
predicate. For a note on recent developments in the debate over preventive detention
more generally, see the new note keyed to case book p. 102, below.

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 Recent research on and legal efforts to reduce sexual assault in prison have
produced important new data and commentary. For a review of them in detail, see the
end of the new note keyed to case book p. 966, below.

Page 102 – Add after Note 4:

Recently, debates over a number of controversial legal issues have produced both
staunch support for and opposition to preventive detention. Topics ranging from sexual
predator laws to the legality of American polices at Guantánamo Bay have complicated
efforts to balance individual liberty and public security.

Critics, of course, worry that widely implemented preventive detention could

become an extension of, or even replacement for, criminal punishment—implemented,
most troublingly, without criminal adjudication of any completed criminal acts. Yet legal
scholars have recently defended preventive detention as consistent with American legal
traditions. In an important recent article,2 Christopher Slobogin investigates and
advocates the legitimacy of various interventions which result in some form of
preventive detention. Preventive detention, he writes, may not occur “unless the
individual has either caused harm to another or has engaged in conduct that evidences
obvious risk.” To Slobogin’s thinking, preventive detention is acceptable for those who
are ignorant of the criminality of their actions—such as the seriously mentally ill—as
well as those who are aware of their actions and are still willing to risk loss of freedom or
death in order to commit crime despite the serious and significant consequences,
including likelihood of apprehension.3

Slobogin further notes that preventive detention is not a new tool limited to sexual
predator laws—“its most conspicuous guise”—but is “the key feature of civil
commitment and police stops on the street, as well as a significant component in many
criminal sentences and an intrinsic element of crimes such as possession and
endangerment.” To Slobogin’s thinking, certain deprivations of liberty based on
dangerousness are justified, and courts and lawyers need to pay greater attention to the
ways in which such methods are already explained and implemented.4 He writes:

Certainly a primary function of government is to prevent harm to its

citizens, and laws that incapacitate individuals simply upon evidence that
they are likely to cause such harm would seem to be one effective manner of
doing so…. Why shouldn’t the state be empowered to take preventive action
against any individual who is likely to wreak havoc on society?5

2
Christopher Slobogin, A Jurisprudence of Dangerousness, 98 Nw. L. Rev. 1 (2003).
3
Id. at 28-29.
4
Id. at 62.
5
Id. at 5-6.
 Slobogin defines preventive detention as “a deprivation of liberty based on
prediction of harmful conduct that is not time-limited by culpability or other
considerations (such as a pending trial) and that, as a consequence, can last for many
months or years.”6 He offers three key examples of individuals he takes to illustrate the
clear necessity for reasonable preventive detention. (1) Leroy Hendricks, a man who after
serving five sentences for child molestation reportedly told his court-appointed
evaluators that he would never stop molesting children as long as he were alive; (2)
Garry David, a man diagnosed with antisocial personality disorder, serving a 14-year
sentence for shooting a woman and two police officers, who assaulted more than 15
inmates and guards while incarcerated; and (3) Zacarias Moussaoui, a man known to
have trained in Osama bin Laden’s camps in Afghanistan and accused of conspiratorial
involvement in the attacks of September 11, 2001 (Moussaoui was tried and convicted
and sentenced to life imprisonment in 2006).

Slobogin’s so-called “jurisprudence of dangerousness” is based on three premises.

First, he asserts that the limitations and potential abuses commonly associated with
preventive detention

can be minimized—or at least reduced to a level no higher than exists in

any alternative police power regime—through periodic review, rules
requiring treatment and detention in the least restrictive manner feasible, a
threshold requirement of obviously risky conduct, and increasingly
heavier burdens of proof as the detention lengthens.

Second, he argues that while preventive detention is an affront to a notion of individual

autonomy when criminal punishment is available, it is legitimate for those “who are
unaware of the criminality of their actions” as well as those who are so committed to
crime (and are aware of that commitment) and are still willing to risk significant loss of
freedom or death despite the likelihood of apprehension. Third, he asserts that
dangerousness can be reasonably well predicted for legal purposes—this assertion stems
“from the belief that we can not justifiably demand more accuracy in the preventive
detention setting than we do in the criminal law.”7

Slobogin notes that in the case involving Leroy Hendricks, the Supreme Court
justified “civil commitment” of sexual predators where they are demonstrably unable to
control their behavior. Kansas v. Hendricks, 521 U.S. 346 (1997). Slobogin criticizes this
“inability-to-control” formulation and writes that its “approach is problematic to the
extent it relies on the concept of volitional impairment.” He proposes a new criterion to
“normatively [distinguish] the dangerous person who may be preventively detained from
the dangerous person who may not be”—a so-called “core trait” which he terms
“undeterrability.” Slobogin defines undeterrability as “the characteristic ignorance that
one’s criminal activity is criminal or a characteristic willingness to commit crime despite
certain and significant punishment.” The commands of the criminal justice system are
irrelevant to the undeterrable individual, and the ways in which such individuals are dealt

6
Id. at 2.
7
Id. at 62.
with must be rethought and carefully considered, writes Slobogin. Undeterrable
individuals are those whose “desire for the ‘benefit’ they receive from crime is
demonstrably greater than their fear of significant punishment.”8 For Slobogin, his
standard of undeterrability “would allow preventive detention of some people who are
not seriously mentally ill. At the same time, it would stop short of authorizing such
detention for all, or even most, who have impulse disorders.” He argues that
undeterrability is superior in that it encompasses those lacking in autonomy due to mental
disability, as well as those “who are not insane but who can nonetheless be denied the
right to punishment because of their manifest obliviousness to society’s most important
criminal prohibitions.” The “undeterrability formulation of the psychological criterion for
preventive detention” is useful, he claims, in that it “is narrower than the Court’s
inability-to-control criterion and broader than the insanity formulation,” which he
believes is too narrow.9

Slobogin argues that undeterrability “clearly describes the mentally ill person
who is oblivious to societal mores or who is irrationally convinced that his criminal
actions do not violate them. But it might also describe the extremely impulsive individual
who, like Hendricks or David, is willing to commit a crime despite the very high
likelihood of apprehension.” Slobogin asserts that the term “may even apply to someone
like Moussaoui, who suffers from neither a major mental disorder nor a volitional
dysfunction, but who wants to commit crime so badly he is willing to die for it.” (“The
preventive detention of someone like Moussaoui is undoubtedly not authorized by the
Court’s caselaw to date,” Slobogin writes. He sees this as a problem.) Slobogin’s
criterion addresses “both those who act for their own ends or for the ends of others.” The
latter category includes certain terrorists as well as those who commit violence at
abortion clinics and claim do so in the name of God, religion, or some other higher
power.10

Slobogin considers four objections to a preventive regime—unreliability,

“punishment in disguise,” legality, and dehumanization—and concludes that each
objection suggests limitations on preventive detention but that none of them warrants
prohibition of detention under all circumstances. With respect to the unreliability
objection, Slobogin argues that “we can predict dangerousness at least as well as we can
assess culpability.” He asserts that the reasonable doubt standard may be too strict if the
state’s goal is to prevent rather than punish harm, and claims furthermore that the
standard is not necessarily adhered to in all criminal cases and that it is inconsistent to try
to apply it to preventive detention cases. He writes that “a large number of crimes not
only do not require proof of any harm, but are based on very weak predictions of harm.
That suggests that if the state’s police power were to be consistently instituted, initial
preventive detention could justifiably be based on very weak predictions as well”:… If
we are willing to countenance a criminal system based on this degree of uncertainty, we

8
Id. at 44.
9
Id. at 62.
10
Id. at 47.
may be hard-pressed to criticize a preventive detention regime on unreliability
grounds.”11

The punishment-in-disguise objection concerns the blending of the lines between

civil and criminal procedure, and what separates criminal punishment from preventive
detention. Slobogin cites Allen v. Illinois, 478 U.S. 364. 377-79 (1986), in which Justice
Stevens, in his dissent, “expressed concern that the Court’s willingness to label
preventive detention laws ‘civil’ rather than ‘criminal’ would encourage a proliferation of
such statutes,” and speculated that such thinking could give rise to “a shadow criminal
code … that would give prosecutors the discretion to detain preventively a wide array of
dangerous offenders.” Slobogin writes that a preventive detention regime requires
“efforts at treatment, alternatives to institutionalization, and periodic review. If any of
these three conditions are unmet, then the deprivation of liberty fails to bear a reasonable
relationship to the purpose of preventing harm, and either must end or be justified
through the criminal process.”12

In his discussion of the legality objection, Slobogin argues that legality and other
due process principles bar the state from depriving a person of liberty on preventive
grounds except where the person has engaged in conduct that causes serious physical
harm or otherwise obviously manifests a risk of such harm. The thrust behind the
dehumanization objection is that, “even if all of the other objections are met, a regime
that deprives people of liberty based on what they will do rather than what they have
done shows insufficient respect for the individual.” The thought is that preventive
detention undermines a person’s status as a self-governing, autonomous being. Slobogin
cites Hegel and the deontological tradition, writing of the individual’s “right to be
punished”—the idea that the individual is honored as a rational human being, not simply
a harmful animal, through punishment, not rehabilitation or some form of imposed
pacification. Undeterrability—unlike the Supreme Court’s criterion which to some extent
denudes the individual of agency—invests the individual with responsibility for his
actions. Slobogin also writes of the dangers of a “dual track regime,” in which
“offenders” are differentiated from “predators” or “dangerous beings.” Those placed in
the bad track, he argues, will be more likely to behave as the “predators” they are labeled
and less likely to be perceived as individuals responsible for their actions or character. At
the end of his discussion of the dehumanizing objection, Slobogin states that he is only
partly convinced by the objection because it is so abstract, and goes on to write: “What I
do find palpably dehumanizing, however, is preventive detention that occurs when both
punishment and preventive detention are options, and the state decides to use the second
form of social control rather than the first.”13

Slobogin acknowledges the concerns (and fear) of some critics that preventive
detention could become an extension of, or even replacement for, criminal punishment
without criminal adjudication. He writes: “After Hendricks gave the green light to full
scale, post-sentence preventive detention for sex offenders, the legislative enthusiasm for

11
Id. at 56.
12
Id. at 11-16.
13
Id. at 26-31.
such schemes rose momentarily but has since abated, and prosecutors in most states with
such laws have not rushed to abandon the criminal process in favor of ‘easier’ petitions
for commitment.” Slobogin agrees with the Supreme Court that “preventive detention,
properly structured, is not criminal punishment.”14

Focusing especially on anti-terrorist measures, Prof. Eric Posner, too, defends the
wisdom behind preventive detention. Both states and the federal government, he writes,
have long criminalized subversive speech calling for the violent overthrow of
government and have authorized criminal punishment of people deemed dangerous who
had not caused any actual harm. Posner also cites the historical detention and even
deportation of undocumented aliens and enemy soldiers believed to be dangerous. Enemy
aliens and soldiers, he writes, are not detained because they have committed any crime,
but because they are dangerous. According to Posner, “[t]he half-truth that one can be
punished only for committing a crime needs to be filled out with the larger truth that the
government may detain dangerous people in order to protect the public.”15 The standard
of preventive detention rests, in many ways, on whether the goal of the state is to prevent
or punish harm to its citizens.

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The Blakely/Booker Revolution

In June 2004, the Supreme Court rocked the American criminal justice system in
a case from Washington State that tested the meaning and scope of Apprendi. Ralph
Blakely had pleaded guilty to kidnapping his estranged wife. The facts admitted in his
plea, standing alone, supported a maximum sentence of 53 months, but the judge
imposed a 90-month sentence after finding that petitioner had acted with deliberate
cruelty, a factor that by statute called for a departure from the standard range. The state
courts rejected Blakely’s argument that his sentence violated Apprendi. After all, his
enhanced sentence was still well under the 10-year statutory maximum for kidnaping.
Nevertheless, the Supreme Court reversed. Addressing the core holding of
Apprendi that, “[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt,” the Court in effect redefined the concept of
the statutory maximum” as the maximum a judge may impose based solely on the facts
reflected in the jury verdict or admitted by the defendant. For Blakely, the judge could
not have imposed the 90-month sentence based solely on the facts admitted in the guilty
plea, because Washington law requires an exceptional sentence to be based on factors
other than those used in computing the standard-range sentence. Writing for the Court,
Justice Scalia explained that regardless of whether the judge’s authority to impose the
enhanced sentence depends on a judge’s finding a specified fact, one of several specified

14
Id. at 12.
15
Eric Posner, A Threat That Belongs Behind Bars, New York Times, June 25, 2006, sec. 4, at 12.
facts, or any aggravating fact, the crucial test is whether the jury’s verdict (or the
defendant’s plea) alone authorizes the sentence.
The Blakely decision immediately caused courts, legislatures, sentencing
commissions and legal scholars to reappraise the structures and procedures of virtually
every sentencing scheme in the United States. State systems vary widely in the degree to
which they must now alter their systems to comply with Blakely. But the most
immediate question after Blakely was whether, as Justice O’Connor admonished in her
Blakely dissent, the Court’s decision effectively undermined the United States Sentencing
Guideline system as it was designed to operate. The answer came just a few months
later, in the following case:
 UNITED STATES v. BOOKER
Supreme Court of the United States
543 U.S. 220 (2005)

JUSTICE STEVENS delivered the opinion of the Court in part.16

The question presented in each of these cases17 is whether an application of the
Federal Sentencing Guidelines violated the Sixth Amendment. In each case, the courts
below held that binding rules set forth in the Guidelines limited the severity of the
sentence that the judge could lawfully impose on the defendant based on the facts found
by the jury at his trial. In both cases the courts rejected, on the basis of our decision in
Blakely v. Washington, 542 U.S. 296 (2004), the Government’s recommended
application of the Sentencing Guidelines because the proposed sentences were based on
additional facts that the sentencing judge found by a preponderance of the evidence. We
hold that both courts correctly concluded that the Sixth Amendment as construed in
Blakely does apply to the Sentencing Guidelines. In a separate opinion authored by
Justice Breyer, the Court concludes that in light of this holding, two provisions of the
Sentencing Reform Act of 1984 (SRA) that have the effect of making the Guidelines
mandatory must be invalidated in order to allow the statute to operate in a manner
consistent with congressional intent.
… Booker was charged with possession with intent to distribute at least 50
grams of cocaine base (crack). Having heard evidence that he had 92.5 grams in his
duffel bag, the jury found him guilty of violating 21 U.S.C. § 841(a)(1). That statute
prescribes a minimum sentence of 10 years in prison and a maximum sentence of life for
that offense.
Based upon Booker’s criminal history and the quantity of drugs found by the
jury, the Sentencing Guidelines required the District Court Judge to select a “base”
sentence of not less than 210 nor more than 262 months in prison. See Guidelines Manual
§§2D1.1(c)(4), 4A1.1. The judge, however, held a post-trial sentencing proceeding and
concluded by a preponderance of the evidence that Booker had possessed an additional
566 grams of crack and that he was guilty of obstructing justice. Those findings
mandated that the judge select a sentence between 360 months and life imprisonment; the
judge imposed a sentence at the low end of the range. Thus, instead of the sentence of 21
years and 10 months that the judge could have imposed on the basis of the facts proved to
the jury beyond a reasonable doubt, Booker received a 30-year sentence….
In Blakely v. Washington, 542 U.S. 296 (2004), we dealt with a determinate
sentencing scheme similar to the Federal Sentencing Guidelines. There the defendant
pleaded guilty to kidnaping, a class B felony punishable by a term of not more than 10
years. Other provisions of Washington law, comparable to the Federal Sentencing

16
Justice Stevens wrote the majority opinion on the constitutionality of the Guidelines; Justice Breyer wrote
a separate majority opinion (below) on the remedy the Court imposed to solve the constitutional problem--
an opinion from which Justice Stevens, among others, dissented.
17
The Booker case was joined with another, United States v. Fanfan, but the excerpt here only deals with
Booker.
Guidelines, mandated a “standard” sentence of 49-to-53 months, unless the judge found
aggravating facts justifying an exceptional sentence. Although the prosecutor
recommended a sentence in the standard range, the judge found that the defendant had
acted with “ ‘deliberate cruelty’ ” and sentenced him to 90 months.
For reasons explained in Jones, Apprendi, and Ring, the requirements of the
Sixth Amendment were clear. The application of Washington’s sentencing scheme
violated the defendant’s right to have the jury find the existence of “ ‘any particular
fact’ ” that the law makes essential to his punishment. That right is implicated whenever
a judge seeks to impose a sentence that is not solely based on “facts reflected in the jury
verdict or admitted by the defendant.” We rejected the State’s argument that the jury
verdict was sufficient to authorize a sentence within the general 10-year sentence for
Class B felonies, noting that under Washington law, the judge was required to find
additional facts in order to impose the greater 90-month sentence. Our precedents, we
explained, make clear “that the ‘statutory maximum’ for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.” (emphasis in original). The determination that
the defendant acted with deliberate cruelty, like the determination in Apprendi that the
defendant acted with racial malice, increased the sentence that the defendant could have
otherwise received. Since this fact was found by a judge using a preponderance of the
evidence standard, the sentence violated Blakely’s Sixth Amendment rights.
As the dissenting opinions in Blakely recognized, there is no distinction of
constitutional significance between the Federal Sentencing Guidelines and the
Washington procedures at issue in that case. (“The structure of the Federal Guidelines
likewise does not, as the Government half-heartedly suggests, provide any grounds for
distinction. … If anything, the structural differences that do exist make the Federal
Guidelines more vulnerable to attack”). This conclusion rests on the premise, common to
both systems, that the relevant sentencing rules are mandatory and impose binding
requirements on all sentencing judges. (opinion of O’Connor, J.)
If the Guidelines as currently written could be read as merely advisory
provisions that recommended, rather than required, the selection of particular sentences
in response to differing sets of facts, their use would not implicate the Sixth Amendment.
We have never doubted the authority of a judge to exercise broad discretion in imposing
a sentence within a statutory range. Williams v. New York, 337 U.S. 241, 246 (1949).
Indeed, everyone agrees that the constitutional issues presented by these cases would
have been avoided entirely if Congress had omitted from the SRA the provisions that
make the Guidelines binding on district judges…. For when a trial judge exercises his
discretion to select a specific sentence within a defined range, the defendant has no right
to a jury determination of the facts that the judge deems relevant.
The Guidelines as written, however, are not advisory; they are mandatory and
binding on all judges. While subsection (a) of §3553 of the sentencing statute lists the
Sentencing Guidelines as one factor to be considered in imposing a sentence, subsection
(b) directs that the court “shall impose a sentence of the kind, and within the range”
established by the Guidelines, subject to departures in specific, limited cases. Because
they are binding on judges, we have consistently held that the Guidelines have the force
and effect of laws. See, e.g., Mistretta v. United States, 488 U.S. 361, 391 (1989).
The availability of a departure in specified circumstances does not avoid the
constitutional issue, just as it did not in Blakely itself. The Guidelines permit departures
from the prescribed sentencing range in cases in which the judge “finds that there exists
an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken
into consideration by the Sentencing Commission in formulating the guidelines that
should result in a sentence different from that described.” 18 U.S.C. A. §3553(b)(1). At
first glance, one might believe that the ability of a district judge to depart from the
Guidelines means that she is bound only by the statutory maximum. Were this the case,
there would be no Apprendi problem. Importantly, however, departures are not available
in every case, and in fact are unavailable in most. In most cases, as a matter of law, the
Commission will have adequately taken all relevant factors into account, and no
departure will be legally permissible. In those instances, the judge is bound to impose a
sentence within the Guidelines range. It was for this reason that we rejected a similar
argument in Blakely, holding that although the Washington statute allowed the judge to
impose a sentence outside the sentencing range for “ ‘substantial and compelling
reasons,’ ” that exception was not available for Blakely himself. The sentencing judge
would have been reversed had he invoked the departure section to justify the sentence.
Booker’s case illustrates the mandatory nature of the Guidelines. The jury
convicted him of possessing at least 50 grams of crack in violation of 21 U.S.C. §
841(b)(1)(A)(iii) based on evidence that he had 92.5 grams of crack in his duffel bag.
Under these facts, the Guidelines specified an offense level of 32, which, given the
defendant’s criminal history category, authorized a sentence of 210-to-262 months. See
USSG §2D1.1(c)(4). Booker’s is a run-of-the-mill drug case, and does not present any
factors that were inadequately considered by the Commission. The sentencing judge
would therefore have been reversed had he not imposed a sentence within the level 32
Guidelines range.
Booker’s actual sentence, however, was 360 months, almost 10 years longer
than the Guidelines range supported by the jury verdict alone. To reach this sentence, the
judge found facts beyond those found by the jury: namely, that Booker possessed 566
grams of crack in addition to the 92.5 grams in his duffel bag. The jury never heard any
evidence of the additional drug quantity, and the judge found it true by a preponderance
of the evidence. Thus, just as in Blakely, “the jury’s verdict alone does not authorize the
sentence. The judge acquires that authority only upon finding some additional fact.”
There is no relevant distinction between the sentence imposed pursuant to the
Washington statutes in Blakely and the sentences imposed pursuant to the Federal
Sentencing Guidelines in these cases.
In his dissent, Breyer argues on historical grounds that the Guidelines scheme
is constitutional across the board. He points to traditional judicial authority to increase
sentences to take account of any unusual blameworthiness in the manner employed in
committing a crime, an authority that the Guidelines require to be exercised consistently
throughout the system. This tradition, however, does not provide a sound guide to
enforcement of the Sixth Amendment’s guarantee of a jury trial in today’s world.
 It is quite true that once determinate sentencing had fallen from favor,
American judges commonly determined facts justifying a choice of a heavier sentence on
account of the manner in which particular defendants acted. In 1986, however, our own
cases first recognized a new trend in the legislative regulation of sentencing when we
considered the significance of facts selected by legislatures that not only authorized, or
even mandated, heavier sentences than would otherwise have been imposed, but
increased the range of sentences possible for the underlying crime. Provisions for such
enhancements of the permissible sentencing range reflected growing and wholly justified
legislative concern about the proliferation and variety of drug crimes and their frequent
identification with firearms offences.
The effect of the increasing emphasis on facts that enhanced sentencing ranges,
however, was to increase the judge’s power and diminish that of the jury. It became the
judge, not the jury, that determined the upper limits of sentencing, and the facts
determined were not required to be raised before trial or proved by more than a
preponderance.
As the enhancements became greater, the jury’s finding of the underlying crime
became less significant. And the enhancements became very serious indeed. See, e.g.,
Jones, 526 U.S., at 330 (judge’s finding increased the maximum sentence from 15 to 25
years); respondent Booker (from 262 months to a life sentence); respondent Fanfan (from
78 to 235 months); United States v. Rodriguez, 73 F.3d 161, 162—163 (CA7 1996)
(Posner, C. J., dissenting from denial of rehearing en banc) (from approximately 54
months to a life sentence); United States v. Hammoud, 381 F.3d 316, 361—362 (CA4
2004) (en banc) (Motz, J., dissenting) (actual sentence increased from 57 months to 155
years).
As it thus became clear that sentencing was no longer taking place in the
tradition that Justice Breyer invokes, the Court was faced with the issue of preserving an
ancient guarantee under a new set of circumstances. The new sentencing practice forced
the Court to address the question how the right of jury trial could be preserved, in a
meaningful way guaranteeing that the jury would still stand between the individual and
the power of the government under the new sentencing regime. And it is the new
circumstances, not a tradition or practice that the new circumstances have superseded,
that have led us to the answer first considered in Jones and developed in Apprendi and
subsequent cases culminating with this one. It is an answer not motivated by Sixth
Amendment formalism, but by the need to preserve Sixth Amendment substance.
The Government advances three arguments in support of its submission that we
should not apply our reasoning in Blakely to the Federal Sentencing Guidelines. It
contends that Blakely is distinguishable because the Guidelines were promulgated by a
commission rather than the Legislature; that principles of stare decisis require us to
follow four earlier decisions that are arguably inconsistent with Blakely; and that the
application of Blakely to the Guidelines would conflict with separation of powers
principles reflected in Mistretta v. United States, supra.
[The Court rejected these arguments, the third as follows]
 Finally, the Government … argue[s] that any holding that would require
Guidelines sentencing factors to be proved to a jury beyond a reasonable doubt would
effectively transform them into a code defining elements of criminal offenses. The result,
according to the Government, would be an unconstitutional grant to the Sentencing
Commission of the inherently legislative power to define criminal elements.
There is no merit to this argument because the Commission’s authority to
identify the facts relevant to sentencing decisions and to determine the impact of such
facts on federal sentences is precisely the same whether one labels such facts “sentencing
factors” or “elements” of crimes. Our decision in Mistretta, 488 U.S., at 371, upholding
the validity of the delegation of that authority, is unaffected by the characterization of
such facts, or by the procedures used to find such facts in particular sentencing
proceedings. Indeed, we rejected a similar argument in Jones:
Contrary to the dissent’s suggestion, the constitutional proposition that
drives our concern in no way ‘call[s] into question the principle that the
definition of the elements of a criminal offense is entrusted to the
legislature.’ The constitutional guarantees that give rise to our concern in
no way restrict the ability of legislatures to identify the conduct they wish
to characterize as criminal or to define the facts whose proof is essential to
the establishment of criminal liability. The constitutional safeguards that
figure in our analysis concern not the identity of the elements defining
criminal liability but only the required procedures for finding the facts that
determine the maximum permissible punishment; these are the safeguards
going to the formality of notice, the identity of the factfinder, and the
burden of proof. 526 U.S., at 243, n. 6….
All of the foregoing support our conclusion that our holding in Blakely applies
to the Sentencing Guidelines. We recognize, as we did in Jones, Apprendi, and Blakely,
that in some cases jury factfinding may impair the most expedient and efficient
sentencing of defendants. But the interest in fairness and reliability protected by the right
to a jury trial–a common-law right that defendants enjoyed for centuries and that is now
enshrined in the Sixth Amendment–has always outweighed the interest in concluding
trials swiftly.
Accordingly, we reaffirm our holding in Apprendi: Any fact (other than a prior
conviction) which is necessary to support a sentence exceeding the maximum authorized
by the facts established by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.
_______
JUSTICE BREYER delivered the opinion of the Court in part.
We here turn to the second question presented, a question that concerns the
remedy. We must decide whether or to what extent, “as a matter of severability analysis,”
the Guidelines “as a whole” are “inapplicable … such that the sentencing court must
exercise its discretion to sentence the defendant within the maximum and minimum set
by statute for the offense of conviction.” …
We answer the remedial question by looking to legislative intent. We seek to
determine what “Congress would have intended” in light of the Court’s constitutional
holding. In this instance, we must determine which of the two following remedial
approaches is the more compatible with the legislature’s intent as embodied in the 1984
Sentencing Act.
One approach, that of Justice Stevens’ dissent, would retain the Sentencing Act
(and the Guidelines) as written, but would engraft onto the existing system today’s Sixth
Amendment “jury trial” requirement. The addition would change the Guidelines by
preventing the sentencing court from increasing a sentence on the basis of a fact that the
jury did not find (or that the offender did not admit).
The other approach, which we now adopt, would (through severance and
excision of two provisions) make the Guidelines system advisory while maintaining a
strong connection between the sentence imposed and the offender’s real conduct–a
connection important to the increased uniformity of sentencing that Congress intended its
Guidelines system to achieve.
Both approaches would significantly alter the system that Congress designed.
But today’s constitutional holding means that it is no longer possible to maintain the
judicial factfinding that Congress thought would underpin the mandatory Guidelines
system that it sought to create and that Congress wrote into the Act in 18 U.S.C. A.
§§3553(a) and 3661. Hence we must decide whether we would deviate less radically
from Congress’ intended system (1) by superimposing the constitutional requirement
announced today or (2) through elimination of some provisions of the statute.
… [S]ometimes severability questions (questions as to how, or whether,
Congress would intend a statute to apply) can arise when a legislatively unforeseen
constitutional problem requires modification of a statutory provision as applied in a
significant number of instances….
In today’s context–a highly complex statute, interrelated provisions, and a
constitutional requirement that creates fundamental change–we cannot assume that
Congress, if faced with the statute’s invalidity in key applications, would have preferred
to apply the statute in as many other instances as possible. Neither can we determine
likely congressional intent mechanically. We cannot simply approach the problem
grammatically, say, by looking to see whether the constitutional requirement and the
words of the Act are linguistically compatible.
Nor do simple numbers provide an answer. It is, of course, true that the
numbers show that the constitutional jury trial requirement would lead to additional
decisionmaking by juries in only a minority of cases. Prosecutors and defense attorneys
would still resolve the lion’s share of criminal matters through plea bargaining, and plea
bargaining takes place without a jury. Many of the rest involve only simple issues
calling for no upward Guidelines adjustment. And in at least some of the remainder, a
judge may find adequate room to adjust a sentence within the single Guidelines range to
which the jury verdict points, or within the overlap between that range and the next
highest.
But the constitutional jury trial requirement would nonetheless affect every
case. It would affect decisions about whether to go to trial. It would affect the content of
plea negotiations. It would alter the judge’s role in sentencing. Thus we must determine
likely intent not by counting proceedings, but by evaluating the consequences of the
Court’s constitutional requirement in light of the Act’s language, its history, and its basic
purposes.
Several considerations convince us that, were the Court’s constitutional
requirement added onto the Sentencing Act as currently written, the requirement would
so transform the scheme that Congress created that Congress likely would not have
intended the Act as so modified to stand. First, the statute’s text states that “[t]he court”
when sentencing will consider “the nature and circumstances of the offense and the
history and characteristics of the defendant.” 18 U.S.C. A. §3553(a)(1). In context, the
words “the court” mean “the judge without the jury,” not “the judge working together
with the jury.” A further statutory provision, by removing typical “jury trial” evidentiary
limitations, makes this clear. See §3661 (ruling out any “limitation … on the information
concerning the [offender’s] background, character, and conduct” that the “court … may
receive”).…
Second, Congress’ basic statutory goal–a system that diminishes sentencing
disparity–depends for its success upon judicial efforts to determine, and to base
punishment upon, the real conduct that underlies the crime of conviction. That
determination is particularly important in the federal system where crimes defined as, for
example, “obstruct[ing], delay[ing], or affect[ing] commerce or the movement of any
article or commodity in commerce, by … extortion,” 18 U.S.C. § 1951(a), or, say, using
the mail “for the purpose of executing” a “scheme or artifice to defraud,” §1341, can
encompass a vast range of very different kinds of underlying conduct. But it is also
important even in respect to ordinary crimes, such as robbery, where an act that meets the
statutory definition can be committed in a host of different ways. Judges have long
looked to real conduct when sentencing. Federal judges have long relied upon a
presentence report, prepared by a probation officer, for information (often unavailable
until after the trial) relevant to the manner in which the convicted offender committed the
crime of conviction….
To engraft the Court’s constitutional requirement onto the sentencing statutes,
however, would destroy the system. It would prevent a judge from relying upon a
presentence report for factual information, relevant to sentencing, uncovered after the
trial. In doing so, it would, even compared to pre-Guidelines sentencing, weaken the tie
between a sentence and an offender’s real conduct. It would thereby undermine the
sentencing statute’s basic aim of ensuring similar sentences for those who have
committed similar crimes in similar ways.
Several examples help illustrate the point. Imagine Smith and Jones, each of
whom violates the Hobbs Act in very different ways. See 18 U.S.C. § 1951(a)
(forbidding “obstruct[ing], delay[ing], or affect[ing] commerce or the movement of any
article or commodity in commerce, by … extortion”). Smith threatens to injure a co-
worker unless the co-worker advances him a few dollars from the interstate company’s
till; Jones, after similarly threatening the co-worker, causes far more harm by seeking far
more money, by making certain that the co-worker’s family is aware of the threat, by
arranging for deliveries of dead animals to the co-worker’s home to show he is serious,
and so forth. The offenders’ behavior is very different; the known harmful consequences
of their actions are different; their punishments both before, and after, the Guidelines
would have been different. But, under the dissenters’ approach, unless prosecutors decide
to charge more than the elements of the crime, the judge would have to impose similar
punishments.
Now imagine two former felons, Johnson and Jackson, each of whom engages
in identical criminal behavior: threatening a bank teller with a gun, securing $50,000, and
injuring an innocent bystander while fleeing the bank. Suppose prosecutors charge
Johnson with one crime (say, illegal gun possession, see 18 U.S.C. § 922(g)) and Jackson
with another (say, bank robbery, see §2113(a)). Before the Guidelines, a single judge
faced with such similar real conduct would have been able (within statutory limits) to
impose similar sentences upon the two similar offenders despite the different charges
brought against them. The Guidelines themselves would ordinarily have required judges
to sentence the two offenders similarly. But under the dissenters’ system, in these
circumstances the offenders likely would receive different punishments.
Consider, too, a complex mail fraud conspiracy where a prosecutor may well
be uncertain of the amount of harm and of the role each indicted individual played until
after conviction–when the offenders may turn over financial records, when it becomes
easier to determine who were the leaders and who the followers, when victim interviews
are seen to be worth the time. In such a case the relation between the sentence and what
actually occurred is likely to be considerably more distant under a system with a jury trial
requirement patched onto it than it was even prior to the Sentencing Act, when judges
routinely used information obtained after the verdict to decide upon a proper sentence.
This point is critically important. Congress’ basic goal in passing the
Sentencing Act was to move the sentencing system in the direction of increased
uniformity. That uniformity does not consist simply of similar sentences for those
convicted of violations of the same statute–a uniformity consistent with the dissenters’
remedial approach. It consists, more importantly, of similar relationships between
sentences and real conduct, relationships that Congress’ sentencing statutes helped to
advance and that Justice Stevens’ approach would undermine….
Third, the sentencing statutes, read to include the Court’s Sixth Amendment
requirement, would create a system far more complex than Congress could have
intended. How would courts and counsel work with an indictment and a jury trial that
involved not just whether a defendant robbed a bank but also how? Would the indictment
have to allege, in addition to the elements of robbery, whether the defendant possessed a
firearm, whether he brandished or discharged it, whether he threatened death, whether he
caused bodily injury, whether any such injury was ordinary, serious, permanent or life
threatening, whether he abducted or physically restrained anyone, whether any victim
was unusually vulnerable, how much money was taken, and whether he was an organizer,
leader, manager, or supervisor in a robbery gang? If so, how could a defendant mount a
defense against some or all such specific claims should he also try simultaneously to
maintain that the Government’s evidence failed to place him at the scene of the crime?
Would the indictment in a mail fraud case have to allege the number of victims, their
vulnerability, and the amount taken from each? How could a judge expect a jury to work
with the Guidelines’ definitions of, say, “relevant conduct,” which includes “all acts and
omissions committed, aided, abetted, counseled, commanded, induced, procured, or
willfully caused by the defendant; and [in the case of a conspiracy] all reasonably
foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal
activity”? How would a jury measure “loss” in a securities fraud case–a matter so
complex as to lead the Commission to instruct judges to make “only … a reasonable
estimate”? §2B1.1, comment., n. 3(C). How would the court take account, for
punishment purposes, of a defendant’s contemptuous behavior at trial–a matter that the
Government could not have charged in the indictment? §3C1.1.
Fourth, plea bargaining would not significantly diminish the consequences of
the Court’s constitutional holding for the operation of the Guidelines. Rather, plea
bargaining would make matters worse. Congress enacted the sentencing statutes in major
part to achieve greater uniformity in sentencing, i.e., to increase the likelihood that
offenders who engage in similar real conduct would receive similar sentences. The
statutes reasonably assume that their efforts to move the trial-based sentencing process in
the direction of greater sentencing uniformity would have a similar positive impact upon
plea-bargained sentences, for plea bargaining takes place in the shadow of (i.e., with an
eye towards the hypothetical result of) a potential trial….
…[I]n a sentencing system modified by the Court’s constitutional
requirement, plea bargaining would likely lead to sentences that gave greater weight,
not to real conduct, but rather to the skill of counsel, the policies of the prosecutor, the
caseload, and other factors that vary from place to place, defendant to defendant, and
crime to crime. Compared to pre-Guidelines plea bargaining, plea bargaining of this
kind would necessarily move federal sentencing in the direction of diminished, not
increased, uniformity in sentencing. It would tend to defeat, not to further, Congress’
basic statutory goal.
Such a system would have particularly troubling consequences with respect
to prosecutorial power. Until now, sentencing factors have come before the judge in the
presentence report. But in a sentencing system with the Court’s constitutional
requirement engrafted onto it, any factor that a prosecutor chose not to charge at the
plea negotiation would be placed beyond the reach of the judge entirely. Prosecutors
would thus exercise a power the Sentencing Act vested in judges: the power to decide,
based on relevant information about the offense and the offender, which defendants
merit heavier punishment.
In respondent Booker’s case, for example, the jury heard evidence that the
crime had involved 92.5 grams of crack cocaine, and convicted Booker of possessing
more than 50 grams. But the judge, at sentencing, found that the crime had involved an
additional 566 grams, for a total of 658.5 grams. A system that would require the jury,
 not the judge, to make the additional “566 grams” finding is a system in which the
prosecutor, not the judge, would control the sentence. That is because it is the
prosecutor who would have to decide what drug amount to charge. He could choose to
charge 658.5 grams, or 92.5, or less. It is the prosecutor who, through such a charging
decision, would control the sentencing range. And it is different prosecutors who, in
different cases–say, in two cases involving 566 grams–would potentially insist upon
different punishments for similar defendants who engaged in similar criminal conduct
involving similar amounts of unlawful drugs–say, by charging one of them with the full
566 grams, and the other with 10. As long as different prosecutors react differently, a
system with a patched-on jury factfinding requirement would mean different sentences
for otherwise similar conduct, whether in the context of trials or that of plea bargaining.
Fifth, Congress would not have enacted sentencing statutes that make it more
difficult to adjust sentences upward than to adjust them downward. As several United
States Senators have written in an amicus brief, “the Congress that enacted the 1984
Act did not conceive of–much less establish–a sentencing guidelines system in which
sentencing judges were free to consider facts or circumstances not found by a jury or
admitted in a plea agreement for the purpose of adjusting a base-offense level down,
but not up, within the applicable guidelines range. Such a one-way lever would be
grossly at odds with Congress’s intent.” Brief for Senator Orrin G. Hatch et al. as Amici
Curiae. Yet that is the system that the dissenters’ remedy would create.
For all these reasons, Congress, had it been faced with the constitutional jury
trial requirement, likely would not have passed the same Sentencing Act. It likely
would have found the requirement incompatible with the Act as written. Hence the Act
cannot remain valid in its entirety. Severance and excision are necessary.
We now turn to the question of which portions of the sentencing statute we
must sever and excise as inconsistent with the Court’s constitutional requirement.…
Most of the statute is perfectly valid. See, e.g., 18 U.S.C. A. §3551 (describing
authorized sentences as probation, fine, or imprisonment); §3552 (presentence reports);
§3554 (forfeiture); §3555 (notification to the victims); §3583 (supervised release).…
…[W]e must sever and excise two specific statutory provisions: the provision
that requires sentencing courts to impose a sentence within the applicable Guidelines
range (in the absence of circumstances that justify a departure), see 18 U.S.C. §
3553(b)(1) (Supp. 2004), and the provision that sets forth standards of review on appeal,
including de novo review of departures from the applicable Guidelines range, see
§3742(e)….
… Without the “mandatory” provision, the Act nonetheless requires judges to
take account of the Guidelines together with other sentencing goals. See 18 U.S.C. A.
§3553(a). The Act nonetheless requires judges to consider the Guidelines “sentencing
range established for … the applicable category of offense committed by the applicable
category of defendant,” §3553(a)(4), the pertinent Sentencing Commission policy
statements, the need to avoid unwarranted sentencing disparities, and the need to provide
restitution to victims, §§3553(a)(1), (3), (5)—(7). And the Act nonetheless requires
judges to impose sentences that reflect the seriousness of the offense, promote respect for
the law, provide just punishment, afford adequate deterrence, protect the public, and
effectively provide the defendant with needed educational or vocational training and
medical care. §3553(a)(2).
Moreover, despite the absence of §3553(b)(1), the Act continues to provide for
appeals from sentencing decisions (irrespective of whether the trial judge sentences
within or outside the Guidelines range in the exercise of his discretionary power under
§3553(a)). See §3742(a). We concede that the excision of §3553(b)(1) requires the
excision of a different, appeals-related section, namely §3742(e) (main ed. and Supp.
2004), which sets forth standards of review on appeal. That section contains critical
cross-references to the (now-excised) §3553(b)(1) and consequently must be severed and
excised for similar reasons.
Excision of §3742(e), however, does not pose a critical problem for the
handling of appeals. That is because, as we have previously held, a statute that does not
explicitly set forth a standard of review may nonetheless do so implicitly. We infer
appropriate review standards from related statutory language, the structure of the statute,
and the “sound administration of justice.” Pierce v. Underwood, 587 U.S. 552, 559—560
(1988). And in this instance those factors, in addition to the past two decades of appellate
practice in cases involving departures, imply a practical standard of review already
familiar to appellate courts: review for “unreasonable[ness].” 18 U.S.C. § 3742(e)(3).
Until 2003, §3742(e) explicitly set forth that standard. See §3742(e)(3) (1994
ed.). In 2003, Congress modified the pre-existing text, adding a de novo standard of
review for departures and inserting cross-references to §3553(b)(1).18 In light of today’s
holding, the reasons for these revisions–to make Guidelines sentencing even more
mandatory than it had been–have ceased to be relevant. The pre-2003 text directed
appellate courts to review sentences that reflected an applicable Guidelines range for
correctness, but to review other sentences–those that fell “outside the applicable
Guideline range”–with a view toward determining whether such a sentence
is unreasonable, having regard for … the factors to be considered in
imposing a sentence, as set forth in chapter 227 of this title; and … the
reasons for the imposition of the particular sentence, as stated by the
district court pursuant to the provisions of section 3553(c).” 18 U.S.C. §
3742(e)(3) (1994 ed.) (emphasis added).
In other words, the text told appellate courts to determine whether the sentence “is
unreasonable” with regard to §3553(a). Section 3553(a) remains in effect, and sets forth
numerous factors that guide sentencing. Those factors in turn will guide appellate courts,
as they have in the past, in determining whether a sentence is unreasonable….
Nor do we share the dissenters’ doubts about the practicality of a
“reasonableness” standard of review. “Reasonableness” standards are not foreign to
sentencing law. The Act has long required their use in important sentencing
circumstances–both on review of departures, and on review of sentences imposed where
there was no applicable Guideline. Together, these cases account for about 16.7% of
18
[See the PROTECT Act, page 86 n.28, supra—ED.]
sentencing appeals. See United States Sentencing Commission, 2002 Sourcebook of
Federal Sentencing Statistics 107 n. 1, 111 (at least 711 of 5,018 sentencing appeals
involved departures), 108 (at least 126 of 5,018 sentencing appeals involved the
imposition of a term of imprisonment after the revocation of supervised release). That is
why we think it fair … to assume judicial familiarity with a “reasonableness” standard.
And that is why we believe that appellate judges will prove capable of facing with greater
equanimity than would Justice Scalia what he calls the “daunting prospect,” of applying
such a standard across the board.
Neither do we share Justice Scalia’s belief that use of a reasonableness standard
“will produce a discordant symphony” leading to “excessive sentencing disparities,” and
“wreak havoc” on the judicial system. The Sentencing Commission will continue to
collect and study appellate court decisionmaking. It will continue to modify its
Guidelines in light of what it learns, thereby encouraging what it finds to be better
sentencing practices. It will thereby promote uniformity in the sentencing process.
Finally, the Act without its “mandatory” provision and related language remains
consistent with Congress’ initial and basic sentencing intent. Congress sought to “provide
certainty and fairness in meeting the purposes of sentencing, [while] avoiding
unwarranted sentencing disparities … [and] maintaining sufficient flexibility to permit
individualized sentences when warranted.” 28 U.S.C. § 991(b)(1)(B); see also USSG
§1A1.1, application note (explaining that Congress sought to achieve “honesty,”
“uniformity,” and “proportionality” in sentencing (emphases deleted)). The system
remaining after excision, while lacking the mandatory features that Congress enacted,
retains other features that help to further these objectives.
As we have said, the Sentencing Commission remains in place, writing
Guidelines, collecting information about actual district court sentencing decisions,
undertaking research, and revising the Guidelines accordingly. See 28 U.S.C. A. §994.
The district courts, while not bound to apply the Guidelines, must consult those
Guidelines and take them into account when sentencing. See 18 U.S.C. A. §§3553(a)(4),
(5). The courts of appeals review sentencing decisions for unreasonableness. These
features of the remaining system, while not the system Congress enacted, nonetheless
continue to move sentencing in Congress’ preferred direction, helping to avoid excessive
sentencing disparities while maintaining flexibility sufficient to individualize sentences
where necessary.…
Notes and Questions
1. Though the implications of Blakely and Booker remain uncertain and
potentially vast, for the purposes of the Federal Sentencing Guidelines, two key questions
arise. First, is making the Guidelines “advisory” a plausible compromise or a
contradiction of purpose.
2. If Congress seeks to revise federal sentencing to comply with Booker, what
might or should it do?
 3. Booker update: Eighteen months after Booker, we still do not know how
Congress will rework federal sentencing. And even in the direct application of Booker,
many complex procedural issues remain to be decided, probably by the Supreme Court
itself. These issues, outside the purview of this book, include such questions as
retroactive application and defendants’ waiver of potential Booker rights for not having
raised Sixth Amendment claims in their own cases. But in terms of the effect of Booker
so far on actual sentencing, the results have been less dramatic than many foresaw. The
following conclusions from the Government’s own report on Booker19 indicates that
while practices vary around the country, federal judges, on the whole. have been cautious
in diverging too far from what would have been guidelines sentences anyway. Thus, the
mix of uniformity and non-uniformity of pre-Booker sentences has not changed in any
distinct or drastic way.
--The majority of federal cases continue to be sentenced in conformance with the
sentencing guidelines. National data show that when within-range sentences and
government-sponsored, below-range sentences are combined, the rate of sentencing in
conformance with the sentencing guidelines is 85.9 percent. This conformance rate
remained stable throughout the year that followed Booker. The conformance rate in the
pre-PROTECT Act period was 90.6 percent. The conformance rate in the post-
PROTECT Act period was 93.7 percent.
−−The severity of sentences imposed has not changed substantially across time.
The average sentence length after Booker has increased.

−−With respect to within-range sentences, patterns for selecting the point at

which to sentence within the range are unchanged after Booker. Approximately 60
percent
of within-range sentences are still imposed at the minimum, or bottom, of the
applicable guideline range.

−−The rate of imposition of sentences of imprisonment has not decreased.

Offenders are still being incarcerated in the vast majority of cases.

−−The rate of imposition of above-range sentences doubled to a rate of 1.6

percent
after Booker.

−−The rate of government-sponsored, below-range sentences has increased

slightly
after Booker to a rate of 23.7 percent, with substantial assistance departures
accounting for 14.4 percent, Early Disposition Program departures accounting for
6.7 percent, and other government-sponsored downward departures accounting
for 2.6 percent.

19
United States Sentencing Commission, Final Report on the Impact of United States v. Booker on Federal
Sentencing vi-ix (March 2006).
 −−The rate of imposition of non-government-sponsored, below-range sentences
has increased after Booker to a rate of 12.5 percent.

−−In approximately two-thirds of cases involving non-government-sponsored,

below-range sentences, the extent of the reductions granted are less than 40
percent below the minimum of the range. Courts have granted small sentence
reductions, of 9 percent or less, at a higher rate after Booker than before. Courts
have granted 100 percent sentence reductions, to probation, at a lower rate after
Booker than before.

−−The imposition of non-government-sponsored, below-range sentences often is

accompanied by a citation to Booker or factors under 18 U.S.C. § 3553(a).
−−The use of guideline departure reasons remains prevalent in many cases involving
the imposition of non-government-sponsored, below-range sentences, including
those citing Booker or factors under 18 U.S.C. § 3553(a).

−−Multivariate analysis indicates that four factors associated with the decision to
impose a below-range sentence are different after Booker but not before: the
application of a mandatory minimum sentence, criminal history points, career
offender status, and citizenship. However, most factors associated with this
decision are the same after Booker....

−−The regional differences in sentencing practices that existed before Booker

continue to exist. There are varying rates of sentencing in conformance with the
guidelines reported by the twelve circuits. Consistent with the national trend,
rates of imposition of within-range sentences decreased for each of the twelve
circuits following Booker.

−−Fifty-two of the 94 districts, or 55 percent, have rates of imposition of within-

range sentences at or above the national average of 62.2 percent. Forty-two districts have
rates of imposition of within-range sentences below the national average. In 34 of these
42 districts, the rates of imposition of government sponsored, below-range sentences
exceed the rates of imposition of other below-range sentences.

−−Multivariate analysis conducted on post-Booker data reveals that male

offenders
continue to be associated with higher sentences than female offenders. Such an
association is found every year from 1999 through the post-Booker period.
Associations between demographic factors and sentence length should be viewed
with caution because there are unmeasured factors, such as violent criminal
history or bail decisions, statistically associated with demographic factors that the
analysis may not take into account.

−−Multivariate analysis conducted on post-Booker data reveals that black

offenders are associated with sentences that are 4.9 percent higher than white offenders.
Such an association was not found in the post-PROTECT Act period but did
appear in 4 of the 7 time periods analyzed from 1999 through the post-Booker
period.

−−Multivariate analysis conducted on post-Booker data reveals that offenders of

“other” races (mostly Native American offenders) are associated with sentences
that are 10.8 percent higher than white offenders. This association also was found
in 2 of the 7 time periods from 1999 through the post-Booker period.

−−Multivariate analysis conducted on post-Booker data reveals that there is no

statistical difference between the sentence length of Hispanic offenders and the
sentence length of white offenders.

Chapter 2 – The Criminal Act

Page 111 – Add after Note 4:

Location of Constructive Possession. When the suspect and the drugs are in
different locations, where is the constructive possession? On the person or with the
drugs? The New Jersey Supreme Court faced this question in State v. Lewis, 886 A.2d
643 (N.J. 2005). The defendant was convicted of possessing cocaine with intent to
distribute within 500 feet of a public park. The cocaine was discovered outside of the
500 feet zone at the time of the arrest, but the defendant was apprehended within the 500
feet zone distributing marijuana and was seen moving back and forth from the location of
the cocaine to the place where he was arrested. On appeal the defendant challenged his
conviction on the grounds that the state did not present any evidence that he possessed
cocaine in the drug-free zone (he did not challenge the less serious marijuana and non-
drug-zone cocaine possession convictions).
[W]e reject defendant's contention that a conviction under N.J.S.A. 2C:35-7.1
[drug-free zone statute] only may be sustained if the drugs are actually located within the
park zone. We do not read the statute to be so limited. The Legislature did not restrict the
reach of the statute to those who physically possess the drugs within the zone. The plain
language of N.J.S.A. 3C:35-7.1 instructs that any person who violates N.J.S.A. 2C:35-5
[cocaine possession statute] “while in, on or within 500 feet” of a public park is guilty of
a second-degree crime. That is, the declaration that a person possessing drugs with the
intent to distribute “while in, on or within” a park zone will be subject to greater
punishment demonstrates that the Legislature concentrated on the person's location.

Moreover, the statute does not limit the type of possession-actual or

constructive-that qualifies, nor does it expressly require that the drugs possessed by
defendant be in, on, or within 500 feet of the public area. Our jurisprudence recognizes
that possession may be actual or constructive. We find nothing in the plain language or
the history of the statute that would lead us to conclude that the Legislature sought to
 limit the statute to actual possession of the drugs in the park zone. We conclude that a
defendant who conducts a portion of a scheme to distribute drugs while in, on, or within
500 feet of a public park violates N.J.S.A. 2C:37-7.1, whether the drugs are actually
possessed on the person or the drugs are constructively possessed and located outside the
park zone.

In our view, a contrary result would influence drug dealers to distribute

controlled dangerous substances within a school or park zone, but to maintain their stash
of drugs outside the zone. Surely, the Legislature did not intend that type of conduct to
escape the harsher penalties for drug activity within a park zone or a school zone.

The State concedes, and we agree, that the result we reach does not preclude a
defendant from alleging that the drugs recovered outside the park zone lacked a sufficient
nexus to the park zone to constitute a violation pursuant to N.J.S.A. 2C:35-7.1a. There
must be some connection between the drugs and the zone to permit a reasonable inference
that defendant constructively possessed the drugs with intent to distribute them within the
drug-free zone. Such a nexus is not limited by the location of the drugs, although the
inference to be drawn may be stronger the closer the drugs are to the zone. In any event, a
defendant's constructive possession of a drug must bear some direct relationship to the
drug-free zone and not be so divorced of any nexus that he or she cannot be fairly said to
have violated N.J.S.A. 2C:35-7.1.

For example, a person could constructively possess drugs in his apartment one
mile away. However, if he goes to a public park or a school zone to exercise, there is not
an obvious connection between the constructive possession of the drugs in his apartment
and his presence within the zone. On the other hand, the nexus exists if the defendant
conspires or attempts to distribute or sell drugs within the zone, even if the drugs are not
within the zone and delivery is intended outside the zone.

Here, there was evidence that defendant, on two occasions, met with a purchaser
in the park zone, walked to his stash location outside the zone, and returned to complete
the transaction. The kind of drug sold in the first transaction was unknown, while in the
second transaction the drug was marijuana. The evidence that the nearby stash contained
both marijuana and cocaine supported the reasonable inference that, depending on the
drug requested by the buyer, defendant intended to distribute cocaine and marijuana
within the park zone.

Further, the State presented the expert testimony of Investigator Slusser that
someone conducting sales from a stash of the quantity in this matter possessed those
drugs for distribution. The physical and temporal proximity of defendant's cocaine and
marijuana stash were sufficient for the jury to conclude that defendant constructively
possessed the cocaine while in the park zone. Therefore, we conclude that defendant, who
sold drugs in a park zone from a stash located outside that zone, violated N.J.S.A. 2C:37-
7.1a.

Page 111 – Add at end of Note 5:

Duration of possession. The same issue was addressed in the United States v.
Teemer, 394 F. 3d 59 (1st Cir. 2005), involving the charge of constructive possession of a
weapon by an ex-felon. Teemer, an ex-felon, was a passenger in a hatchback, with an
AK-47 assault weapon in the cargo area. He admitted having earlier handled the gun,
removing it from a couch in the driver’s apartment in order to sit down. According to the
Court of Appeals:
 At the jury-instruction stage, Teemer sought an instruction entitled
“Transitory Possession as a Defense” stating:

Evidence may be presented to you regarding transitory possession.

The evidence may tend to show that the Defendant was touching
the firearm merely to move it out of his way. You are instructed
that if a person has possession of a firearm under certain
circumstances which indicate that he did not have the intent to do
the acts which constitute the possession of a firearm, that person
would not be guilty of the offense charged. If the actual
possession of the firearm by the Defendant was fleeting without
the intent to exercise control, then this defense is applicable. This
defense is based upon the definitions of actual and constructive
possession, which I gave you earlier. If you find beyond a
reasonable doubt that the Defendant did not have the specific
intent to have a possessory interest in the firearm and that he did
have a "transitory" possession of the firearm, then you must find
him not guilty.

The district court declined to give this instruction, providing instead a

standard instruction on “possession”…. The key language, following a
statement that possession must be done “voluntarily and intentionally, and
not because of any mistake or accident,” was as follows:

And I instruct you that the term possess means to exercise

authority, dominion, or control over something. It is not
necessarily the same as legal ownership. The law recognizes
different kinds of possession. Possession includes both actual and
constructive possession. A person who has direct physical control
of an object on or around his or her person is then said to be in
actual possession of it.

And I instruct you that a person who is not in actual possession,

but who has both the power and the intention to exercise control
over something or an object is in constructive possession of it.

The jury convicted Teemer, who was then sentenced to 41 months’

imprisonment. He has now appealed, claiming that … his proposed
instruction on “transitory” possession should have been given.

The district court was correct not to give this proposed instruction. It
could easily exculpate a bank robber who, after the robbery and on
request, picked up another bank robber's gun from the table and handed it
to him. There are plenty of other situations in which holding a weapon,
even briefly and without an intent to retain it, would nonetheless be
unacceptable for a former felon. Indeed, a number of our cases say, in the
context of both guns and drugs, that the briefest moment of possession
may be enough for a conviction.

This does not mean that brevity or any other circumstance must be
ignored by a jury in gauging whether intentional possession occurred--
merely that brevity alone does not preclude conviction. Teemer's
approach, by contrast, aims to make brevity controlling, at least where the
defendant does not intend to keep the weapon permanently. But if the
conduct to which Teemer confessed were clearly not a crime, we would be
very uncomfortable letting matters stand.…

With this statute … there are circumstances that arguably come within
the letter of the law but in which conviction would be unjust-- arguably so
in some cases, and clearly so in others. Consider if a schoolboy came
home with a loaded gun and his ex-felon father took it from him, put it in
drawer, and called the police; or if a mother--who need not be a felon to
be charged with drug possession--threw into the trash an envelope of
marijuana found in her daughter's bureau drawer.

The common law has created, and federal criminal law has
absorbed, “justification” defenses of necessity and duress, but neither
defense would encompass the mother, and the father might well have
problems with the necessity defense, especially if the facts were slightly
less menacing. Most prosecutors and--failing that--most juries would
show good sense in such situations. But sometimes both safeguards fail.
No legislature can draft a generally framed statute that anticipates every
untoward application and plausible exception.

Judges may and often do fill such gaps with glosses and limitations
conveyed in jury instructions, but every such gloss imports potential
problems of its own. We have already pointed out how easily Teemer’s
proposed instruction could be misused; and in an earlier case, this court
rejected a general “good purpose” defense advanced by an ex-felon (there,
the felon had taken a gun from a friend, allegedly to prevent a suicide, but
had then stored the weapon for several weeks). United States v. Meade,
110 F.3d 190, 201-03 (1st Cir. 1997)….

In this case, the instruction did not say that merely to touch the AK-47
constituted a crime. The instruction said that "possession" required the
defendant to "exercise authority, dominion, or control"--giving the jury
latitude to employ its judgment and to conclude that moving the weapon
did not constitute possession. The closing argument for the defense
pressed just such an argument, but the conviction is no surprise: riding
around in a car with an AK-47 is a risky business for an ex-felon.…
 Relying upon the jury is reasonable, for common sense is the
touchstone in situations of innocent contact, and the occasions that might
warrant leniency are myriad and hard to cabin in advance. Assuming that
Teemer moved the gun to sit down and did nothing else (i.e., had never
carried it into the house or ridden with it deliberately in reach), we think
that the jury was still entitled--but not required--to conclude that he had
broken the law. If we were to craft a mandatory safe harbor, it would not
include this case.

No record exists in this circuit of abusive indictments for innocent

contact, let alone convictions, that would warrant an effort to craft a
general limitation. And, so long as judges leave juries the kind of latitude
that the trial judge sensibly did in this case, it is unlikely that juries will be
foolish enough to convict in cases like the schoolboy or bureau-drawer
incidents set forth above. If the worst happens, the courts are competent
to deal with such cases individually or in gross when they arrive.

Do you find the court’s solution—a vague instruction on constructive possession,

affording the jury discretion—an adequate solution to the problem that there are cases
“within the letter of the law” in which conviction would be “unjust?” Are cases of
“constructive possession” in fact within the “letter of the law?” If so, why are they
“constructive?”

Page 142 – Add at end of Note 3:

A number of courts have reached the opposite result, holding that the
contemporary meaning of “human being” includes a viable fetus. A recent example is
Commonwealth v. Morris, 142 S.W. 3d 654 (Ky. 2004). In overruling its earlier decision
in Hollis v. Commonwealth, 652 S.W.2d 61 (Ky. 1983), the Kentucky Supreme Court
emphasized that the Kentucky Penal Code dates from 1975 and argued that evidence as
to the legislature’s intent with respect to the common law’s born alive rule was quite
uncertain. Then it reasoned as follows:

Medical science has now advanced to the stage that the viability,
health, and cause of a fetus’s death can be determined. Thus, the rationale
for the “born alive” rule no longer exists. Specifically, there is no need for
it in the case sub judice because the post-mortem examination clearly
proved that the unborn victim was a viable fetus who would have been
born alive and completely normal except for the fatal brain injury
sustained in the vehicular collision caused by Appellee. To quote Justice
Holmes:

It is revolting to have no better reason for a rule of law than that so

it was laid down in the time of Henry IV. It is still more revolting
if the grounds upon which it was laid down have vanished long
 since, and the rule simply persists from blind imitation of the past.
Oliver Wendell Holmes, The Path of the Law, 10 Harv. L.Rev.
457, 469 (1896-97).

The more enlightened cases have departed from the “born alive” rule
in favor of recognizing that a viable fetus can be the victim of a homicide.
See, e.g., Commonwealth v. Cass, 467 N.E.2d 1324, 1325-26 (Mass.
1984) (viable fetus is a “person” under a vehicular homicide statute
criminalizing causing the death of "another person"); Hughes v. State, 868
P. 2d 730 (Okla. Crim. App. 1994) (viable fetus is a “human being” under
statute defining homicide as the killing of a “human being”); State v.
Horne, 319 S.E.2d 703, 704 (S.C. 1984) (viable fetus is a “person” within
statute defining murder as the killing of “any person”). Viability was
recognized in Roe v. Wade, 410 U.S. 113, 147 (1973), as the
“compelling” point at which “the fetus then presumably has the capability
of meaningful life outside the mother's womb,” and the earliest time at
which a state may proscribe consensual abortions. Id. at 163-64. It is also
the point at which the killing of an unborn child gives rise to a civil cause
of action for wrongful death on behalf of the unborn child's estate. KRS
411.130.…

It is inherently illogical to recognize a viable fetus as a human being

whose estate can sue for wrongful death and who cannot be consensually
aborted except to preserve the life or health of the mother, but not as a
human being whose life can be nonconsensually terminated without
criminal consequences. Thus, we overrule Hollis and hold that a viable
fetus is a “human being” for purposes of KRS 500.080(12) and the KRS
Chapter 507 homicide statutes.

The court, however, held that this change in the construction of the statute could
not be applied retroactively against the defendant, who had culpably caused the death of
a viable fetus in an automotive accident. Citing Bouie and Rogers, the court reasoned
that such application would violate due process.

Page 155 – Add after Note 10:

11. Overbreadth. Closely related to the proscription of vague offenses is the

proscription of those that are clear enough, but overbroad, so that the legislature counts
on police and prosecutorial discretion to “pick” the right cases to prosecute. As with
vagueness, this doctrine is most likely to be invoked where the broadly proscribed
conduct includes constitutionally protected activities like speech. The overbreadth
doctrine is illustrated by the recent New Hampshire Supreme Court case of State v.
Brobst, 151 N.H. 420 (2004):

The State appeals the order of the Superior Court granting the
defendant's motion to dismiss a charge of harassment, see RSA 644:4, I(a)
(1996), because the court determined that the statute under which the
defendant, Michael B. Brobst, was charged is unconstitutionally
overbroad in violation of his rights under Part I, Article 22 of the New
Hampshire Constitution and the First and Fourteenth Amendments of the
Federal Constitution. We affirm.

…On December 29, 2002, the defendant made a number of telephone

calls to the house where the victim was caring for her younger siblings.
On his sixth and final call, the defendant allegedly told her, "[Y]ou’re a f--
-ing b--- and you’re going to be a slut just like your mother."

Based upon this call, the defendant was charged with harassment in
violation of RSA 644:4, I(a), which provides that:

A person is guilty of a misdemeanor, and subject to

prosecution in the jurisdiction where the communication originated
or was received, if such person:

(a) Makes a telephone call, whether or not a conversation

ensues, with a purpose to annoy or alarm another....

The defendant filed a motion to dismiss arguing that the statute was
unconstitutionally overbroad…. The trial court granted the defendant's
motion…. The trial court reasoned, “There are numerous instances where
an individual may telephone another with a purpose to annoy [or alarm]
that person to emphasize an opinion or an idea, or to prompt a desired
course of action.” The court concluded, “RSA 644:4, I(a) regulates not
only harassment, but these, and other, legitimate communications.” The
State argues that RSA 644:4, I(a) is not overbroad because it "does not
infringe upon a right to free speech, but rather, regulates conduct and
protects the recipient's right to be left alone."

The purpose of the overbreadth doctrine is to protect those persons

who, although their speech or conduct is constitutionally protected, “may
well refrain from exercising their rights for fear of criminal sanctions by a
statute susceptible of application to protected expression.” New York v.
Ferber, 458 U.S. 747, 768, (1982) [T]he United States Supreme Court
has held that the overbreadth of a statute must be real and substantial,
judged in relation to the statute’s plainly legitimate sweep. …The
substantial overbreadth doctrine applies to constitutional challenges of
statutes that prohibit conduct, as well as challenges to those statutes
prohibiting “pure speech” and “conduct plus speech.” People v. Hickman,
988 P.2d 628, 635 (Colo. 1999). If a statute is found to be substantially
overbroad, “the statute must be invalidated unless the court can supply a
limiting construction or partial invalidation that narrows the scope of the
 statute to constitutionally acceptable applications.” Id.

In People v. Klick, the Illinois Supreme Court struck down, as facially

overbroad, a virtually identical statute…. People v. Klick, 362 N.E.2d
329, 330 (Ill. 1977). The court found that “[b]y making the call itself the
criminal act--not the language used or the method employed to harass--the
legislature ha[d] attempted to avoid infringing on protected speech.” Id. at
331. The court held, however, that “the means they have chosen to reach
unprotected conduct sweeps too broadly, and, in fact, makes criminal
conduct protected by the first amendment, i.e., the right to communicate to
another in a reasonable manner.” Id. The court stated:

We do not suggest that the first amendment gives one the unlimited right
to annoy another, by speech or otherwise. There are, however, many
instances when, without breaching the peace, one may communicate with
another with the possible intention of causing a slight annoyance in order
to emphasize an idea or opinion, or to prompt a desired course of action
that one is legitimately entitled to seek. Conceivably, this section could
make criminal a single telephone call made by a consumer who wishes to
express his dissatisfaction over the performance of a product or service; a
call by a businessman disturbed with another’s failure to perform a
contractual obligation; by an irate citizen, perturbed with the state of
public affairs, who desires to express his opinion to a public official; or
by an individual bickering over family matters. First amendment
protection is not limited to amiable communications. Id. at 331-32
(emphasis added).

We agree with the Illinois Supreme Court, and also find that the
prohibition of all telephone calls placed with the intent to alarm
encompasses too large an area of protected speech….

Certainly the State has a legitimate interest in protecting citizens from

the effects of certain types of annoying or alarming telephone calls, such
as the “terror caused to an unsuspecting person when he or she answers
the telephone, perhaps late at night, to hear nothing but a tirade of threats,
curses, and obscenities, or, equally frightening, to hear only heavy
breathing or groaning.” Id. at 331.… I(a) is not, however, limited in scope
to these types of unreasonable, unwelcome and unwarranted activities or
intrusions. RSA 644:4, I(a) applies to any call made to anyone, anywhere,
at any time, whether or not conversation ensues, if the call is placed
merely with the intent to annoy or alarm another, which means that the act
constituting the offense is complete when the call is made, regardless of
the character of conduct that ensues.… Affirmed.

Chapter 3 – The Guilty Mind

Page 170 – Add at end of Note 2:

Reading in a culpability requirement. The Antiterrorism and Effective Death

Penalty Act criminalizes knowingly providing material support or resources to an
organization designated a “Foreign Terrorist Organization” by the United States
Government (18 U.S.C.A. §2339B(a)(1)). Several circuits have considered constitutional
challenges to this provision based on due process, overbreadth, vagueness, and the first
amendment right to freedom of association. These arguments are all premised on the
possibility that designated terrorist organization may engage in both criminal conduct and
in constitutionally protected political expression. One circuit has sought to cure these
constitutional concerns by interpreting the statute to require culpability with respect to
the material support’s facilitative effect on terrorism:

UNITED STATES v. AL-ARIAN

United States District Court, Middle District of Florida
329 F. Supp. 2d 1294 (2004)

BACKGROUND

This is a criminal action against alleged members of the Palestinian Islamic Jihad-
Shiqaqi Faction (the “PIJ”) who purportedly operated and directed fundraising and other
organizational activities in the United States for almost twenty years. The PIJ is a
foreign organization that uses violence, principally suicide bombings, and threats of
violence to pressure Israel to cede territory to the Palestinian people. The PIJ has been
designated a foreign terrorist organization (“FTO”) and a specially designated terrorist
(“SDT”) by the United States government. Both designations create potential legal
consequences (including criminal liability) to those people in the United States that
support or are associated with the PIJ.

On February 19, 2003, the government indicted eight defendants in a 50 count

indictment that included counts for …conspiracy to provide material support to or for the
benefit of foreign terrorists… . The four Defendants that are before this Court moved to
dismiss the Indictment, raising a variety of constitutional and procedural issues. …The
parties’ briefs largely concentrated on the constitutionality of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”).… During oral argument, this Court
questioned government’s counsel at length on the mens rea required to support a
conviction under Section 2339B of AEDPA. The government took the position that the
mens rea necessary to support a conviction under Section 2339B was proof that a:
“defendant knew of the designation of the organization as a foreign terrorist organization
or the defendant knew that the organization engaged in or had engaged in terrorist
activity ....” The government argued that the presence of a mens rea requirement in
AEDPA avoided or cured the constitutional problems raised by Defendants.

On March 12, 2004, this Court … denied almost all of Defendants’ motions to
dismiss, including Defendants’ motions to declare AEDPA unconstitutional. As a
prerequisite to dealing with the constitutionality of AEDPA, this Court interpreted the
mens rea required to support a conviction under Section 2339B(a)(1) as requiring the
government to prove beyond a reasonable doubt that a defendant knew (had a specific
intent) that the support would further the illegal activities of a FTO. On April 26, 2004,
the government sought reconsideration of this specific intent requirement.…

II. DISCUSSION …
STATUTORY INTERPRETATION

In its prior Order, the question of statutory interpretation before this Court was
how to construe Section 2339B(a)(1), which provides that persons who:

knowingly provide[ ] material support or resources to a foreign terrorist

organization, or attempt[ ] or conspire[ ] to do so, shall be fined under this
title or imprisoned not more than 15 years, or both, and if the death of any
person results, shall be imprisoned for any term of years or for life.

There are at least three logical constructions of the level of knowledge required by this
statute:

(1) knowledge simply that a person is providing something defined as

“material support” in the statute;
(2) knowledge, in addition to the first requirement, that the recipient is a
FTO or is an entity that engaged in the type of terrorist activity that would
lead to designation as a FTO; or
(3) knowledge, in addition to the previous two requirements, that the
recipient could or would utilize the support to further the illegal activities
of the entity.

The government concedes that the first construction violates the Supreme Court's
decision in United States v. X-Citement Video, Inc., 513 U.S. 64 (1994). It urges that
this Court reconsider its prior ruling, adopt the second construction, and reject the third
construction (the construction that this Court previously chose). Central to this Court's
adoption of the third construction and largely unaddressed in the instant motion is the
canon of statutory interpretation that courts are to interpret statutes in a manner that
avoids constitutional difficulty.

In its prior Order, this Court avoided … squarely addressing the constitutionality
of the government's proposed construction. Instead, this Court stated the constitutional
concerns it had with the government's proposed construction and analyzed the statute to
see if an alternative construction existed that avoided those constitutional concerns. By
this Court resolving those constitutional concerns in the manner that it did, this Court
avoided doing grievous harm to Section 2339B by declaring all or parts of it
unconstitutional. The practical result of this Court's construction, compared to the
construction and results reached by three other courts that declared parts of Section
2339B unconstitutional, is that the government continues to have the ability to stop
certain kinds of support from flowing to FTOs.

B. PERSONAL GUILT

The government first argues that it was unnecessary for this Court to interpret
Section 2339B(a)(1) as implying a specific intent requirement in order to satisfy the due
process requirements of personal guilt. The government is correct to start with the
Supreme Court's seminal opinion in Scales v. United States, 367 U.S. 203 (1961). This
Court disagrees, however, that Scales and its progeny require any different result than
this Court reached in its prior order.…

The bottom line of the government's argument is that in its opinion due process
personal guilt problems only arise in membership statutes and Section 2339B is not a
membership statute. The government relies heavily on the fact that the Smith Act, the act
under review in Scales, was a membership statute. Indeed, this Court does not quarrel
with the government that the Supreme Court in Scales held that “[m]embership, without
more, in an organization engaged in illegal advocacy” is insufficient to justify individual
criminal liability. Id. at 225. Scales is not so narrowly worded, however, to be limited to
just membership statutes. The Supreme Court's opening sentence in its Fifth Amendment
section states a much broader principle that is expressly not limited to membership
statutes. In that section, the Court stated:

In our jurisprudence guilt is personal, and when imposition of punishment

on a status or on conduct can only be justified by reference to the
relationship of that status or conduct to other concededly criminal activity
... that relationship must be sufficiently substantial to satisfy the concept
of personal guilt in order to withstand attack under the Due Process Clause
of the Fifth Amendment. 367 U.S. at 224-25 (emphasis added).…

Consider the following hypothetical example that demonstrates how criminal

liability and punishment for conduct are intertwined with the criminal conduct of others
under Section 2339B(a)(1). A and B are members of a FTO. The FTO exists to oppose
and remove (by violent and non-violent means) a foreign government. A opposes the
FTO’s use of violent means to accomplish its goals. B has no problem with the groups
use of violence and wants to raise funds for weapons to further that interest. B travels to
where A lives to raise money. A does not know that B is coming to fundraise on behalf of
the FTO. A picks B up at the airport. A allows B to stay in his home, use his telephone,
and use his house to entertain other FTO members while A is at work. B fundraises
while A is gone. Under the government's construction of Section 2339B(a)(1), A is
criminally liable for providing transportation, lodging, communications equipment, and
facilities, and, if the money raised results in the death of any person, he will face life in
prison. A’s criminal liability is inextricably connected to his association with B and the
FTO. Further, the level of A’s criminal punishment is totally dependent on B's and other
members of the FTO’s criminal conduct.
 In such circumstances, a Fifth Amendment due process personal guilt concern is
suggested, because criminal liability and punishment is being justified and tied to the
criminal activities of others. This Court is to avoid that constitutional concern and
concludes that requiring a specific intent to further the illegal activities of a FTO satisfies
this concern.

C. VAGUENESS

In its prior order, this Court [used] hypothetical examples …to illustrate how the
statutory definition for “material support” could be unconstitutionally vague. The
government argues that it was unnecessary for this Court to consider hypothetical
examples because as applied to these Defendants’ conduct Section 2339B is not
unconstitutionally vague. However, it should have been clear from this Court's prior
opinion that the constitutional concern that this Court identified was based on a facial,
and not an as applied, vagueness challenge to Section 2339B.

In response to a facial challenge, the government argues that the statute is

constitutional because it is constitutional in a vast number of circumstances. The
government relies on the general rule that a challenger raising a facial constitutional
challenge must prove that “no set of circumstances exist under which the Act would be
valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).… However, under a second
standard, a court can invalidate a statute even if it has some valid applications. In order
to be unconstitutional under the second standard, the statute must reach a substantial
amount of constitutionally protected conduct and fail to provide either actual notice or
allow for discriminatory or arbitrary enforcement. See, e.g., Kolender v. Lawson, 461
U.S. 352, 357-358 n. 8(1983).

…[S]everal factors are important to the Supreme Court in determining which

standard applies: (a) whether the ordinance is a criminal law; (b) whether it regulates
business behavior or infringes on constitutional rights; and (c) whether the statute
contains a scienter requirement.… Section 2339B is a criminal statute that potentially
impinges on substantial amounts of First Amendment activity. This Court's previous
hypotheticals were designed to show the broad and wide reach of Section 2339B to
constitutionally protected conduct. Without a specific intent requirement, this Court is
concerned that ordinary people could not understand that innocuous conduct … would be
prohibited by the statute.…

Because a constitutional concern exists on whether Section 2339B is

unconstitutionally vague, this Court is to avoid that constitutional concern. Requiring a
specific intent to further the illegal activities of a FTO satisfies that concern.
D. FREEDOM OF ASSOCIATION

Finally, if this Court granted the government’s motion, the government's

proposed construction would change this Court's freedom of association analysis. In its
prior Order, this Court concluded that, as construed, Section 2339B(a)(1) is constitutional
because it is closely drawn to further a sufficiently important government interest.
Important in this Court's analysis on the closely drawn prong was that the statute had
been construed to contain a specific intent requirement that only impaired the illegal aims
of a FTO (in this case the PIJ).…

In Scales v. United States, the Supreme Court analyzed the constitutionality of the
membership clause in the Smith Act that made it unlawful to have a knowing
membership in any organization that advocated the violent overthrow of the United
States government. 367 U.S. 203 (1961). Before reaching the constitutional questions
raised by the parties, the Court construed the clause and implied a specific intent
requirement. In determining that the provision was constitutional under the First
Amendment (freedom of association), this implied requirement was critical to the Court's
analysis that the clause was constitutional. See id. at 229….

While AEDPA and Section 2339B does not directly bar membership in a FTO, it
does impose …dramatic indirect restrictions … on those who are associated with or wish
to associate with FTOs. It prohibits all funding and all tangible support of any kind with
extremely limited exceptions for medicine and religious materials. Based on this blanket
broad prohibition that has the practical effect of impinging the right of freedom of
association, this Court has grave concerns about the constitutionality of Section 2339B.
Requiring a specific intent to further the illegal activities of a FTO relieves this concern.

III. CONCLUSION

This Court again would state that implying a specific intent requirement does not,
will not, and should not hamper the government’s anti-terrorism efforts. …Instead, this
Court is attempting to construe Section 2339B(a)(1) in a manner that avoids
constitutional infirmity.

Notes and Questions

1. Are you persuaded by the court’s argument that offenders have no “personal
guilt” or notice of the illegality of their conduct if they do not know their material
support of a terrorist organization is facilitating its illegal activities? Shouldn’t it suffice
to show that the defendant knew the organization was designated, or was in fact, a
terrorist organization? Could not such a statute be analogized to a regulatory statute
prohibiting the knowing sale of a firearm to an ex-felon, regardless of any expectation
that the ex-felon would use the firearm to commit a crime? Or does the offense of aiding
a terrorist organization require more culpability because first amendment freedoms are
involved?
 2. Other courts have ruled differently on the mental element of the offense of
providing material support to foreign terrorist organizations. In United States v.
Hammoud, 381 F. 3d 316 (4th 2004) the court interpreted Section 2339B(a)(1) not to
require an intent to support illegal or terrorist activities, and held that the first amendment
right to freedom of association did not require such intent either, “because § 2339B does
not prohibit mere association; it prohibits the conduct of providing material support to a
designated FTO. Therefore, cases regarding mere association with an organization do not
control.” The court continued:

there can be no question that the government has a substantial interest in

curbing the spread of international terrorism … [and that this interestis
unrelated to the suppression of free expression. Hammoud is free to
advocate in favor of Hizballah or its political objectives-- § 2339B does
not target such advocacy. …[F]inally, the incidental effect on expression
caused by § 2339B is no greater than necessary. In enacting § 2339B
…Congress explicitly found that "foreign organizations that engage in
terrorist activity are so tainted by their criminal conduct that any
contribution to such an organization facilitates that conduct." AEDPA §
301(a)(7). As the Ninth Circuit reasoned,

[i]t follows that all material support given to [foreign terrorist]

organizations aids their unlawful goals. Indeed, ... terrorist
organizations do not maintain open books. Therefore, when
someone makes a donation to them, there is no way to tell how the
donation is used. Further, ... even contributions earmarked for
peaceful purposes can be used to give aid to the families of those
killed while carrying out terrorist acts, thus making the decision to
engage in terrorism more attractive. More fundamentally, money
is fungible; giving support intended to aid an organization's
peaceful activities frees up resources that can be used for terrorist
acts.

Humanitarian Law Project v. Reno, 205 F.3d 1130, 1136 (9th Cir. 2000)
(footnote omitted). In light of this reasoning, the prohibition on material
support is adequately tailored to the interest served and does not suppress
more speech than is necessary to further the Government's legitimate goal.
We therefore conclude that § 2339B does not infringe on the
constitutionally protected right of free association.

Page 197 – Add after Note 11:

The mens rea of “crimes of violence” under immigration law. In Leocal v.
Ashcroft, 543 U.S. 1 (2004), the Supreme Court held that that the category of “crime of
violence,” for which a legal resident alien of the United States could be deported by the
INS and which is also relevant for certain racketeering, bail/probation, and sentencing
laws, did not include drunk driving. The statute, 18 U.S.C. § 16(a), defines “crime of
violence” as “an offense that has as an element the use … of physical force against the
person or property of another,” and §16(b) defines it as “any other offense that is a felony
and that, by its nature, involves a substantial risk that physical force against the person or
property of another may be used in the course of committing the offense.”

The Court noted that the various drunk driving statutes around the nation either
require no mental state or specify negligence. It then noted that the language “use … of
physical force against” another’s person or property requires active employment. And
that while “one may, in theory, actively employ something in an accidental manner, it is
much less natural to say that a person actively employs physical force against another by
accident.” It concluded that a deportable crime of violence requires greater culpability
than “the merely accidental or negligent conduct involved in a DUI offense.” The Court
expressly reserved the question whether the mens rea of recklessness would suffice.

Since Leocal, circuits have addressed the question the Supreme Court left open:
the application of the “crime of violence” designation to crimes which involve a higher
mens rea than negligence. The Ninth Circuit has grouped gross negligence with
negligence under the Leocal principle, while the Third and Fourth Circuits have declined
to extend the definition of “crime of violence” to cover offenses committed recklessly.
Lara-Cazares v. Gonzales, 408 F.3d 1217 (9th Cir. 2005); Tran v. Gonzales, 414 F.3d
464 (3d Cir. 2005); Bejarano-Urrutia v. Gonzales, 413 F.3d 444 (4th Cir. 2005).

The Ninth Circuit has also addressed the “crime of violence” issue in the context
of statutory rape. If the premise of statutory rape is that a minor cannot consent and
therefore that any sex is forced sex, should it fall under the definition of “crime of
violence”? Do the circumstances surrounding the statutory rape matter? The Ninth
Circuit initially found that the defendant did commit a “crime of violence” when he
engaged in unlawful sexual intercourse with a person under the age of 18 who was more
than 3 years his junior (a felony). Valencia v. Gonzales, 406 F.3d 1154 (9th Cir. 2005).
Six months later, the court reversed its position and held that the defendant had not
committed a crime which necessitated the use of force and therefore was not guilty of a
“crime of violence.” The court said, “Since liability can attach even if the victim
voluntarily engages in sexual intercourse, [the offense] does not involve an act ‘against
the will’ of the victim. Furthermore, it has no element of restraint or other aggravating
factors that suggest the likely use of physical force in committing the offense.” Valencia
v. Gonzales, 431 F.3d 673, 676-77 (9th Cir. 2005). The court withdrew its late 2005 opinion and
replaced it with a third opinion which reached the same outcome by way of more extensive reasoning.

Th[e] lack of actual consent, rather than legal incapacity to consent, is the
‘touchstone’ of § 16(b) analysis . . . . [T]he full range of conduct proscribed by
[the statute] includes consensual sexual intercourse between a twenty-one-
year-old and a minor one day shy of eighteen. Since a minor of this age is
‘fully capable of freely and voluntarily consenting to sexual relations,’
Michael M v. Superior Court, 25 Cal.3d [608], 614 [(1979)], the minor's deemed
incapacity does not suggest a risk that force may be used in committing the offense.
Therefore, we hold that a violation of [the statute] does not, ‘by its nature, involve[ ] a
substantial risk that [violent] physical force against the person or property of another may
be used in the course of committing the offense.’ 18 U.S.C § 16(b). Accordingly, a
violation of 261.5(c) is not categorically a crime of violence under § 16(b).
Valencia v. Gonzales, 439 F.3d 1046, 1051-53 (9th Cir. 2006). Other courts have held
that statutory rape can only be considered a “crime of violence” when other aggravating
factors exist.

Page 226 – Add as Note 4:

4. Mistake of law and the mens rea of acting “corruptly.” Various federal statutes
dealing with obstruction of justice—including destroying or ordering others to destroy
potentially relevant evidence, require that the defendant have acted “corruptly.” The
courts have struggled over the meaning of that term and what it adds to normal men area
requirements, often suggesting that at the very least it may require proof of knowledge of
illegality. For a timely example, see Arthur Andersen v. United States, 544 U.S.696
(2005), excerpted later in this supplement, in a new note keyed to p. 822, below.

Page 235 – Add at end of Note 1:

Under Hendershott, both due process and wise policy require that the defense
may introduce insanity-focused evidence to negate the required mens rea, and many
states follow this principle. But the Supreme Court had now held that the states are not
required to do so by the federal constitution. In Clark v. Arizona, 548 U.S.__ (2006) the
Court held that because of the controversial, empirically uncertain, and often confusing
nature of expert evidence bearing on insanity, a state can constitutionally channel this
evidence wholly into an insanity defense on which he defendant bears the burden of
proof, to prevent it from distorting the regular mens rea issues. For a fuller discussion of
Clark, see the supplementary note keyed to page 593 below.

Chapter 6 – Unintentional Homicide

Page 381 – Add at end of Note 8, Seat belts and homicide:

In a nationwide effort to increase seatbelt use, the National Highway Traffic

Safety Administration (NHTSA) ran a series of mobilization efforts in 2006 to support
“Click It or Ticket” or “Buckle Up America” campaigns. States receive extra funding
from NHTSA if they adopt stricter safety belt laws, including more stringent regulations
for child restraint. Texas is the toughest state in terms of enforcement, with a fine of up to
$200 for no seat belt, while states such as Arizona, Missouri, South Carolina, and
Wisconsin have fines of only $10. All 50 states and the District of Columbia had adopted
seat belt laws by December 2005. According to the NHTSA, safety belt use went from 71
percent nationwide in 2000 to 82 percent in 2005.20

20
The National Highway Traffic Safety Administration (June 2006), at www.nhtsa.gov.
 So-called “primary enforcement” safety belt laws permit the police to stop a car
solely because of a seatbelt violation; “secondary enforcement” laws permit the police to
give a seatbelt violation ticket only after a traffic stop based on a more traditional driving
violation. Robert Strassburger, Vice President of the Safety & Harmonization Alliance of
Automobile Manufacturers, testified before the House Subcommittee on Commerce,
Trade, and Consumer Protection in March 2005 that primary enforcement law states have
seatbelt use rates approximately 11 percent higher than states with secondary
enforcement laws. After Congress spent $25 million to advertise “Click It or Ticket”
laws in 2004, Strassburger encouraged Congress to spend even more each year.21 Jeffrey
Runge, Administrator for the NHTSA, also testified before the Senate in April 2005 in
support of the nationwide campaign. Runge stressed the economic costs associated with
car crashes involving no seat belt use, arguing that traffic safety constitutes a public
health problem that is medically and socially costly but is easily remediable. “Wearing
safety belts is the single most effective step individuals can take to save their lives.
Safety belt use cuts the risk of death in a severe crash in half. If safety belt use were to
increase from the 2004 national average of 80 percent to 90 percent, nearly 2,700 lives
would be saved each year, and we would reduce economic costs by hundreds of millions
of dollars.”22

On the other hand, Prof. Walter E. Williams, a columnist for the Washington
Times and economist at George Mason University, has denounced Virginia’s “Click It or
Ticket” law as “a disgusting abuse of state power” that violates his “liberty to take risks
with [his] own life.” He also believes that “no human should be coerced by the state to
bear the medical expense, or any expense, for his fellow man,” and that “the forcible use
of one person to serve the purposes of another is morally offensive.”23 Others note the
irony that primary enforcement laws, by expanding the legitimate grounds for police
stops, might exacerbate the problem, of racial profiling based on pretextual traffic
enforcement.24

How does the state of research and public debate on seatbelt laws bear on
unintentional homicide doctrine?

9. Are the dangers of exposing children to airbags as great or as well-known as

the dangers of not putting them in seatbelts? The recent Tennessee Supreme Court case
of State v. Jones, 151 S.W. 3d 494 (Tenn. 2004), elaborates principles for determining
which safety risks amount to criminal negligence:

We granted this appeal to determine whether the evidence supported

the defendant's conviction for criminally negligent homicide in the death

21
Robert Strassburger, Reauthorization of the National Highway Traffic Safety Administration, Testimony
in front of the Subcommittee on Commerce, Trade, and Consumer Protection (March 2005). Reprinted at
http://energycommerce.house.gov.
22
Jeffrey Runge, Highway, Motor Carrier, and Hazardous Materials Transportation Safety, and
Transportation of Household Goods, Testimony before the Subcommittee on Surface Transportation (April
5, 2005). Reprinted at http://commerce.senate.gov.
23
Walter E. Williams, Click It or Ticket, The Washington Times, May 30, 2006.
24
Ryan Ferguson, ‘Click It or Ticket’ program designed to be abused, The Western Courier, June 15, 2006.
of her two-year-old son. The child was riding on the defendant's lap in the
front passenger seat of a rental car and was killed when the passenger-side
air bag deployed in a collision. The Court of Criminal Appeals upheld the
conviction, concluding that the evidence was sufficient to sustain the
jury's verdict…. After carefully reviewing the record and the evidence,
we conclude … that the evidence was insufficient to support the
conviction because the defendant's conduct did not constitute a gross
deviation from the standard of care. Accordingly, we reverse the
judgment of the Court of Criminal Appeals and dismiss the conviction.…

On November 9, 1998, defendant Latrece Jones, age eighteen, was

riding in the front passenger seat of a rented Chevrolet Cavalier in
Chattanooga, Tennessee. Her two-year-old son, Carlon Bowens, Jr., was
asleep in her lap. Carlon's aunt, Letitia Abernathy, had rented and was
driving the rental car; five children and one adult sat in the backseat. At
the intersection of Shallowford Road and Jersey Pike, another car failed to
yield the right of way to the rental car, causing a collision ("the accident").
Although the accident was not severe, the passenger-side air bag
deployed. The force with which the air bag struck Ms. Jones' son broke
his neck, killing him. No one else in the car was seriously injured.

Ms. Abernathy, the driver of the rental car, testified that she operated a
day care business out of her home. The five children in the back seat, one
of whom was her daughter, were under her care at the time of the accident.
The children were aged seven years, six years, five years, four years, and
nine months. Ms. Abernathy testified that she normally drove a jeep, but
because she had been in an accident earlier in the day she had rented the
Chevrolet. She testified that she normally had car seats for the children
who required restraints but that she did not use them that day because
there was not room in the Chevrolet. It was stipulated that the six
passengers in the back seat were unrestrained. It was undisputed that only
Carlon sustained serious injuries. Pediatric surgeon Dr. Joseph Earl
Kelley, Jr., testified at trial that he had treated the victim and that the force
of the air bag deployment had broken the child's neck. He testified that it
was "not the type of injury that would typically be seen from motor
vehicle accidents when children are unrestrained and thrown around." Dr.
Kelley testified that an injury such as the one Carlon sustained is always
fatal.

The prosecution introduced photos showing air bag warnings affixed

to the rental automobile's visors and front-passenger seat belt. The visor
warning was positioned on the side of the visor facing the passenger and
read as follows:

!WARNING
DEATH or SERIOUS INJURY can occur
 Children 12 and under can be killed by the air bag.
The BACK SEAT is the SAFEST place for children.
NEVER put a rear-facing child seat in the front.
Sit as far back as possible from the air bag.
ALWAYS use SEAT BELTS and CHILD RESTRAINTS.

The prosecution also introduced other evidence in its effort to establish

that Ms. Jones knew her son should have been in a child restraint and
should not have been seated in front of an air bag.…

… To establish criminally negligent homicide, the State must prove

three elements beyond a reasonable doubt: (1) criminally negligent
conduct on the part of the accused; (2) that proximately causes; (3) a
person's death. … Ms. Jones argues that the evidence is insufficient to
support her conviction for criminally negligent homicide because the
evidence does not establish that she was grossly negligent. The State
argues that the evidence supports the jury's determination that Ms. Jones'
failure to perceive the risk to her son was a gross deviation from the
standard of care.

Criminally negligent conduct that “results in death constitutes

criminally negligent homicide.” Tenn.Code Ann. § 39-13-212(a). [In
determining whether a] person acts with criminal negligence … we must
examine the defendant's conduct to determine (1) whether a substantial
and unjustifiable risk existed at the time of the conduct or resulting from
the conduct; (2) whether, using a subjective standard, the defendant failed
at the time of the conduct to perceive the risk; and (3) whether that failure
was a gross deviation from the standard of care of an ordinary person
under the circumstances.

The Court of Criminal Appeals held that the evidence was sufficient to
convict Ms. Jones of criminal negligence, concluding that she “knew that
by failing to place her child in a child restraint seat, she was exposing her
child to serious bodily harm or death.” The court cited Ms. McClain's
testimony that Ms. Jones had been verbally informed of child restraint
laws and was given written information on vehicle safety. The court also
cited the visor warnings and the fact that Ms. Jones and the child's father
had a child restraint seat and had used it on other occasions. Finally, the
court noted that “during the year prior to the accident, assorted public
service announcements in print and television were circulated regarding
the importance of using child restraint seats.”

We disagree with the Court of Criminal Appeals' conclusion. Viewing

the evidence in the light most favorable to the State, as we must, and
applying a subjective point of view, as we must, we conclude that the
evidence failed to establish that Ms. Jones was criminally negligent. We
have little doubt that holding a two-year-old child on one’s lap in front of
an air bag constitutes a substantial and unjustified risk. However, we must
determine whether there was sufficient evidence to permit a rational trier
of fact to conclude that Ms. Jones’ failure to perceive that risk was a gross
deviation from the standard of care. For several reasons, we cannot say
that there was.

First, although the State introduced a collection of newspaper articles

and two television “spots” to show that information about safely
transporting children was available to the community, nothing in the
record indicates that Ms. Jones actually saw or read any of that
information.…

Second, the articles and television spots entered into evidence

illustrate how new the risk of air bags was in 1998. According to one of
the articles, 1999 was the first year that all cars had passenger-side air
bags.…

Third, the very fact that there was a need for a large-scale public
information campaign aimed at educating parents about child car safety
indicates, sadly, how many people in the community simply were not
using child safety restraints at the time of the accident. In fact, one of the
newspaper articles in the record, published on October 28, 1998--just
twelve days before the accident--noted that a “recent survey” in Hamilton
County had found that “only about sixty percent (60%) of youngsters
observed riding in cars and trucks were restrained. Some were sitting in
laps.” Judy Frank, Buckle Up Your Child, Chattanooga Free Press, Oct.
28, 1998, at E1. If 40% of the children being transported in Ms. Jones’
community were being transported without being properly restrained at
the time of the accident, it would be difficult for a rational trier of fact to
conclude that it was a gross deviation from the standard of care at the time
of the accident for Ms. Jones to transport her child improperly.

… Although Ms. Jones’ failure to heed … warnings and to perceive

the danger posed by sitting with her child on her lap in front of an air bag
may have been negligent, our cases illustrate that it simply does not rise to
the level of gross negligence necessary to uphold a conviction for
criminally negligent homicide.

Tennessee courts have sustained convictions for criminally negligent

homicide only where a “risk is of such a nature and degree that injury or
death is likely and foreseeable.” State v. Gillon, 15 S.W.3d 492, 498
(Tenn.Crim.App.1997) (emphasis added). For example, in State v.
Goodwin, 143 S.W.23d 771 (Tenn. 2004), a jury found the defendant
guilty of criminally negligent homicide where the defendant had left a
cocked shotgun in the woods fifty feet behind a house in a crowded
neighborhood. Two children found the gun; it accidentally discharged,
killing one child and severely injuring the other. Concluding that the
defendant had “exercised extremely poor judgment in his handling of an
inherently dangerous weapon,” this Court affirmed the judgment.

We have consistently applied the requirement that death or injury be

likely and foreseeable in cases involving automobile accidents. In Roe v.
State, 358 S.W.2d 308 (Tenn. 1962) a jury found the defendant guilty of
involuntary manslaughter on a criminal negligence theory where she
locked her husband out of the car and then drove off, dragging him
alongside the vehicle. This Court affirmed, holding that the victim's death
was the “natural and probable consequence” of the defendant’s
negligence. Id. at 314-15. In Reed v. State, 110 S.W.2d 308 (Tenn.
1937), a defendant who pulled into “heavy and closely approaching
opposing traffic” to pass a truck was guilty of involuntary manslaughter
because the resulting collision was “not only a probable result but almost
an inevitable result of such negligence as the defendant’s.”

Likewise, automobile cases in which someone other than the driver

was criminally negligent further illustrate the level of negligence required
for a finding of a “gross deviation” from the standard of care. In Flippen
v. State, 365 S.W.2d 895 (Tenn. 1963), this Court held that a passenger
was criminally negligent in failing to alert the intoxicated driver that he
had struck another car, sending it off the road and into a lake, and for
assisting the driver in concealing the car after the accident.…

In contrast, ordinary negligence or inattention on the part of a mother

does not rise to the level of gross negligence, even if the mother's conduct
contributes to the death of her child. In State v. Davis, 798 S.W.2d 268
(Tenn.Crim.App.1990), the defendant was convicted of involuntary
manslaughter in the drowning of her two-year-old son. The Court of
Criminal Appeals held that there was insufficient evidence of criminal
negligence to sustain the conviction because the mother had assumed the
child was being watched by his stepfather and grandmother. In State v.
Owens 820 S.W.2d 757 (Tenn.Crim. App 1991), the Court of Criminal
Appeals held that there was insufficient evidence to convict the defendant
of criminally negligent homicide in the death of her severely disabled
eleven-month-old daughter even though the mother had removed the child
from a respiratory monitor and had not given her prescribed medications.
“Although some carelessness and negligence on the part of the [defendant]
is shown in this record,” the court held, “we cannot say it rose to the level
of gross negligence.... It is not sufficient to say, with 20/20 hindsight, that
the [defendant] could have, or should have, done some things differently.”
Id. at 760.…

In sum, the above cases demonstrate that something much greater than
 the want of ordinary care shown by Ms. Jones is necessary to affirm her
conviction. There must be a gross deviation from the standard of care. We
were unable to find a case anywhere in the country holding a parent
criminally liable for a child's death based on the conduct of placing the
child in front of a passenger-side air bag. Viewing all the evidence in the
light most favorable to the prosecution, the evidence is not sufficient to
permit a rational trier of fact to find Ms. Jones criminally negligent
beyond a reasonable doubt. We therefore reverse her conviction.

What in the world does the court mean when it says it must apply a “subjective standard”
or a “subjective point of view”? Are you persuaded by the court’s argument from the
frequency with which parents ignore the warnings and place young children in front
seats? What if, in a particular community or society it was considered cowardly to use a
seatbelt, and an insult to the driver? What if it were common to shoot guns in crowded
apartment buildings. May we not try to change such dangerous customs by using the
coercive force of the criminal law?

Page 415 – Add after Note 2:

A felony may also be an inappropriate predicate crime for a felony murder

conviction if it occurs after the infliction of the fatal wounds. In State v. Allen, 875
A.2d 724 (Md. App. 2005), Allen and Butler (the victim) met on the night before
Butler’s death and spent the night at Butler’s apartment. In the morning, Allen requested
an early ride home, and when Butler refused to get out of bed, Allen picked up Butler’s
car keys and tried to get Butler out of bed by saying he would drive himself home.
According to Allen, Butler responded by “coming at him” with one arm hidden under a
blanket. Allen grabbed a knife and tried to push Butler away from him. When Butler
continued to advance, Allen stabbed him. Afterwards, Allen grabbed the car keys and
drove the car to find help (Butler’s phone lines were not working). Maryland charged
Allen for first degree felony-murder and robbery with a dangerous or deadly weapon,
among other related charges. The jury found Allen guilty of first degree felony-murder,
but the Maryland Court of Appeals reversed the conviction because the state had not
proven that Allen formed the intent for the theft prior to stabbing Butler.
The Maryland courts and courts in other states that have ruled similarly generally find that the
theories of deterrence and “transferred malice” that underlie the felony murder rule cannot justify its
application to actions which occur before initiation of the predicate felony.

When an actor engages in one of the statutorily enumerated felonies and a killing occurs,
the law, via the felony-murder rule, allows the finder of fact to infer the killing was
malicious from the fact that the actor engaged in a felony of such a dangerous nature to
human life because the actor, as held to a standard of a reasonable man, knew or should
have known that death might result from the felony…. But, where an actor kills prior to
formulating the intent to commit the underlying felony, we cannot say the actor knew or
should have known death might occur from involvement in a dangerous felony because
no involvement in a dangerous felony exists since the intent to commit the felony is not
yet formulated.” … The felony-murder rule has [thus] been justified because the
defendant is acting maliciously at the time he kills, even if the object of his malice is
 unrelated to the victim's death. But where the fatal blow is struck without any
contemporaneous intent to commit the underlying felony, the mens rea is absent, and
thus, the theoretical foundation for the felony-murder rule is absent (quoting
Commonwealth v. Legg, 417 A.2d 1152 (Pa. 1980).

Put differently, the rationale is as follows:

The primary justification offered for the contemporary felony-murder rule is deterrence.
The doctrine is allegedly designed to save lives by threatening potential killers with the
serious sanction for first or second degree murder. One deterrent argument holds that the
threat of a murder conviction for any killing in furtherance of a felony, even an accidental
killing, might well induce a felon to forego committing the felony itself. Because it could
lead to quite severe punishment, the risk averse might shy away from the entire felonious
enterprise. Another argument, the more prevalent of the two main deterrent explanations
of felony-murder, maintains that the rule is aimed at discouraging certain conduct during
the felony, not the felony itself. The goal is to encourage greater care in the performance
of felonious acts. Such care will lower the risks to human life and result in fewer deaths.
Still another view suggests that felons who might kill intentionally in order to complete
their felonies successfully will be discouraged by the rule's proclamation that the law will
entertain no excuses for the homicide. Calculating felons will forego killing because of
their awareness that the chance of constructing a defense that would eliminate or mitigate
liability is virtually nonexistent and that, therefore, their likely fate is a murder
conviction.’ If the victim is dead when the intent to commit the felony is
formed, the deterrent purpose underlying the rule cannot be served.”
(quoting James J. Tomkovicz, The Endurance of the Felony-Murder Rule: A Study
of the Forces that Shape Our Criminal Law, 51 Wash. & Lee L.Rev., 1429, 1448-49
(1994).

By contrast, the minority view allows the felony murder rule to apply as long as a
continuity of action connects the homicide and the predicate felony. States which adopt
this minority approach rely on the language of their felony murder statutes, see State v.
Williams, 660 N.E.2d 724 (Ohio1996) (finding that the use of the term “while” to connect the actions
causing death to the felony in the Ohio code indicated “that the death must occur as part of acts leading up
to, or occurring during, or immediately subsequent to the [relevant felony]”), and the so-called res gestae
theory, see Perry v. State, 853 P.2d 198, 200 (Okla. Crim. App. 1993) (“If the homicide is committed
during the one, continuous transaction, the acts are so closely connected as to be
inseparable in terms of time, place, and causal relation, and the actions tend to be
explanatory and incidental to each other, the homicide has been committed during the
felony in our statutory sense.”).
Can the different approaches be sorted according to the distinction between the formation of the
intent for the predicate felony and actions carrying out the predicate felony? It would be difficult to
imagine a rule requiring the completion of the predicate felony begore the actions causing death, but what
about a rule requiring the initiation of the predicate felony? In State v. Allen, the defendant killed an
acquaintance and then stole the victim’s car keys and used the car to flee the scene. By contrast, State v.
Williams involved a defendant who attacked a married couple and killed the husband prior to raping the
wife. In both cases, the timing of the formation of intent for the predicate felony was ambiguous. Does one
seem more like an “afterthought” felony than the other? Is this really an “in furtherance” issue?

Page 415 – Add after Note 3:

4. Accomplice liability and the scope of the felony. The question of when a
killing is within the scope of the felony is particularly important when one felon surprises
his or her co-felons by intentionally killing a victim. The following case illustrates a
popular but murky standard for such killings.

PEOPLE v. CAVITT
Supreme Court of California
33 Cal. 4th 187 (2004)

Defendants James Cavitt and Robert Williams were convicted in separate trials of
the felony murder of 58-year-old Betty McKnight, the stepmother of Cavitt's girlfriend,
Mianta McKnight. Defendants admitted plotting with Mianta to enter the McKnight
home, to catch Betty unawares and tie her up, and to steal Betty's jewelry and other
property. On the evening of December 1, 1995, with Mianta’s assistance, the plan went
forward. Defendants entered the house, threw a sheet over Betty's head, bound this
hooded sheet to her wrists and ankles with rope and duct tape, and escaped with guns,
jewelry, and other valuables from the bedroom. Betty was beaten and left hog-tied, face
down on the bed. Her breathing was labored. Before leaving, defendants made it appear
that Mianta was a victim by pretending to tie her up as well. By the time Mianta untied
herself and called her father to report the burglary-robbery, Betty had died from
asphyxiation.

The evidence at trial amply supported a finding that defendants were the direct
perpetrators of the murder. However, there was also evidence that tended to support the
defense theory--namely, that Mianta deliberately suffocated Betty, for reasons
independent of the burglary-robbery, after defendants had escaped and reached a place of
temporary safety. Defendants assert that the felony-murder rule would not apply to this
scenario and that the trial court's instructions erroneously denied the jury the opportunity
to consider their theory.

Because the jury could have convicted defendants without finding they were the
direct perpetrators of the murder, we granted review to clarify a nonkiller’s liability for a
killing “committed in the perpetration” of an inherently dangerous felony under Penal
Code section 189’s felony-murder rule. (See People v. Pulido (1997) 15 Cal.4th 713,
720-723, 63 Cal.Rptr.2d 625) We hold that, in such circumstances, the felony-murder
rule requires both a causal relationship and a temporal relationship between the
underlying felony and the act resulting in death. The causal relationship is established by
proof of a logical nexus, beyond mere coincidence of time and place, between the
homicidal act and the underlying felony the nonkiller committed or attempted to commit.
The temporal relationship is established by proof the felony and the homicidal act were
part of one continuous transaction. Applying these rules to the facts here, we affirm the
judgments of the Court of Appeal.…

This case involves the “‘complicity aspect’” of the felony-murder rule.…

Defendants contend that a nonkiller can be liable for the felony murder committed by
another only if the act resulting in death facilitated the commission of the underlying
felony. Since (in their view) the evidence here would have supported the inference that
Mianta killed her stepmother out of a private animus, and not to advance the burglary-
robbery, they claim that the trial court’s failure to instruct the jury on the requirement
that the killing facilitate the burglary-robbery mandates reversal of their felony-murder
convictions. The Attorney General, on the other hand, asserts that no causal relationship
need exist between the underlying felony and the killing. In his view, it is enough that
the act resulting in death occurred at the same time as the burglary and robbery.

After reviewing our case law, we find that neither formulation satisfactorily
describes the complicity aspect of California’s felony-murder rule. We hold instead that
the felony-murder rule does not apply to nonkillers where the act resulting in death is
completely unrelated to the underlying felony other than occurring at the same time and
place. Under California law, there must be a logical nexus—i.e., more than mere
coincidence of time and place—between the felony and the act resulting in death before
the felony-murder rule may be applied to a nonkiller. Evidence that the killing facilitated
or aided the underlying felony is relevant but is not essential.

We also hold that the requisite temporal relationship between the felony and the
homicidal act exists even if the nonkiller is not physically present at the time of the
homicide, as long as the felony that the nonkiller committed or attempted to commit and
the homicidal act are part of one continuous transaction.

“All murder ... which is committed in the perpetration of, or attempt to perpetrate
[certain enumerated felonies including robbery and burglary] ... is murder of the first
degree.” (Pen.Code, § 189.) The mental state required is simply the specific intent to
commit the underlying felony, since only those felonies that are inherently dangerous to
life or pose a significant prospect of violence are enumerated in the statute. “Once a
person has embarked upon a course of conduct for one of the enumerated felonious
purposes, he comes directly within a clear legislative warning—if a death results from his
commission of that felony it will be first degree murder, regardless of the circumstances.”
(People v. Burton (1971) 6 Cal.3d 375, 387-388, 99 Cal.Rptr. 1, 491 P.2d 793) The
purpose of the felony-murder rule is to deter those who commit the enumerated felonies
from killing by holding them strictly responsible for any killing committed by a cofelon,
whether intentional, negligent, or accidental, during the perpetration or attempted
perpetration of the felony. (Burton, supra, 6 Cal.3d at p. 388, 99 Cal.Rptr. 1) “The
Legislature has said in effect that this deterrent purpose outweighs the normal legislative
policy of examining the individual state of mind of each person causing an unlawful
killing to determine whether the killing was with or without malice, deliberate or
accidental, and calibrating our treatment of the person accordingly. Once a person
perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment
of the Legislature, he is no longer entitled to such fine judicial calibration, but will be
deemed guilty of first degree murder for any homicide committed in the course thereof.”
(Ibid.)

Defendants contend that a nonkiller’s liability for the felony murder committed
by a cofelon depends on proof of a very specific causal relationship between the
homicidal act and the underlying felony—namely, that the killer intended thereby to
advance or facilitate the felony. Yet, … the felony-murder rule is intended to eliminate
the need to plumb the parties' peculiar intent with respect to a killing committed during
the perpetration of the felony. Defendants' formulation, which finds no support in the
statutory text, would thwart that goal.

Moreover, defendants’ formulation is at odds with a fundamental purpose of the

felony-murder rule, which is “‘to deter felons from killing negligently or accidentally by
holding them strictly responsible for killings they commit.’” (People v. Billa (2003) 31
Cal.4th 1064, 1069, 6 Cal.Rptr.3d 425) It is difficult to imagine how homicidal acts that
are unintentional, negligent, or accidental could be said to have advanced or facilitated
the underlying felony when those acts are, by their nature, unintended.

Defendants make little effort to grapple with the policies underlying the felony-
murder rule and rely instead almost entirely on our oft-repeated observation in People v.
Vasquez (1875) 49 Cal. 560 that “‘[i]f the homicide in question was committed by one of
[the nonkiller’s] associates engaged in the robbery, in furtherance of their common
purpose to rob, he is as accountable as though his own hand had intentionally given the
fatal blow, and is guilty of murder in the first degree.’” (Id. at p. 563, italics added.)
Relying on Vasquez, defendants claim the felony-murder rule requires proof that the
homicidal act have advanced or facilitated the underlying felony.… [However, in] the
century and a quarter since Vasquez was decided, we have never construed it to require a
killing to advance or facilitate the felony, so long as some logical nexus existed between
the two. …Such a requirement finds no support in the statutory text, either. Penal Code
section 189 states only that “[a]ll murder ... which is committed in the perpetration of, or
attempt to perpetrate” the enumerated felonies "is murder of the first degree." (Pen.Code,
§ 189.).…

Indeed, even jurisdictions whose felony-murder statutes require the homicidal act
be “in furtherance” of an enumerated felony do not require proof that the act furthered or
aided the felony. People v. Lewis (N.Y.Sup.Ct.1981) 444 N.Y.S.2d 1003, 1006], which
construed a New York felony-murder statute that included this language, is instructive:
“This equation of ‘in furtherance’ with ‘in aid of’ or ‘in advancement of’ has the virtue of
linguistic accuracy, but is at odds with both the history and purpose of the ‘in
furtherance’ requirement. The phrase can best be understood as the third logical link in
the triad which must be present to connect a felony with a consequent homicide. Just as
‘in the course of’ imposes a duration requirement, [and] ‘causes the death’ a causation
requirement, ‘in furtherance’ places a relation requirement between the felony and the
homicide. More than the mere coincidence to time and place [citation], the nexus must
be one of logic or plan. Excluded are those deaths which are so far outside the ambit of
the plan of the felony and its execution as to be unrelated to them.” In sum, it is “a
misinterpretation of the phrase to require that the murder bring success to the felonious
purpose.” (Id. at 1006-1007) We likewise construe Penal Code section 189 to require
only a logical nexus between the felony and the homicide.

Defendants'’ proffered interpretation would also lead to absurd results. Consider

the situation in which a fire is set and the defendant departs by the time a firefighter
arrives and dies in the course of combating the fire. A Washington appellate court,
embracing defendants’ approach, interpreted the “in furtherance” requirement in its
felony-murder statute to relieve a defendant-arsonist from liability in those
circumstances: “Here, there is no evidence from which any reasonable juror could
conclude that in acting to advance or promote the arson, [defendant] caused [the victim's]
death.” (State v. Leech (1989) 775 P.2d 463, 466.) The Washington Supreme Court
rejected this approach and upheld the felony-murder conviction, finding it sufficient that
there was a temporal and causal connection between the arson and the death. (State v.
Leech, (1990) 790 P.2d 160, 163-165 & fn. 21)

The Attorney General, on the other hand, contends that the requisite intent,
combined with a killing by a cofelon that occurs while the felony is ongoing, is sufficient
to establish the nonkiller’s liability for felony murder. His formulation, in other words,
would require only a temporal connection between the homicidal act and the underlying
felony. This description of the relationship between the killing and the felony is
incomplete. We have often required more than mere coincidence in time and place
between the felony and the act resulting in death to establish a nonkiller's liability for
felony murder. In People v. Washington, supra, 62 Cal.2d 777, 44 Cal.Rptr. 442, 402,
for example, we reversed a conviction of felony murder where the accomplice was killed
during the robbery by the victim. We held that Penal Code section 189 requires “that the
felon or his accomplice commit the killing, for if he does not, the killing is not committed
to perpetrate the felony.” (Washington, supra, at p. 781, 44 Cal.Rptr. 442) In Pulido, we
held that section 189 does not apply even where a cofelon committed the killing during a
robbery, if the nonkiller did not join the felony until after the killing occurred.

Substantial evidence of a logical nexus between the burglary-robbery and the

murder exists in this case as well. The record supports a finding that defendants and/or
Mianta killed Betty to eliminate the sole witness to the burglary-robbery or that Betty
died accidentally as a result of being bound and gagged during the burglary-robbery.
Either theory is sufficient to support the judgment. Even if the jury believed that
defendants did not want to kill Betty or that they conditioned their participation in the
burglary-robbery on the understanding that Betty not get hurt, it would not be a defense
to felony murder.

As defendants point out, however, the record might also have supported a finding
that Mianta killed Betty out of a private animus and not to aid or promote the burglary-
robbery. Defendants contend that the jury instructions, by omitting any requirement that
the homicidal act be “in furtherance of” the burglary-robbery, failed to apprise the jury of
this latter possibility and therefore mandate reversal of their convictions.

We disagree. [A]s we have explained above, the felony-murder rule does not
require proof that the homicidal act furthered or facilitated the felony, only that a logical
nexus exist between the two. We therefore do not find the jury instructions deficient
merely because the “in furtherance” phrasing was omitted. …The instructions in Cavitt's
case …provided in relevant part: “If a human being is killed by one of several persons
engaged in the commission of the crimes of robbery or burglary, all persons, who either
directly and actively commit the act constituting that crime, or who with knowledge of
the unlawful purpose of the perpetrator of the crime and with the intent or purpose of
committing, encouraging or facilitating the commission of the offense, aid, promote,
encourage or instigate by act or advice its commission, are guilty of murder in the first
degree, whether the killing is intentional, unintentional or accidental.”

The instructions adequately apprised the jury of the need for a logical nexus
between the felonies and the homicide in this case. To convict, the jury necessarily
found that “the killing occurred during the commission or attempted commission of
robbery or burglary” by “one of several persons engaged in the commission” of those
crimes.” The first of these described a temporal connection between the crimes; the
second described the logical nexus. A burglar who happens to spy a lifelong enemy
through the window of the house and fires a fatal shot … may have committed a killing
while the robbery and burglary were taking place but cannot be said to have been
“engaged in the commission” of those crimes at the time the shot was fired.…

Defendants apparently assume that Mianta’s personal animus towards the victim
of the felony, if credited, should somehow absolve the other participants of their
responsibility for the victim's death. They are mistaken. Liability for felony murder does
not depend on an examination of “the individual state of mind of each person causing an
unlawful killing to determine whether the killing was with or without malice, deliberate
or accidental.... Once a person perpetrates or attempts to perpetrate one of the enumerated
felonies, then in the judgment of the Legislature, he is no longer entitled to such fine
judicial calibration....” (Burton, supra, 6 Cal.3d at p. 388, 99 Cal.Rptr. 1)… Accordingly,
a nonkiller’s liability for felony murder does not depend on the killer’s subjective
motivation but on the existence of objective facts that connect the act resulting in death to
the felony the nonkiller committed or attempted to commit.

One would hardly be surprised to discover that targets of inherently dangerous

felonies are selected precisely because one or more of the participants in the felony
harbors a personal animus towards the victim. But it would be novel indeed if that
commonplace fact could be used to exculpate the parties to a felonious enterprise of a
murder committed in the perpetration of that felony, where a logical nexus between the
felony and the murder exists.…

The judgment of the Court of Appeal is affirmed.

Notes and Questions

1. The court rejects a requirement that a killing be “in furtherance” of the felony,
in favor of the requirement that it have some “logical nexus” to the killing. What does
this phrase mean? Assuming that Mianta killed the victim out of personal animus after
the robbery had been completed successfully, what “nexus” was there between these two
crimes? The mere fact that they had a common victim? The fact that the robbery
facilitated the killing? Isn’t that exactly the sort of relationship rejected in Stouffer?
 2. The court rejects any inquiry into Mianta’s motives for the killing as
inconsistent with the purposes of the felony murder rule. But—whether or not you agree
with those purposes—don’t they all presume that the rule applies only to killings by
those engaged in the felony? If Mianta’s purpose at the moment of killing had nothing to
do with the felony, how do the purposes the court ascribes to the felony murder rule
justify its application?

3. The Court rejects liability for one who, during a robbery, spies an enemy and
shoots out a window at her. How is that case distinguishable from the actual one?

Chapter 7 – Capital Murder and the Death Penalty

Page 447 – Add to middle of 2d paragraph of Note 1:

The Florida Supreme Court recently ruled that Ring does not require Florida to
change its death penalty statute, which rests death eligibility on a finding by the majority
of jurors that an aggravating factor exists but does not require them to agree on which
particular aggravating factor. Furthermore, Florida judges may not use special jury
forms to require jurors to reach a majority on each potential aggravator. State v. Steele,
921 So.2d 538 (Fla. 2005).

Page 457 – Add to Section B(3)(a):

The Supreme Court recently extended its Blystone reasoning to cases where the
aggravating and mitigating evidence stand in equipoise. In Kansas v. Marsh, 548 U.S.
___ (2006), the Court ruled that Kansas’s death penalty statute, which mandates death
when the jury finds that mitigators do not outweigh aggravators, does not violate the
Eighth Amendment.

Respondent Michael Lee Marsh II broke into the home of Marry

Ane Pusch and lay in wait for her to return. When Marry Ane entered her
home with her 19-month-old daughter, M. P., Marsh repeatedly shot
Marry Ane, stabbed her, and slashed her throat. The home was set on fire
with the toddler inside, and M.P. burned to death.
The jury convicted Marsh of the capital murder of M. P., the first-degree
premeditated murder of Marry Ane, aggravated arson, and aggravated burglary. The jury
found beyond a reasonable doubt the existence of three aggravating circumstances, and
that those circumstances were not outweighed by any mitigating circumstances. On the
basis of those findings, the jury sentenced Marsh to death for the capital murder of M.P.
The jury also sentenced Marsh to life imprisonment without possibility of parole for 40
years for the first-degree murder of Marry Ane, and consecutive sentences of 51 months'
imprisonment for aggravated arson and 34 months' imprisonment for aggravated burglary.

On direct appeal, Marsh challenged [K.S.A.] § 21-4624(e), which reads:

 If, by unanimous vote, the jury finds beyond a reasonable doubt that
one or more of the aggravating circumstances enumerated in K.S.A. 21-
4625 ... exist and, further, that the existence of such aggravating
circumstances is not outweighed by any mitigating circumstances
which are found to exist, the defendant shall be sentenced to death;
otherwise the defendant shall be sentenced as provided by law.

Focusing on the phrase “shall be sentenced to death,” Marsh argued that § 21-
4624(e) establishes an unconstitutional presumption in favor of death because it directs
imposition of the death penalty when aggravating and mitigating circumstances are in
equipoise.

The Kansas Supreme Court agreed, and held that the Kansas death penalty
statute, § 21-4624(e), is facially unconstitutional. The court concluded that the statute's
weighing equation violated the Eighth and Fourteenth Amendments of the United States
Constitution because, “[i]n the event of equipoise, i.e., the jury’s determination that the
balance of any aggravating circumstances and any mitigating circumstances weighed
equal, the death penalty would be required.” The Kansas Supreme Court affirmed Marsh's
conviction and sentence for aggravated burglary and premeditated murder of Marry Ane,
and reversed and remanded for new trial Marsh’s convictions for capital murder of M.P.
and aggravated arson. [Footnote omitted] We granted certiorari and now reverse the
Kansas Supreme Court’s judgment that Kansas’ capital sentencing statute is facially
unconstitutional….

This case is controlled by Walton v. Arizona, 497 U.S. 639 (1990),

overruled on other grounds, Ring v. Arizona, 536 U.S. 584 (2002). In that case, a jury had
convicted Walton of a capital offense. At sentencing, the trial judge found the existence
of two aggravating circumstances and that the mitigating circumstances did not call for
leniency, and sentenced Walton to death. The Arizona Supreme Court affirmed, and this
Court granted certiorari to resolve the conflict between the Arizona Supreme Court’s
decision in State v. Walton, 769 P.2d 1017 (1989) (en banc) (holding the Arizona death
penalty statute constitutional), and the Ninth Circuit’s decision in Adamson v. Ricketts,
865 F.2d 1011, 1043-1044 (1988) (en banc) (finding the Arizona death penalty statute
unconstitutional because, “in situations where the mitigating and aggravating
circumstances are in balance, or, where the mitigating circumstances give the court
reservation but still fall below the weight of the aggravating circumstances, the statute
bars the court from imposing a sentence less than death”). See Walton, 497 U.S., at 647.

Consistent with the Ninth Circuit's conclusion in Adamson, Walton argued to

this Court that the Arizona capital sentencing system created an unconstitutional
presumption in favor of death because it "tells an Arizona sentencing judge who finds
even a single aggravating factor, that death must be imposed, unless—as the Arizona
Supreme Court put it in Petitioner’s case—there are ‘outweighing mitigating factors.’”
Brief for Petitioner in Walton v. Arizona (arguing that the statute is unconstitutional
because the defendant “‘must ... bear the risk of nonpersuasion that any mitigating
circumstance will not outweigh the aggravating circumstance’” (alteration omitted)).
Rejecting Walton's argument, this Court stated:

“So long as a State’s method of allocating the burdens of proof does not lessen
the State’s burden to prove every element of the offense charged, or in this case to prove
the existence of aggravating circumstances, a defendant’s constitutional rights are not
violated by placing on him the burden of proving mitigating circumstances sufficiently
substantial to call for leniency.” Id., at 650.

This Court noted that, as a requirement of individualized sentencing, a jury must

have the opportunity to consider all evidence relevant to mitigation, and that a state
 statute that permits a jury to consider any mitigating evidence comports with that
requirement. Id., at 652 (citing Blystone v. Pennsylvania, 494 U.S. 299 (1990)). The
Court also pointedly observed that while the Constitution requires that a sentencing jury
have discretion, it does not mandate that discretion be unfettered; the States are free to
determine the manner in which a jury may consider mitigating evidence. 497 U.S., at 652,
(citing Boyde v. California, 494 U.S. 370, 374 (1990)). So long as the sentencer is not
precluded from considering relevant mitigating evidence, a capital sentencing statute
cannot be said to impermissibly, much less automatically, impose death. 497 U.S., at 652
(citing Woodson v. North Carolina, 428 U.S. 280 (1976) (plurality opinion), and Roberts
v. Louisiana, 428 U.S. 325 (1976) (plurality opinion)). Indeed, Walton suggested that the
only capital sentencing systems that would be impermissibly mandatory were those that
would "automatically impose death upon conviction for certain types of murder." 497
U.S., at 652….
.
Even if, as Marsh contends, Walton does not directly control, the general
principles set forth in our death penalty jurisprudence would lead us to conclude that the
Kansas capital sentencing system is constitutionally permissible. Together, our decisions
in Furman v. Georgia and Gregg v. Georgia establish that a state capital sentencing
system must: (1) rationally narrow the class of death-eligible defendants; and (2) permit a
jury to render a reasoned, individualized sentencing determination based on a death-
eligible defendant's record, personal characteristics, and the circumstances of his crime.
So long as a state system satisfies these requirements, our precedents establish that a State
enjoys a range of discretion in imposing the death penalty, including the manner in which
aggravating and mitigating circumstances are to be weighed….

The Kansas death penalty statute satisfies the constitutional mandates of Furman
and its progeny because it rationally narrows the class of death-eligible defendants and
permits a jury to consider any mitigating evidence relevant to its sentencing
determination. It does not interfere, in a constitutionally significant way, with a jury’s
ability to give independent weight to evidence offered in mitigation….

Consonant with the individualized sentencing requirement, a Kansas jury is

permitted to consider any evidence relating to any mitigating circumstance in determining
the appropriate sentence for a capital defendant, so long as that evidence is relevant. § 21-
4624(c). Specifically, jurors are instructed:

A mitigating circumstance is that which in fairness or mercy

may be considered as extenuating or reducing the degree of moral
culpability or blame or which justify a sentence of less than death,
although it does not justify or excuse the offense. The determination of
what are mitigating circumstances is for you as jurors to resolve under
the facts and circumstances of this case.

The appropriateness of the exercise of mercy can itself be a

mitigating factor you may consider in determining whether the State
has proved beyond a reasonable doubt that the death penalty is
warranted. (Instruction No. 4).25

Jurors are then apprised of, but not limited to, the factors that the
defendant contends are mitigating. They are then instructed that “[e]ach

25
The “mercy” jury instruction alone forecloses the possibility of Furman-type error as it “eliminate[s] the
risk that a death sentence will be imposed in spite of facts calling for a lesser penalty.” (Souter, J.,
dissenting).
 juror must consider every mitigating factor that he or she individually
finds to exist.”
Kansas' weighing equation (Instruction No. 5), merely channels a jury's
discretion by providing it with criteria by which it may determine whether a sentence of
life or death is appropriate. The system in Kansas provides the type of “‘guided
discretion,’” Walton, 497 U.S., at 659 (citing Gregg, 428 U.S., at 189), we have
sanctioned in Walton, Boyde, and Blystone.

Indeed, in Boyde, [the defendant] argued that the mandatory language of the
instruction prevented the jury from rendering an individualized sentencing determination.
This Court rejected that argument, concluding that it was foreclosed by Blystone, where
the Court rejected a nearly identical challenge to the Pennsylvania death penalty statute.26
In so holding, this Court noted that the mandatory language of the statute did not prevent
the jury from considering all relevant mitigating evidence. Similarly here, § 21-4624(e)
does not prevent a Kansas jury from considering mitigating evidence. Marsh's argument
that the Kansas provision is impermissibly mandatory is likewise foreclosed.27

Contrary to Marsh's argument, § 21-4624(e) does not create a

general presumption in favor of the death penalty in the State of Kansas.
Rather, the Kansas capital sentencing system is dominated by the
presumption that life imprisonment is the appropriate sentence for a
capital conviction. If the State fails to meet its burden to demonstrate the
existence of an aggravating circumstance(s) beyond a reasonable doubt, a
sentence of life imprisonment must be imposed. § 21-4624(e). If the State
overcomes this hurdle, then it bears the additional burden of proving
beyond a reasonable doubt that aggravating circumstances are not
outweighed by mitigating circumstances. Significantly, although the
defendant appropriately bears the burden of proffering mitigating
circumstances—a burden of production—he never bears the burden of
demonstrating that mitigating circumstances outweigh aggravating
circumstances. Instead, the State always has the burden of demonstrating
that mitigating evidence does not outweigh aggravating evidence. Absent
the State’s ability to meet that burden, the default is life imprisonment.
Moreover, if the jury is unable to reach a unanimous decision—in any
respect—a sentence of life must be imposed. § 21-4624(c). This system
does not create a presumption that death is the appropriate sentence for
capital murder.

26
In Blystone, the Pennsylvania statute authorized imposition of a death sentence if the jury concluded “that
the aggravating circumstances outweigh[ed] the mitigating circumstances present in the particular crime
committed by the particular defendant, or that there [were] no such mitigating circumstances.” 494 U.S., at
305.
27
Contrary to Justice Souter’s assertion [in his dissent], the Court's decisions in Boyde and Blystone did not
turn on the “predominance of the aggravators” in those cases. Rather, those decisions plainly turned on the
fact that the mandatory language of the respective statutes did not prevent the sentencing jury from
“consider [ing] and giv[ing] effect to all relevant mitigating evidence.” Blystone, supra, at 305. See also
Boyde, 494 U.S., at 377 (“[T]he legal principle we expounded in Blystone clearly requires rejection of
Boyde’s claim as well, because the mandatory language of [California jury instruction] 8.84.2 is not alleged
to have interfered with the consideration of mitigating evidence”). . . .
 Nor is there any force behind Marsh's contention that an equipoise determination
reflects juror confusion or inability to decide between life and death, or that a jury may
use equipoise as a loophole to shirk its constitutional duty to render a reasoned, moral
decision, regarding whether death is an appropriate sentence for a particular defendant.
Such an argument rests on an implausible characterization of the Kansas statute--that a
jury’s determination that aggravators and mitigators are in equipoise is not a decision,
much less a decision for death--and thus misses the mark…. Weighing is not an end; it is
merely a means to reaching a decision. The decision the jury must reach is whether life or
death is the appropriate punishment. The Kansas jury instructions clearly inform the jury
that a determination that the evidence is in equipoise is a decision for—not a presumption
in favor of—death. Kansas jurors, presumed to follow their instructions, are made aware
that: a determination that mitigators outweigh aggravators is a decision that a life
sentence is appropriate; a determination that aggravators outweigh mitigators or a
determination that mitigators do not outweigh aggravators--including a finding that
aggravators and mitigators are in balance--is a decision that death is the appropriate
sentence; and an inability to reach a unanimous decision will result in a sentence of life
imprisonment. So informed, far from the abdication of duty or the inability to select an
appropriate sentence depicted by Marsh …, a jury’s conclusion that aggravating evidence
and mitigating evidence are in equipoise is a decision for death and is indicative of the
type of measured, normative process in which a jury is constitutionally tasked to engage
when deciding the appropriate sentence for a capital defendant.

Page 464 – Add after Note 3:

In another desert felony murder case, Guy v. State, 839 P.2d 578 (1992), the
Nevada Supreme Court reviewed a death sentence based on the following facts:

On the evening of April 7, 1990, appellant Curtis Guy and his

friend Larry Pendleton were cruising the streets of North Las Vegas in an
automobile, intending to purchase cocaine. Appellant was driving. He
pulled the car into the parking lot of a convenience store, where they
encountered Ceasor Evans, with whom they had not been previously
acquainted. Evans told Pendleton and appellant that he knew where they
could buy cocaine. Evans entered the automobile, and the three men set
off to make the purchase. En route, Evans agreed to lead appellant and
Pendleton to his source in return for a portion of the drugs they would
purchase.
At Evans’ direction, appellant drove to an undisclosed location where they
purchased cocaine. As they drove away after making the purchase, Evans asked appellant
to pull to the side of the road so that Evans could urinate. Appellant stopped the car and
Evans alighted from the rear door. The cocaine remained in the car. As Evans stood
outside the car, appellant attempted to drive off so as to deprive Evans of his portion of
the cocaine. Evans, however, grabbed onto the rear door frame on the passenger side as
the car sped away. As appellant continued driving with Evans clinging to the door frame,
Pendleton turned and shot Evans three times in the abdomen with a .25 caliber handgun.
Evans fell from the car, and Pendleton and appellant drove off. Evans died later that
evening.
Some two weeks later, after a high-speed automobile chase through the
streets of North Las Vegas, appellant was charged with murder with the
 use of a deadly weapon.28 The state gave notice of its intent to seek the
death penalty.
At appellant’s jury trial, the state's theory of the case was as follows: Appellant
was guilty of first degree murder, either because he aided and abetted Pendleton in
murdering Evans or because he and Pendleton conspired to commit a dangerous felony
(robbery) and Evans was killed in the perpetration of this felony. At the conclusion of the
trial, the jury found appellant guilty of first degree murder.

At the penalty phase of the trial, the state offered evidence of appellant's
extensive criminal record, including crimes that Pendleton and appellant, acting together,
had committed near in time to the murder of Evans. On April 6, 1990, the day before they
murdered Evans, Pendleton and appellant burglarized the Las Vegas home of Jennifer
Courtney and, when she returned home during the course of the burglary, slashed her
throat in an attempt to murder her. She survived and later testified at the penalty phase of
appellant's trial. On April 11, 1990, Pendleton and appellant burglarized the home of
Richard French while he lay asleep in his bed. Their search for valuables took Pendleton
and appellant into the bedroom where French lay sleeping. Armed with handguns,
appellant and Pendleton each shot French several times in the head. French miraculously
survived, and he, too, testified at the penalty phase of appellant's trial.
At the conclusion of the penalty phase, the jury found that four
aggravating circumstances had been established beyond a reasonable
doubt. The jury did not, however, find any mitigating circumstances.
Appellant received a sentence of death.
Did Guy display a reckless indifference to human life or was he merely reckless with respect to the
dangerousness of the felony in question? Does this seem more like an Enmund case or a Tison case on the
issues of culpability and appropriateness of the death penalty? The Nevada court upheld Guy’s sentence:

In our view, the record amply demonstrates that appellant possessed the
necessary degree of culpability. First, because Pendleton had used deadly force during a
previous burglary committed by Pendleton and appellant (the burglary of Jennifer
Courtney's home on April 6, 1990), and because appellant knew that Pendleton was
carrying a gun the night Evans was murdered, we conclude that appellant was aware that
Pendleton would use deadly force in robbing Evans. Moreover, because of this
awareness, we believe that appellant possessed a reckless disregard for human life when
he participated in the robbery of Evans. Further, appellant demonstrated a reckless
disregard for human life by continuing to drive the automobile while Evans clung to the
door frame. Finally, appellant's reckless disregard for human life is evidenced by
appellant's failure to attempt to foil Pendleton's shooting of Evans and by his failure, after
the shooting, to stop and render aid to Evans.

Is indifference to human life a perpetual condition? Does the court’s conclusion reflect Guy’s
concrete “awareness that Pendleton would use deadly force” (emphasis added) or are they relying more
heavily on evidence of reckless indifference to human life in other situations?29

28
Pendleton was also indicted for Evans’s murder. Pursuant to a plea bargain, Pendleton was sentenced to
life
29
without the possibility of parole.
An interesting aspect of Guy v. State is that the jury did not provide an opinion on Guy’s
Tison culpability, the appellate court supplied the analysis
on its own: “Here, the Enmund determination of culpability was not made by the jury. This determination,
however, can be made at any point, and it need not be made by the jury. Cabana v. Bullock, 474 U.S. 376, 386-
387 (1986).
Page 472 – Add at the end of Note 6:

Since the Atkins decision in 2002, the states have endeavored to resolve the
procedural and definitional questions left open by the Supreme Court. On retroactivity,
courts have generally reached the same conclusion: that Atkins should be applied to
defendants who were sentenced prior to the ruling, as an exception to the Supreme
Court’s typical ban on retroactivity. This result rationally follows from the fact that the
Atkins prohibition relates to future executions resulting from pre-Atkins convictions. See,
e.g., Pickens v. State, 74 P.3d 601 (Okla. Crim. App. 2003).
In some states, each capital case includes a preliminary investigation of the defendant’s mental
retardation status. See Ariz. Rev. Stat. § 13-703.02 (2006) (“If the state files a notice of intent to seek the
death penalty, the court, unless the defendant objects, shall appoint a prescreening psychological expert in
order to determine the defendant's intelligence quotient using current community, nationally and culturally
accepted intelligence testing procedures.”). Elsewhere, the defendant must make a prima facie showing of
mental retardation to obtain a hearing on the matter. See, e.g., Bowling v. Com., 163 S.W.3d 361 (Ky.
2005).

Most state legislatures and courts which have considered the burden of proof issue, have assigned
it to the defendant. This reflects the understanding that “Atkins explicitly addressed mental
retardation as an exemption from capital punishment, not as a fact the absence of which
operates ‘as the functional equivalent of an element of a greater offense.’” State v.
Williams, 831 So. 2d 835, 860 n.35 (La. 2002) (quoting Ring v. Arizona, 536 U.S. 584
(2002)). As a counter example, New Jersey places the burden of proof on the state “as a
matter of public policy[, for] the risk of error—of putting to death one who should
rightfully be constitutionally exempt—is too great for any burden of proof to be placed
upon the defendant.” State v. Jimenez, 880 A.2d 468 (N.J. Super. App. Div. 2005).
As for the quantum of proof, many states limit the defendant’s burden to a preponderance of the
evidence. This is the highest standard which the Supreme Court approved for determining a defendant’s
competency to stand trial in Cooper v. Oklahoma, 517 U.S. 348 (1996). Some courts have
approved their state legislatures’ decisions to impose higher burdens. See, e.g., State v.
Grell, 66 P.3d 1234 (Ariz. 2003) (clear and convincing); People v. Vasquez, 84 P.3d
1019 (Colo. 2004) (clear and convincing); Head v. Hill, 587 S.E.2d 613 (Ga. 2003)
(beyond a reasonable doubt). These courts find that the higher standard is a matter of
discretion for state courts under Atkins and does not run afoul of the Constitution. As the
Head court notes, the Supreme Court has held that requiring a defendant to prove his
insanity defense beyond a reasonable doubt does not violate his due process rights, and
both the insanity and mental retardation operate as conditions which exempt the
defendant from punishment for which he would otherwise qualify. Id. at 621 (citing
Leland v. Oregon, 343 U.S. 790 (1952)). Florida and North Carolina also require capital
defendants to prove mental retardation by clear and convincing evidence. Fla. Stat. §
921.137(4) (2003); N.C. Gen. Stat. § 15A-2005(c) (2003).

Although the Supreme Court did not define mental retardation in Atkins and left
the task of identifying mental retardation to the states, it did cite the standards set by the
American Association on Mental Retardation and American Psychiatric Association.
Atkins v. Virginia, 536 U.S. 304, 309 n.3 (2002). According to the AAMR
:
Mental retardation refers to substantial limitations in present functioning. It is
characterized by significantly subaverage intellectual functioning, existing concurrently
with related limitations in two or more of the following applicable adaptive skill areas:
communication, self-care, home living, social skills, community use, self-direction, health
and safety, functional academics, leisure, and work. Mental retardation manifests before
age 18. [Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th
ed.1992).]

The APA definition relies on similar criteria:

The essential feature of Mental Retardation is significantly subaverage

general intellectual functioning (Criterion A) that is accompanied by
significant limitations in adaptive functioning in at least two of the
following skill areas: communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction,
functional academic skills, work, leisure, health, and safety (Criterion B).
The onset must occur before age 18 years (Criterion C). Mental
Retardation has many different etiologies and may be seen as a final
common pathway of various pathological processes that affect the
functioning of the central nervous system. [Diagnostic and Statistical
Manual of Mental Disorders 41 (4th ed. 2000).]

Although state definitions vary in language and specificity, most cleave to the
AAMR and APA definitions: the first two prongs are usually represented, while the third
prong is omitted with a slightly greater frequency. A common formulation is: “‘Mental
retardation’ means a condition based on a mental deficit that involves significantly
subaverage general intellectual functioning, existing concurrently with significant
impairment in adaptive behavior, where the onset of the foregoing conditions occurred
before the defendant reached the age of eighteen.” Ariz. Rev. Stat. § 13-703.02 (2006).

Some state definitions include IQ ceilings for the intellectual functioning prong
(either as a hard cut-off or a presumptive indicator). See, e.g., Neb. Rev. Stat. § 28-
105.01 (2005) (“An intelligence quotient of seventy or below on a reliably administered
intelligence quotient test shall be presumptive evidence of mental retardation”); Ariz.
Rev. Stat. § 13-703.02 (2006) (“‘Significantly subaverage general intellectual
functioning’ [prong 2] means a full scale intelligence quotient of seventy or lower.”);
Murphy v. State, 54 P.3d 556 (Okla. Crim. App. 2002) (providing, as part of an interim
definition before the enactment of guiding legislation, “no person can qualify as mentally
retarded if he has an IQ over 70”). Others do not. The California Supreme Court has
rejected the application of an IQ limit for prima facie Atkins claims, reasoning that (1) the
California legislature did not include a numerical IQ score in its definition of mental
retardation, (2) a fixed limit is inconsistent with other state statutes which include an IQ
score but use it as a presumptive limit, (3) established clinical definitions do not support
a fixed limit because it would not recognize the variability in the manifestation of mental
retardation in individual cases, and (4) IQ scores are insufficiently precise for use as a
fixed limit. In re Hawthorne, 35 Cal. 4th 40, 48-49 (2005).
After applying the AAMR definition and a non-criminal statutory definition of mental retardation
to the Atkins claim before it, the Texas Court of Criminal Appeals noted that a specialized definition could
be helpful in the criminal context.

Some might question whether the same definition of mental retardation that is used
for providing psychological assistance, social services, and financial aid is appropriate for
use in criminal trials to decide whether execution of a particular person would be
constitutionally excessive punishment. . . . The adaptive behavior criteria are
exceedingly subjective, and undoubtedly experts will be found to offer
opinions on both sides of the issue in most cases. There are, however,
some other evidentiary factors which factfinders in the criminal trial
context might also focus upon in weighing evidence as indicative of
mental retardation or of a personality disorder:
*Did those who knew the person best during the developmental stage--his
family, friends, teachers, employers, authorities--think he was mentally retarded
at that time, and, if so, act in accordance with that determination?
*Has the person formulated plans and carried them through or is his conduct
impulsive?
*Does his conduct show leadership or does it show that he is led around by
others?
*Is his conduct in response to external stimuli rational and appropriate,
regardless of whether it is socially acceptable?
*Does he respond coherently, rationally, and on point to oral or written
questions or do his responses wander from subject to subject?
*Can the person hide facts or lie effectively in his own or others' interests?
*Putting aside any heinousness or gruesomeness surrounding the capital offense,
did the commission of that offense require forethought, planning, and complex
execution of purpose?

Although experts may offer insightful opinions on the question of whether a particular
person meets the psychological diagnostic criteria for mental retardation, the ultimate
issue of whether this person is, in fact, mentally retarded for purposes of the Eighth
Amendment ban on excessive punishment is one for the finder of fact, based upon all of
the evidence and determinations of credibility. [Ex parte Briseno, 135 S.W.3d 1, 8-9
(Tex. Crim. App. 2004).]

If the social purposes served by the death penalty—retribution and

deterrence—are not strong enough to justify the application of capital punishment to
mentally retarded offenders, does the cause of the mental retardation matter? Are
persons who were born developmentally challenged and manifest signs of their mental
retardation before the age of 18 any less culpable or deterrable than persons whose
mental retardation results from physical injury after the age of 18? Is the Texas court
correct that the adaptive skills listed in the AAMR definition do not adequately account
for a mentally retarded person’s criminal culpability? Would the different focus produce
different results on the question of mental retardation?

Pages 471-72 – Delete Note 4 and insert new case after end of Note 6 on page 472:
 ROPER v. SIMMONS
Supreme Court of the United States
543 U.S. 551 (2005)
JUSTICE KENNEDY delivered the opinion of the Court. This case requires us to
address, for the second time in a decade and a half, whether it is permissible under the
Eighth and Fourteenth Amendments to the Constitution of the United States to execute a
juvenile offender who was older than 15 but younger than 18 when he committed a
capital crime. In Stanford v. Kentucky, 492 U.S. 361 (1989), a divided Court rejected the
proposition that the Constitution bars capital punishment for juvenile offenders in this
age group. We reconsider the question.
I
At the age of 17, when he was still a junior in high school, Christopher
Simmons, the respondent here, committed murder. About nine months later, after he had
turned 18, he was tried and sentenced to death. There is little doubt that Simmons was the
instigator of the crime. Before its commission Simmons said he wanted to murder
someone. In chilling, callous terms he talked about his plan, discussing it for the most
part with two friends, Charles Benjamin and John Tessmer, then aged 15 and 16
respectively. Simmons proposed to commit burglary and murder by breaking and
entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his
friends they could “get away with it” because they were minors.
The three met at about 2 a.m. on the night of the murder, but Tessmer left
before the other two set out. (The State later charged Tessmer with conspiracy, but
dropped the charge in exchange for his testimony against Simmons.) Simmons and
Benjamin entered the home of the victim, Shirley Crook, after reaching through an open
window and unlocking the back door. Simmons turned on a hallway light. Awakened,
Mrs. Crook called out, “Who’s there?” In response Simmons entered Mrs. Crook’s
bedroom, where he recognized her from a previous car accident involving them both.
Simmons later admitted this confirmed his resolve to murder her.
Using duct tape to cover her eyes and mouth and bind her hands, the two
perpetrators put Mrs. Crook in her minivan and drove to a state park. They reinforced the
bindings, covered her head with a towel, and walked her to a railroad trestle spanning the
Meramec River. There they tied her hands and feet together with electrical wire, wrapped
her whole face in duct tape and threw her from the bridge, drowning her in the waters
below.
By the afternoon of September 9, Steven Crook had returned home from an
overnight trip, found his bedroom in disarray, and reported his wife missing. On the same
afternoon fishermen recovered the victim’s body from the river. Simmons, meanwhile,
was bragging about the killing, telling friends he had killed a woman “because the bitch
seen my face.”
The next day, after receiving information of Simmons’ involvement, police
arrested him at his high school and took him to the police station in Fenton, Missouri.
They read him his Miranda rights. Simmons waived his right to an attorney and agreed to
answer questions. After less than two hours of interrogation, Simmons confessed to the
murder and agreed to perform a videotaped reenactment at the crime scene.
The State charged Simmons with burglary, kidnaping, stealing, and murder in
the first degree. As Simmons was 17 at the time of the crime, he was outside the criminal
jurisdiction of Missouri’s juvenile court system. See Mo. Rev. Stat. §§211.021 (2000)
and 211.031 (Supp. 2003). He was tried as an adult. At trial the State introduced
Simmons’ confession and the videotaped reenactment of the crime, along with testimony
that Simmons discussed the crime in advance and bragged about it later. The defense
called no witnesses in the guilt phase. The jury having returned a verdict of murder, the
trial proceeded to the penalty phase.
The State sought the death penalty. As aggravating factors, the State submitted
that the murder was committed for the purpose of receiving money; was committed for
the purpose of avoiding, interfering with, or preventing lawful arrest of the defendant;
and involved depravity of mind and was outrageously and wantonly vile, horrible, and
inhuman. The State called Shirley Crook’s husband, daughter, and two sisters, who
presented moving evidence of the devastation her death had brought to their lives.
In mitigation Simmons’ attorneys first called an officer of the Missouri juvenile
justice system, who testified that Simmons had no prior convictions and that no previous
charges had been filed against him. Simmons’ mother, father, two younger half brothers,
a neighbor, and a friend took the stand to tell the jurors of the close relationships they had
formed with Simmons and to plead for mercy on his behalf. Simmons’ mother, in
particular, testified to the responsibility Simmons demonstrated in taking care of his two
younger half brothers and of his grandmother and to his capacity to show love for them.
During closing arguments, both the prosecutor and defense counsel addressed
Simmons’ age, which the trial judge had instructed the jurors they could consider as a
mitigating factor. Defense counsel reminded the jurors that juveniles of Simmons’ age
cannot drink, serve on juries, or even see certain movies, because “the legislatures have
wisely decided that individuals of a certain age aren’t responsible enough.” Defense
counsel argued that Simmons’ age should make “a huge difference to [the jurors] in
deciding just exactly what sort of punishment to make.” In rebuttal, the prosecutor gave
the following response: “Age, he says. Think about age. Seventeen years old. Isn’t that
scary? Doesn’t that scare you? Mitigating? Quite the contrary I submit. Quite the
contrary.”
The jury recommended the death penalty after finding the State had proved
each of the three aggravating factors submitted to it. Accepting the jury’s
recommendation, the trial judge imposed the death penalty.
Simmons obtained new counsel, who moved in the trial court to set aside the
conviction and sentence. One argument was that Simmons had received ineffective
assistance at trial. To support this contention, the new counsel called as witnesses
Simmons’ trial attorney, Simmons’ friends and neighbors, and clinical psychologists who
had evaluated him.
 Part of the submission was that Simmons was “very immature,” “very
impulsive,” and “very susceptible to being manipulated or influenced.” The experts
testified about Simmons’ background including a difficult home environment and
dramatic changes in behavior, accompanied by poor school performance in adolescence.
Simmons was absent from home for long periods, spending time using alcohol and drugs
with other teenagers or young adults. The contention by Simmons’ postconviction
counsel was that these matters should have been established in the sentencing
proceeding….
[After Simmons lost on earyly state and federal appeals] this Court held that
the Eighth and Fourteenth Amendments prohibit the execution of a mentally retarded
person. Atkins v. Virginia, 536 U.S. 304 (2002). Simmons filed a new petition for state
postconviction relief, arguing that the reasoning of Atkins established that the
Constitution prohibits the execution of a juvenile who was under 18 when the crime was
committed.
The Missouri Supreme Court agreed. State ex rel. Simmons v. Roper, 112 S. W.
3d 397 (2003) (en banc). It held that since Stanford,
a national consensus has developed against the execution of juvenile
offenders, as demonstrated by the fact that eighteen states now bar such
executions for juveniles, that twelve other states bar executions altogether,
that no state has lowered its age of execution below 18 since Stanford, that
five states have legislatively or by case law raised or established the
minimum age at 18, and that the imposition of the juvenile death penalty
has become truly unusual over the last decade. Id. at 399.
On this reasoning it set aside Simmons’ death sentence and resentenced him to “life
imprisonment without eligibility for probation, parole, or release except by act of the
Governor.” Id., at 413.
We granted certiorari and now affirm.

II
… The prohibition against “cruel and unusual punishments,” like other
expansive language in the Constitution, must be interpreted according to its text, by
considering history, tradition, and precedent, and with due regard for its purpose and
function in the constitutional design. To implement this framework we have established
the propriety and affirmed the necessity of referring to “the evolving standards of
decency that mark the progress of a maturing society” to determine which punishments
are so disproportionate as to be cruel and unusual. Trop v. Dulles, 356 U.S. 86, 100—101
(1958) (plurality opinion).
 In Thompson v. Oklahoma, 487 U.S. 815 (1988), a plurality of the Court
determined that our standards of decency do not permit the execution of any offender
under the age of 16 at the time of the crime. Id., at 818—838 (opinion of Stevens, J.,
joined by Brennan, Marshall, and Blackmun, JJ.). The plurality opinion explained that no
death penalty State that had given express consideration to a minimum age for the death
penalty had set the age lower than 16. The plurality also observed that “[t]he conclusion
that it would offend civilized standards of decency to execute a person who was less than
16 years old at the time of his or her offense is consistent with the views that have been
expressed by respected professional organizations, by other nations that share our Anglo-
American heritage, and by the leading members of the Western European community.”
Id., at 830. The opinion further noted that juries imposed the death penalty on offenders
under 16 with exceeding rarity; the last execution of an offender for a crime committed
under the age of 16 had been carried out in 1948, 40 years prior.
Bringing its independent judgment to bear on the permissibility of the death
penalty for a 15-year-old offender, the Thompson plurality stressed that “[t]he reasons
why juveniles are not trusted with the privileges and responsibilities of an adult also
explain why their irresponsible conduct is not as morally reprehensible as that of an
adult.” Id., at 835. According to the plurality, the lesser culpability of offenders under 16
made the death penalty inappropriate as a form of retribution, while the low likelihood
that offenders under 16 engaged in “the kind of cost-benefit analysis that attaches any
weight to the possibility of execution” made the death penalty ineffective as a means of
deterrence. Id., at 836—838.…
The next year, in Stanford v. Kentucky, 492 U.S. 361 (1989), the Court, over a
dissenting opinion joined by four Justices, referred to contemporary standards of decency
in this country and concluded the Eighth and Fourteenth Amendments did not proscribe
the execution of juvenile offenders over 15 but under 18. The Court noted that 22 of the
37 death penalty States permitted the death penalty for 16-year-old offenders, and,
among these 37 States, 25 permitted it for 17-year-old offenders. These numbers, in the
Court’s view, indicated there was no national consensus “sufficient to label a particular
punishment cruel and unusual.” Id., at 370—371. A plurality of the Court also
“emphatically reject[ed]” the suggestion that the Court should bring its own judgment to
bear on the acceptability of the juvenile death penalty. Id., at 377—378 (opinion of
Scalia, J., joined by Rehnquist, C. J., and White and Kennedy, JJ.).…
[The Court then reviewed the Atkins decision.]
Just as the Atkins Court reconsidered the issue decided in Penry, we now
reconsider the issue decided in Stanford. The beginning point is a review of objective
indicia of consensus, as expressed in particular by the enactments of legislatures that
have addressed the question. This data gives us essential instruction. We then must
determine, in the exercise of our own independent judgment, whether the death penalty is
a disproportionate punishment for juveniles.
III
 The evidence of national consensus against the death penalty for juveniles is
similar, and in some respects parallel, to the evidence Atkins held sufficient to
demonstrate a national consensus against the death penalty for the mentally retarded.
When Atkins was decided, 30 States prohibited the death penalty for the mentally
retarded. This number comprised 12 that had abandoned the death penalty altogether, and
18 that maintained it but excluded the mentally retarded from its reach. By a similar
calculation in this case, 30 States prohibit the juvenile death penalty, comprising 12 that
have rejected the death penalty altogether and 18 that maintain it but, by express
provision or judicial interpretation, exclude juveniles from its reach. Atkins emphasized
that even in the 20 States without formal prohibition, the practice of executing the
mentally retarded was infrequent. Since Penry, only five States had executed offenders
known to have an IQ under 70. 536 U.S., at 316. In the present case, too, even in the 20
States without a formal prohibition on executing juveniles, the practice is infrequent.
Since Stanford, six States have executed prisoners for crimes committed as juveniles. In
the past 10 years, only three have done so: Oklahoma, Texas, and Virginia. In December
2003 the Governor of Kentucky decided to spare the life of Kevin Stanford, and
commuted his sentence to one of life imprisonment without parole, with the declaration
that “ ‘[w]e ought not be executing people who, legally, were children.’ ” Lexington
Herald Leader, Dec. 9, 2003, p. B3. By this act the Governor ensured Kentucky would
not add itself to the list of States that have executed juveniles within the last 10 years
even by the execution of the very defendant whose death sentence the Court had upheld
in Stanford v. Kentucky.
There is, to be sure, at least one difference between the evidence of consensus
in Atkins and in this case. Impressive in Atkins was the rate of abolition of the death
penalty for the mentally retarded. Sixteen States that permitted the execution of the
mentally retarded at the time of Penry had prohibited the practice by the time we heard
Atkins. By contrast, the rate of change in reducing the incidence of the juvenile death
penalty, or in taking specific steps to abolish it, has been slower. Five States that allowed
the juvenile death penalty at the time of Stanford have abandoned it in the intervening 15
years–four through legislative enactments and one through judicial decision.
Though less dramatic than the change from Penry to Atkins (“telling,” to
borrow the word Atkins used to describe this difference, 536 U.S., at 315, n. 18), we still
consider the change from Stanford to this case to be significant. As noted in Atkins, with
respect to the States that had abandoned the death penalty for the mentally retarded since
Penry, “[i]t is not so much the number of these States that is significant, but the
consistency of the direction of change.” 536 U.S., at 315. In particular we found it
significant that, in the wake of Penry, no State that had already prohibited the execution
of the mentally retarded had passed legislation to reinstate the penalty. The number of
States that have abandoned capital punishment for juvenile offenders since Stanford is
smaller than the number of States that abandoned capital punishment for the mentally
retarded after Penry; yet we think the same consistency of direction of change has been
demonstrated. Since Stanford, no State that previously prohibited capital punishment for
juveniles has reinstated it. This fact, coupled with the trend toward abolition of the
juvenile death penalty, carries special force in light of the general popularity of anticrime
legislation, and in light of the particular trend in recent years toward cracking down on
juvenile crime in other respects, see H. Snyder & M. Sickmund, National Center for
Juvenile Justice, Juvenile Offenders and Victims: 1999 National Report 89, 133 (Sept.
1999); Scott & Grisso, The Evolution of Adolescence: A Developmental Perspective on
Juvenile Justice Reform, 88 J. Crim. L. & C. 137, 148 (1997). Any difference between
this case and Atkins with respect to the pace of abolition is thus counterbalanced by the
consistent direction of the change.
The slower pace of abolition of the juvenile death penalty over the past 15
years, moreover, may have a simple explanation. When we heard Penry, only two death
penalty States had already prohibited the execution of the mentally retarded. When we
heard Stanford, by contrast, 12 death penalty States had already prohibited the execution
of any juvenile under 18, and 15 had prohibited the execution of any juvenile under 17. If
anything, this shows that the impropriety of executing juveniles between 16 and 18 years
of age gained wide recognition earlier than the impropriety of executing the mentally
retarded. In the words of the Missouri Supreme Court: “It would be the ultimate in irony
if the very fact that the inappropriateness of the death penalty for juveniles was broadly
recognized sooner than it was recognized for the mentally retarded were to become a
reason to continue the execution of juveniles now that the execution of the mentally
retarded has been barred.” 112 S. W. 3d, at 408, n. 10.
Petitioner cannot show national consensus in favor of capital punishment for
juveniles but still resists the conclusion that any consensus exists against it. Petitioner
supports this position with, in particular, the observation that when the Senate ratified the
International Covenant on Civil and Political Rights (ICCPR), Dec. 19, 1966, 999 U. N.
T. S. 171 (entered into force Mar. 23, 1976), it did so subject to the President’s proposed
reservation regarding Article 6(5) of that treaty, which prohibits capital punishment for
juveniles. This reservation at best provides only faint support for petitioner’s argument.
First, the reservation was passed in 1992; since then, five States have abandoned capital
punishment for juveniles. Second, Congress considered the issue when enacting the
Federal Death Penalty Act in 1994, and determined that the death penalty should not
extend to juveniles. See 18 U.S.C. § 3591. The reservation to Article 6(5) of the ICCPR
provides minimal evidence that there is not now a national consensus against juvenile
executions.
As in Atkins, the objective indicia of consensus in this case–the rejection of the
juvenile death penalty in the majority of States; the infrequency of its use even where it
remains on the books; and the consistency in the trend toward abolition of the
practice–provide sufficient evidence that today our society views juveniles, in the words
Atkins used respecting the mentally retarded, as “categorically less culpable than the
average criminal.” 536 U.S., at 316.
A majority of States have rejected the imposition of the death penalty on
juvenile offenders under 18, and we now hold this is required by the Eighth
Amendment….
Because the death penalty is the most severe punishment, the Eighth
Amendment applies to it with special force.… There are a number of crimes that beyond
question are severe in absolute terms, yet the death penalty may not be imposed for their
commission. Coker v. Georgia, 433 U.S. 584 (1977) (rape of an adult woman); Enmund
v. Florida, 458 U.S. 782 (1982) (felony murder where defendant did not kill, attempt to
kill, or intend to kill). The death penalty may not be imposed on certain classes of
offenders, such as juveniles under 16, the insane, and the mentally retarded, no matter
how heinous the crime. Thompson v. Oklahoma, supra; Ford v. Wainwright, 477 U.S.
399 (1986); Atkins, supra. These rules vindicate the underlying principle that the death
penalty is reserved for a narrow category of crimes and offenders.
Three general differences between juveniles under 18 and adults demonstrate
that juvenile offenders cannot with reliability be classified among the worst offenders.
First, as any parent knows and as the scientific and sociological studies respondent and
his amici cite tend to confirm, “[a] lack of maturity and an underdeveloped sense of
responsibility are found in youth more often than in adults and are more understandable
among the young. These qualities often result in impetuous and ill-considered actions and
decisions.” Johnson v. Texas, 509 U.S. 350, 367 (1993); see also Eddings v. Oklahoma,
455 U.S. 104, 115—116 (1982) (“Even the normal 16-year-old customarily lacks the
maturity of an adult”). It has been noted that “adolescents are overrepresented
statistically in virtually every category of reckless behavior.” Arnett, Reckless Behavior
in Adolescence: A Developmental Perspective, 12 Developmental Review 339 (1992). In
recognition of the comparative immaturity and irresponsibility of juveniles, almost every
State prohibits those under 18 years of age from voting, serving on juries, or marrying
without parental consent.
The second area of difference is that juveniles are more vulnerable or
susceptible to negative influences and outside pressures, including peer pressure.
Eddings, supra, at 115 (“[Y]outh is more than a chronological fact. It is a time and
condition of life when a person may be most susceptible to influence and to
psychological damage”). This is explained in part by the prevailing circumstance that
juveniles have less control, or less experience with control, over their own environment.
See Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental
Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am.
Psychologist 1009, 1014 (2003) (hereinafter Steinberg & Scott) (“[A]s legal minors,
[juveniles] lack the freedom that adults have to extricate themselves from a criminogenic
setting”).
The third broad difference is that the character of a juvenile is not as well
formed as that of an adult. The personality traits of juveniles are more transitory, less
fixed. See generally E. Erikson, Identity: Youth and Crisis (1968).
These differences render suspect any conclusion that a juvenile falls among the
worst offenders. The susceptibility of juveniles to immature and irresponsible behavior
means “their irresponsible conduct is not as morally reprehensible as that of an adult.”
Thompson, supra, at 835 (plurality opinion). Their own vulnerability and comparative
lack of control over their immediate surroundings mean juveniles have a greater claim
than adults to be forgiven for failing to escape negative influences in their whole
environment. The reality that juveniles still struggle to define their identity means it is
less supportable to conclude that even a heinous crime committed by a juvenile is
evidence of irretrievably depraved character. From a moral standpoint it would be
misguided to equate the failings of a minor with those of an adult, for a greater possibility
exists that a minor’s character deficiencies will be reformed. Indeed, “[t]he relevance of
youth as a mitigating factor derives from the fact that the signature qualities of youth are
transient; as individuals mature, the impetuousness and recklessness that may dominate
in younger years can subside.” Johnson, supra, at 368; see also Steinberg & Scott 1014
(“For most teens, [risky or antisocial] behaviors are fleeting; they cease with maturity as
individual identity becomes settled. Only a relatively small proportion of adolescents
who experiment in risky or illegal activities develop entrenched patterns of problem
behavior that persist into adulthood”).
In Thompson, a plurality of the Court recognized the import of these
characteristics with respect to juveniles under 16, and relied on them to hold that the
Eighth Amendment prohibited the imposition of the death penalty on juveniles below
that age. We conclude the same reasoning applies to all juvenile offenders under 18.
Once the diminished culpability of juveniles is recognized, it is evident that the
penological justifications for the death penalty apply to them with lesser force than to
adults…. As for retribution, we remarked in Atkins that “[i]f the culpability of the
average murderer is insufficient to justify the most extreme sanction available to the
State, the lesser culpability of the mentally retarded offender surely does not merit that
form of retribution.” 536 U.S., at 319. The same conclusions follow from the lesser
culpability of the juvenile offender. Whether viewed as an attempt to express the
community’s moral outrage or as an attempt to right the balance for the wrong to the
victim, the case for retribution is not as strong with a minor as with an adult. Retribution
is not proportional if the law’s most severe penalty is imposed on one whose culpability
or blameworthiness is diminished, to a substantial degree, by reason of youth and
immaturity.
As for deterrence, it is unclear whether the death penalty has a significant or
even measurable deterrent effect on juveniles, as counsel for the petitioner acknowledged
at oral argument. In general we leave to legislatures the assessment of the efficacy of
various criminal penalty schemes. Here, however, the absence of evidence of deterrent
effect is of special concern because the same characteristics that render juveniles less
culpable than adults suggest as well that juveniles will be less susceptible to deterrence.
In particular, as the plurality observed in Thompson, “[t]he likelihood that the teenage
offender has made the kind of cost-benefit analysis that attaches any weight to the
possibility of execution is so remote as to be virtually nonexistent.” 487 U.S., at 837. To
the extent the juvenile death penalty might have residual deterrent effect, it is worth
noting that the punishment of life imprisonment without the possibility of parole is itself
a severe sanction, in particular for a young person.
In concluding that neither retribution nor deterrence provides adequate
justification for imposing the death penalty on juvenile offenders, we cannot deny or
overlook the brutal crimes too many juvenile offenders have committed. Certainly it can
be argued, although we by no means concede the point, that a rare case might arise in
which a juvenile offender has sufficient psychological maturity, and at the same time
demonstrates sufficient depravity, to merit a sentence of death. Indeed, this possibility is
the linchpin of one contention pressed by petitioner and his amici. They assert that even
assuming the truth of the observations we have made about juveniles’ diminished
culpability in general, jurors nonetheless should be allowed to consider mitigating
arguments related to youth on a case-by-case basis, and in some cases to impose the
death penalty if justified. A central feature of death penalty sentencing is a particular
assessment of the circumstances of the crime and the characteristics of the offender. The
system is designed to consider both aggravating and mitigating circumstances, including
youth, in every case. Given this Court’s own insistence on individualized consideration,
petitioner maintains that it is both arbitrary and unnecessary to adopt a categorical rule
barring imposition of the death penalty on any offender under 18 years of age.
We disagree. The differences between juvenile and adult offenders are too
marked and well understood to risk allowing a youthful person to receive the death
penalty despite insufficient culpability. An unacceptable likelihood exists that the
brutality or cold-blooded nature of any particular crime would overpower mitigating
arguments based on youth as a matter of course, even where the juvenile offender’s
objective immaturity, vulnerability, and lack of true depravity should require a sentence
less severe than death. In some cases a defendant’s youth may even be counted against
him. In this very case, as we noted above, the prosecutor argued Simmons’ youth was
aggravating rather than mitigating. While this sort of overreaching could be corrected by
a particular rule to ensure that the mitigating force of youth is not overlooked, that would
not address our larger concerns.
It is difficult even for expert psychologists to differentiate between the juvenile
offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile
offender whose crime reflects irreparable corruption. As we understand it, this difficulty
underlies the rule forbidding psychiatrists from diagnosing any patient under 18 as
having antisocial personality disorder, a disorder also referred to as psychopathy or
sociopathy, and which is characterized by callousness, cynicism, and contempt for the
feelings, rights, and suffering of others. American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders 701—706 (4th ed. text rev. 2000). If trained
psychiatrists with the advantage of clinical testing and observation refrain, despite
diagnostic expertise, from assessing any juvenile under 18 as having antisocial
personality disorder, we conclude that States should refrain from asking jurors to issue a
far graver condemnation–that a juvenile offender merits the death penalty. When a
juvenile offender commits a heinous crime, the State can exact forfeiture of some of the
most basic liberties, but the State cannot extinguish his life and his potential to attain a
mature understanding of his own humanity.
Drawing the line at 18 years of age is subject, of course, to the objections
always raised against categorical rules. The qualities that distinguish juveniles from
adults do not disappear when an individual turns 18. By the same token, some under 18
have already attained a level of maturity some adults will never reach. For the reasons we
have discussed, however, a line must be drawn. The plurality opinion in Thompson drew
the line at 16. In the intervening years the Thompson plurality’s conclusion that offenders
under 16 may not be executed has not been challenged. The logic of Thompson extends
to those who are under 18. The age of 18 is the point where society draws the line for
many purposes between childhood and adulthood. It is, we conclude, the age at which the
line for death eligibility ought to rest.
… To the extent Stanford was based on review of the objective indicia of
consensus that obtained in 1989, it suffices to note that those indicia have changed. It
should be observed, furthermore, that the Stanford Court should have considered those
States that had abandoned the death penalty altogether as part of the consensus against
the juvenile death penalty; a State’s decision to bar the death penalty altogether of
necessity demonstrates a judgment that the death penalty is inappropriate for all
offenders, including juveniles. Last, to the extent Stanford was based on a rejection of the
idea that this Court is required to bring its independent judgment to bear on the
proportionality of the death penalty for a particular class of crimes or offenders, it
suffices to note that this rejection was inconsistent with prior Eighth Amendment
decisions, Thompson, Enmund, [and] Coker and is now inconsistent with] Atkins. …
IV
Our determination that the death penalty is disproportionate punishment for
offenders under 18 finds confirmation in the stark reality that the United States is the
only country in the world that continues to give official sanction to the juvenile death
penalty. This reality does not become controlling, for the task of interpreting the Eighth
Amendment remains our responsibility. Yet at least from the time of the Court’s decision
in Trop, the Court has referred to the laws of other countries and to international
authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of
“cruel and unusual punishments.” 356 U.S., at 102—103 (plurality opinion) (“The
civilized nations of the world are in virtual unanimity that statelessness is not to be
imposed as punishment for crime”); see also Atkins, supra, at 317, n. 21 (recognizing that
“within the world community, the imposition of the death penalty for crimes committed
by mentally retarded offenders is overwhelmingly disapproved”); Thompson, supra, at
830—831, and n. 31 (plurality opinion) (noting the abolition of the juvenile death penalty
“by other nations that share our Anglo-American heritage, and by the leading members of
the Western European community,” and observing that “[w]e have previously recognized
the relevance of the views of the international community in determining whether a
punishment is cruel and unusual”); Enmund, supra, at 796—797, n. 22 (observing that
“the doctrine of felony murder has been abolished in England and India, severely
restricted in Canada and a number of other Commonwealth countries, and is unknown in
continental Europe”); Coker, supra, at 596, n. 10 (plurality opinion) (“It is … not
irrelevant here that out of 60 major nations in the world surveyed in 1965, only 3 retained
the death penalty for rape where death did not ensue”).
… Article 37 of the United Nations Convention on the Rights of the Child,
which every country in the world has ratified save for the United States and Somalia,
contains an express prohibition on capital punishment for crimes committed by juveniles
under 18. United Nations Convention on the Rights of the Child, Art. 37, Nov. 20, 1989,
1577 U. N. T. S. 3, 28 I. L. M. 1448, 1468—1470 (entered into force Sept. 2, 1990). No
ratifying country has entered a reservation to the provision prohibiting the execution of
juvenile offenders. Parallel prohibitions are contained in other significant international
covenants. See ICCPR, Art. 6(5), 999 U. N. T. S., at 175 (prohibiting capital punishment
for anyone under 18 at the time of offense) (signed and ratified by the United States
subject to a reservation regarding Article 6(5).
Respondent and his amici have submitted, and petitioner does not contest, that
only seven countries other than the United States have executed juvenile offenders since
1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo,
and China. Since then each of these countries has either abolished capital punishment for
juveniles or made public disavowal of the practice. In sum, it is fair to say that the United
States now stands alone in a world that has turned its face against the juvenile death
penalty.
Though the international covenants prohibiting the juvenile death penalty are of
more recent date, it is instructive to note that the United Kingdom abolished the juvenile
death penalty before these covenants came into being. The United Kingdom’s experience
bears particular relevance here in light of the historic ties between our countries and in
light of the Eighth Amendment’s own origins. The Amendment was modeled on a
parallel provision in the English Declaration of Rights of 1689, which provided:
“[E]xcessive Bail ought not to be required nor excessive Fines imposed; nor cruel and
unusuall Punishments inflicted.” 1 W. & M., ch. 2, §10, in 3 Eng. Stat. at Large 441
(1770); see also Trop, supra, at 100 (plurality opinion). As of now, the United Kingdom
has abolished the death penalty in its entirety; but, decades before it took this step, it
recognized the disproportionate nature of the juvenile death penalty; and it abolished that
penalty as a separate matter. In 1930 an official committee recommended that the
minimum age for execution be raised to 21. House of Commons Report from the Select
Committee on Capital Punishment (1930), 193, p. 44. Parliament then enacted the
Children and Young Person’s Act of 1933, 23 Geo. 5, ch. 12, which prevented execution
of those aged 18 at the date of the sentence. And in 1948, Parliament enacted the
Criminal Justice Act, 11 & 12 Geo. 6, ch. 58, prohibiting the execution of any person
under 18 at the time of the offense. In the 56 years that have passed since the United
Kingdom abolished the juvenile death penalty, the weight of authority against it there,
and in the international community, has become well established.
It is proper that we acknowledge the overwhelming weight of international
opinion against the juvenile death penalty, resting in large part on the understanding that
the instability and emotional imbalance of young people may often be a factor in the
crime. The opinion of the world community, while not controlling our outcome, does
provide respected and significant confirmation for our own conclusions.
… It does not lessen our fidelity to the Constitution or our pride in its origins to
acknowledge that the express affirmation of certain fundamental rights by other nations
and peoples simply underscores the centrality of those same rights within our own
heritage of freedom….
The Eighth and Fourteenth Amendments forbid imposition of the death penalty
on offenders who were under the age of 18 when their crimes were committed. The
judgment of the Missouri Supreme Court setting aside the sentence of death imposed
upon Christopher Simmons is affirmed.
Chapter 8 – Defensive Force, Necessity, and Duress

Page 527 – Add after Note 2:

A REPRISE ON THE REASONABLE PERSON AND CULTURE

Recall the discussion of “Cultural Norms and the Reasonable Person from” p.
349, in the context of manslaughter. Obviously, much of the case law on self-defense,
from Leidholm to Goetz, can be described under this category as well if we use a broad
enough definition of “culture.” One form that so-called cultural defenses have taken is
that recent immigrants should be excused from liability for violating American laws if
they are still acculturated to the legal norms of their home countries. These claims,
which have been almost infirmly rejected by the courts, have tended to focus on violence
against women, and many of them have been raised by Hmong immigrant men charged
with kidnapping or sexual assault who are argue that they were acting according to the
principles of “zij poj niam” or "marriage by capture.”30 But other cases in which
immigrant culture seems to play a role raise very different issues. The following factual
narrative involving a Hmong immigrant, drawn from journalistic accounts,31 is about a
much publicized recent murder case in Wisconsin in which questions of cultural
difference were prominent. But in reading it, be wary of the popular assumption that
there is such a distinct thing as a “cultural defense,” as opposed to the more conventional
principle that in any “reasonable person” question, we must attend to all the
circumstances of the defendants or others’ actions and perceptions.

THE CASE OF STATE v. CHAI VANG

Chai Vang, 36, was an avid hunter and fisher, so with the hunting season in
Minnesota having drawn to a close, he and a few hunting buddies made the trip to
Hayward, Wisconsin, where the nine-day hunting season for whitetail deer had just
begun. On November 21, 2004, Vang was separated from his hunting partners and lost
his way. Vang asked other hunters for directions, and they guided him to a road. Public
and private land in this area of Wisconsin is interspersed, with public land encircling
30
For a review of these claims as well as others raised by members of several Asian, Middle Eastern
national or ethnic groups, see Doriane Lambelet Coleman, Individualizing Justice Through
Multiculturalism: The Liberals' Dilemma, 96 Columbia L. Rev. 1093-1167 (1996):
31
The major sources are Curt Brown & Randy Furst, A Conflicting Portrait; “We send our condolences to
the families, and all I can do is ask God to be with us all”; Mai Vang, sister of Chai Soua Vang,
Minneapolis Star Tribune, December 5, 2004, at 1A; Robert Imrie, Suspect’s family, officials bewildered at
killings of six hunters, Associated Press, November 23, 2004; Tom Kenworthy, Wis. suspect says he was
taunted, USA Today, November 24 2004, at 3A.
private land in many places. Somehow, Vang ended up in a hunting stand on 300 acres of
private land. According to Vang, he was approached by Terry Willers, 47, who asked
Vang why he was on private property. Willers called his hunting group on his walkie-
talkie, and five more hunters arrived on all-terrain vehicles, some of who surrounded
Vang and called him “gook” and “chink.” Vang replied that he had not seen any signs
indicating that it was private property, and began to walk away. Vang told officials that
when he was about 100 feet away, Willers shouted at him: “What did you say?” Vang
denied saying anything, but Willers accused him of making obscene gestures. Vang again
insisted that he had not said anything, at which point Willers pointed his rifle at him.
Vang dropped to a crouch as Willers fired one shot, which landed thirty to forty feet
behind Vang. Willers and Lauren Hesebeck, 48, who survived the events, told authorities
a different story. According to them, “at no time did anyone touch the defendant, make
any threatening gestures or threaten to shoot the defendant.” Upon finding Vang in the
hunting stand, Willers told Vang to leave, and was joined by landowner Robert Crotteau,
42, who cursed at Vang and threatened to report him to the police for trespassing. As
Vang walked down the path to leave, he suddenly turned and pointed his rifle at the
hunters. Willers held his rifle in front of him but did not take aim, and continued to yell
at Vang to get off the property. Willers and Hesebeck say it was at this point that Vang
began shooting.

There is little dispute over what happened from this point forth. Vang shot at
Willers, and then began shooting at the others, all white hunters. Two or three men fell to
the ground, and when two others started to run away, Vang chased them down and shot at
them several times. In an affidavit, Vang acknowledged that he shot the men in the back
as they screamed, “Help me, help me,” and that neither of them had a gun. One of the
hunters radioed the remainder of his hunting party for help, saying “we’ve been shot,”
and two more ATVs arrived. The first ATV helped the injured and left, while the second
ATV, carrying two people, drove past Vang and then stopped ten to fifteen feet away.
Vang claims that one of the people on the ATV had a gun, although both the hunters and
the police deny this. Vang shot at the second ATV three to four times, and both hunters
fell off the ATV. Vang then ran back to where the shooting had initially started, where he
saw one of the hunters still standing, shouted, “You’re not dead yet?” and then fired
another shot at the man. After firing that last shot, Vang fled the scene because “he
decided that he did not want to shoot anybody else,” and threw the remaining
ammunition in a swamp. After fleeing, Vang sought help from another hunter, who drove
him out of the woods. Vang was arrested by Division of Natural Resources warden
Jeremy Peery. At the time of his arrest, he was in possession of an unloaded SKS
7.62mm semiautomatic rifle. The rifle can hold twenty rounds of ammunition in its
magazine, and can fire one shot with each pull of the trigger. The magazine was empty
when the police found it.

Four of the eight hunters were shot in the back; six died, and the two others
injured. Authorities found only one gun among the eight hunters. Landowner Crotteau;
his son Joey Crotteau, 20; Al Laski, 42; Mark Roidt, 28; and Jessica Willers, 27 were
pronounced dead at the scene. Denny Drew, 55 passed away a day later at St. Joseph’s
Hospital in Marshfield. Willers (Jessica’s father) and Lauren Hesebeck, 48 were injured.
All of the victims were from the Rice Lake region, and were part of a group of fifteen
who had made the trip up to the 80-acre property for the opening weekend of the
whitetail deer gun season.

There is a history of conflict between white and Hmong hunters in this upper-
Midwest region. The region has the highest concentration of Hmong in the United States,
with 24,000 Hmong migrating to St. Paul, Minnesota from Laos after the Vietnam War.
The Hmong have a strong tradition of hunting and fishing, and white hunters have
complained that Hmong hunters refuse to comply with hunting regulations and to
recognize the distinction between private and public land. But state wildlife officials say
that although the Hmong have long been accused of unethical hunting and fishing
practices, no one group has been more likely than another to violate hunting and
poaching regulations. One factor in local resentment toward the Hmong is that many
people do not know that the Hmong were American allies during the Vietnam War and
were given refuge in the United States for that reason, but the increased influx of Hmong
in the summer of 2004 from a Thai refugee camp, as well as some crimes committed by
the refugees, also likely contributed to increased hostility and tension. In May 2004, a
Hmong St. Paul police officer was charged in a drive-by shooting; in 2003, a Hmong
woman was convicted of killing her husband because he planned to take a second wife;
and numerous Hmong anglers have been cited for poaching fish (Vang among them).
Many Hmong residents are fearful of the backlash for Vang’s actions: the Lao Family
Community of Minnesota recorded thirty-five to forty concerned calls on the day after
the shootings.

Vang was born on September 24, 1968 in the Sayaboury Province in northwest
Laos. Vang grew up the second of six children and the oldest of three sons in a mountain
community with 100 families and no electricity, plumbing, or schools. Although it was a
farming community, during Vang’s childhood years, agriculture was interspersed with
fighting to block the Ho Chi Minh trail against Communist forces. In 1975, Vang and his
extended family left Laos for a refugee camp in Thailand. Vang’s family moved to St.
Paul, Minnesota in 1980, and then to Stockton, California in 1985. Vang quickly
established himself as a leader in Stockton. He started the Hmong Club at the Franklin
High School, and became its first president. He helped provide security at the annual
Hmong New Year celebration, was captain of the community soccer team, and coached
younger kids in soccer and karate at the Lao Family Community Center. When some
other kids tried to get in a fight with Vang’s younger cousin, Chue Vang, Chai told Chue
not to fight, explaining that “We don’t believe in violence.” Bee Vang, the Lao/Hmong
bilingual outreach liaison for the Stockton Unified School District, said of Vang: “He just
had a big heart for the community. I was totally shocked when I saw it on the news. I
couldn’t believe it happened. He was a very reasonable guy. Even in high school, he was
the most mature Hmong student.”

Vang graduated from Franklin High School in 1987, and attended San Joaquin
Delta College, a community college in Stockton. Vang then spent six years in the
California National Guard, where he served as a patient administration specialist and
earned his sharpshooter’s badge, an expert qualification badge for the hand grenade, and
a Good Conduct medal. After leaving the National Guard, he worked as a teacher’s aide
for disabled students and as a truck driver, and volunteered at the Lao Family
Community Center. In 1999, Vang moved back to St. Paul for the lower cost of living
and in search of a better job. Vang led a quiet life in St. Paul, playing soccer and raising
roosters in his barn. He worked two jobs and paid two mortgages to support ten children,
in addition to his extended family.

Vang had previous encounters with the law, ranging from a 2001 complaint about
a threatened gun assault on people in his home (he was briefly jailed but no charges were
filed) to fines for violating hunting fishing, and trespassing rules in 2001 and 2002.

Relatives and friends expressed shock and confusion at Vang’s arrest. Mai Vang,
Vang’s oldest sister, told of a caring brother:

He always shared what he had with me. Ever since we had our own families and
didn’t have a chance to come and visit one another, he would always take the time
to call and see how I was doing…[when my father died] I cried and missed my
father very much, but we knew we had Chai as the oldest son in the family, so he
would lead us. All of a sudden he is in this situation, and it seems like hope is
dying.

When Mai visited Chai in jail, she asked him why he hadn’t just walked away from the
hunters: “He said there were just too many people and he had to do what he did to
survive. All I know is that he is a very good brother and he would not just want to kill
anyone.” Sang Vang, Chai’s brother, describes him as “reasonable” and “a good family
man” and suggests that Chai was provoked. Dwayne Meier, the owner of the
Minneapolis apartment building where Vang used to live, said that “He was an
enthusiastic kind of guy, the kind of guy I thought would be successful in this world. So I
don’t know what happened.” Mai has received threatening calls, and Vang’s family has
moved out of its St. Paul home since the shootings.

Many of the region’s Hmong residents have quickly worked to distance

themselves from Vang, in fear of retaliation, as tensions ran high among white hunters.
Matt Bomback, a Roseville hunter, sought out reporters to tell them that Hmong hunt
deer at night, which is illegal, and take more than the legal limit of small game: “The
anger [among hunters] comes from people seeing poor hunting practices out there.” Chris
Peterson of Haugen, said: “I think he’s just trying to come up with a good story—they
shot first and I defended myself…I don’t think [Vang’s] story holds water. I know these
guys, and that’s not them.” Randy Hupper of Hagar City doubted that Vang would have
fired that many rounds in self-defense: “I think it’s just too bad they didn’t shoot him and
kill him and finish it right there.”

Blang Yand, the editor of FutureHmong, a Milwaukee-based magazine, protested

that “To associate the shooting with the Hmong community is absurd. You hold the
person accountable—not the group…Why lump everything together? We had Jeffrey
Dahmer right here in Milwaukee, and no one talked about it being a cultural issue.”
However, John Vang, a Hmong from St. Paul (no relation to Chai Vang), insists that
whites will always see it as a cultural issue. He says that he has hunted in Milwaukee for
twenty years and is well-versed in hunting laws and regulations, but has still been
harassed while hunting: in Mille Lacs County, a farmer set a dog on John when he
wandered too close to his land, and on a separate occasion, hunters fired in the air in his
direction when he was hunting pheasants; the shots hit corn stalks nearby. Regardless,
Hmong leaders held numerous news conferences in Minnesota in the days following the
attacks to offer condolences to the victims’ families and to condemn the shootings. Cha
Vang (also no relation to Chai Vang), one of the group’s leaders, pled: “We stand before
you as representatives of the greater law-abiding Hmong community to
unconditionally—unconditionally—condemn these atrocities…What happened in
Wisconsin is in no way representative of the Hmong people and what they stand for.”

Vang’s first court appearance lasted only six minutes and was held in the
basement classroom in the Sawyer County sheriff’s department. Sawyer County Circuit
Judge Norman Yackel presided over the case, which was prosecuted by Attorney General
Peg Lautenschlager. Vang was initially represented by state public defender James
McLaughlin, but later retained as counsel Steven Kohn and Jonathan Smith, two lawyers
with experience in profile cases: Kohn represented the inmate who killed serial killer
Jeffrey Dahmer ten years ago in a Wisconsin state prison, and Smith defended former
Green Bay Packers tight end Mark Chmura against sexual assault charges. Vang also
retained James Mentkowski, who has experience representing Hmong clients. Vang sat at
a folding table in handcuffs and with his ankles in shackles and was quiet except for
acknowledging that he understood the charges. Judge Yackel set the trial date for
September 12 and bail at $2.5 million dollars.

At trial, Vang entered a plea of not guilty, claiming that he acted in self-defense
in response to Willers’s shooting at him. During the trial, the prosecution presented
jailhouse calls and letters from Vang to a reporter for the Chicago Tribune. In them,
Vang said that he felt sorry about shooting some of the hunters, but said that the others
had deserved to be shot because they had called him racist names and threatened him. He
justified the killings by saying he was trying to “defend myself and my race…I feel that
this incident is happen because people are not able to [treat] others with respect like they
wanted to be treated, and [because of] hatred toward other people or race.” It was not the
first time Vang had run into such conflicts: when he hunted in the same area in 2001 and
2002, white hunters used racial slurs against him and falsely accused him of taking a deer
illegally. Regardless, hunting was good in that area, so Vang made the trip up again in
2004 with four friends and their sons. He said that just before waking up on the day of
the shootings, he had a prophetic dream that he was back in the jungles of Laos, where he
got into a gun battle with some Vietnamese soldiers: “I shot most of them and some
escape to get help,” he explained, and so he was caught and taken prisoner. “I almost
didn’t want to go hunt that day because I never have that kind of dream in my life.”

Jurors deliberated for three hours and on September 16, 2005 found Vang guilty
of six counts of first-degree intentional homicide and three counts of attempted murder.
He was sentenced to six consecutive life sentences with no chance of parole. Wisconsin
does not have the death penalty. The normal time period to appeal Vang has expired for
Vang, though he may yet seek some relief from the limitation.

Notes and Questions

1. Assume that the jurors in Vang’s trial were generally aware of these
circumstances; how might their awareness have influenced the verdict? How does this
information help us to understand and apply the reasonable person standard in self-
defense?

Page 492 – Add at end of Note 3, Defense of others:

California has now recognized the doctrine of “imperfect defense of others,”
which reduces intentional murder to voluntary manslaughter when the defendant
honestly, but mistakenly and unreasonably believes that the killing is necessary to save
others from deadly harm. People v. Randle, 35 Cal. 4th 987 (2005). The doctrine of
“imperfect self-defense,” discussed later in this chapter, is well-established, and the
California Supreme court saw no reason not to treat defense of others analogously.

Page 567 – Add at the end of Note 5:

Nevertheless, the mens rea elements of certain crimes may require the state to
disprove the existence of duress. Consider crimes which must be committed maliciously
or willfully. A defendant claiming duress could argue that he both knew about all the
circumstances of the crime and intended to commit the crime but did not commit the
crime with malice because he was acting under duress. What would be the practical
problems for a defendant claiming duress in such circumstances? Should the prosecution
be forced to bear the burden of proof on the duress issue?

Historically and at common law, duress has been an affirmative defense on which
the defendant bears the burden of proof; however, state legislatures and congress are free
to determine the content of any affirmative defenses, including duress, statutorily. The
drafters of the MPC, for example, shifted the burden of proof to the prosecution. MPC
§§ 1.12, 1.13(9)(c), 2.09.

In the federal system, the absence of common law duress caused courts to split on
the burden of proof issue. The Supreme Court recently responded to the mixed case law
by instructing courts to “effectuate the affirmative defense of duress as Congress may
have contemplated it in an offense-specific context”. Dixon v. United States, 548 U.S.
___ (2006). In other words, because the United States Code does not contain an
overarching duress provision which can be applied to all federal crimes and because
federal common law does not exist, federal courts must assign the duress burden of proof
for each crime based on what Congress would have wanted when they enacted the
criminal statute in question. Using this method, the Supreme Court assigned the burden
of proof to the defendant for crimes arising under the Safe Streets Act of 1968.
 Dixon bought multiple firearms at two gun shows, providing an incorrect address
and falsely stating that she was not under indictment for a felony. She was indicted and
convicted on one count of receiving a firearm while under indictment in violation of 18
U. S. C. §922(n) and eight counts of making false statements in connection with the
acquisition of a firearm in violation of §922(a)(6). At trial, she admitted that she knew
she was under indictment when she made the purchases and that she knew doing so was a
crime; her defense was that she acted under duress because her boyfriend threatened to
kill her or hurt her daughters if she did not buy the guns for him. The Court stated:
[T]he common law long required the defendant to bear the burden of
proving the existence of duress. Similarly, even where Congress has
enacted an affirmative defense in the proviso of a statute, the “settled rule
in this jurisdiction [is] that an indictment or other pleading ... need not
negative the matter of an exception made by a proviso or other distinct
clause ... and that it is incumbent on one who relies on such an exception
to set it up and establish it.” McKelvey v. United States, 260 U.S. 353 (1922); see
also United States v. Dickson, 15 Pet. 141, 165 (1841) (calling this "the general rule of
law which has always prevailed, and become consecrated almost as a maxim in the
interpretation of statutes"). Even though the Safe Streets Act does not mention the
defense of duress, we can safely assume that the 1968 Congress was familiar with both
the long-established common-law rule and the rule applied in McKelvey and that it would
have expected federal courts to apply a similar approach to any affirmative defense that
might be asserted as a justification or excuse for violating the new law.

This conclusion is surely more reasonable than petitioner's hypothesis that

[Congress acted in the context of federal law which shifted the burden of proof to the
prosecution]. Petitioner cites only one federal case decided before 1968 for the
proposition that it has been well established in federal law that the Government bears the
burden of disproving duress beyond a reasonable doubt. But that case involved a
defendant's claim that he "lacked the specific intent to defraud required by the statute for
the reason that he committed the offense under duress and coercion." Johnson v. United
States, 291 F.2d 150, 152 (C.A.8 1961). Thus, when the Court of Appeals explained that
"there is no burden upon the defendant to prove his defense of coercion," that statement is
best understood in context as a corollary to the by-then-unremarkable proposition that
"the burden of proof rests upon the Government to prove the defendant's guilt beyond a
reasonable doubt," ibid. Properly understood, Johnson provides petitioner little help in
her uphill struggle to prove that a dramatic shift in the federal common-law rule occurred
[before] the enactment of the Safe Streets Act in 1968.

Indeed, for us to be able to accept petitioner's proposition, we would need to find

an overwhelming consensus among federal courts that it is the Government's burden to
disprove the existence of duress beyond a reasonable doubt. The existence today of
disagreement among the Federal Courts of Appeals on this issue, however--the very
disagreement that caused us to grant certiorari in this case … --demonstrates that no such
consensus has ever existed…. Also undermining petitioner's argument is the fact that, in
1970, the National Commission on Reform of Federal Criminal Laws proposed that a
defendant prove the existence of duress by a preponderance of the evidence. See 1
Working Papers 278. Moreover, while there seem to be few, if any, … pre-1968 cases
placing the burden on a defendant to prove the existence of duress, or even discussing the
issue in any way, this lack of evidence does not help petitioner. The long-established
common-law rule is that the burden of proving duress rests on the defendant…
 It is for a similar reason that we give no weight to the publication of the Model
Penal Code in 1962. As petitioner notes, the Code would place the burden on the
government to disprove the existence of duress beyond a reasonable doubt. See Model
Penal Code § 1.12, 10A U.L.A. 88 (2001) (hereinafter Model Penal Code or Code)
(stating that each element of an offense must be proved beyond a reasonable doubt); §
1.13(9)(c), at 91 (defining as an element anything that negatives an excuse for the
conduct at issue); § 2.09, at 131- 132 (establishing affirmative defense of duress).
Petitioner argues that the Code reflects “well established” federal law as it existed at the
time. . . . But, as discussed above, no such consensus existed when Congress passed the
Safe Streets Act in 1968. And even if we assume Congress' familiarity with the Code and
the rule it would establish, there is no evidence that Congress endorsed the Code's views
or incorporated them into the Safe Streets Act.

In fact, the Act itself provides evidence to the contrary. Despite the Code’s
careful delineation of mental states, see Model Penal Code § 2.02, the Safe Streets Act
attached no explicit mens rea requirement to the crime [at issue in this case, the act] of
receiving a firearm while under indictment, [18 U.S.C.] § 924(a) (“Whoever violates any
provision of this chapter ... shall be fined not more than $5,000 or imprisoned not more
than five years, or both”). And when Congress amended the Act to impose a mens rea
requirement, it punished people who “willfully” violate the statute, a mental state that has
not been embraced by the Code, see Model Penal Code § 2.02(2) (defining “purposely,”
“knowingly,” “recklessly,” and “negligently”); Explanatory Note, p. 97 (“Though the
term ‘wilfully’ is not used in the definitions of crimes contained in the Code, its currency
and its existence in offenses outside the criminal code suggest the desirability of
clarification”). Had Congress intended to adopt the Code's structure when it enacted or
amended the Safe Streets Act, one would expect the Act’s form and language to adhere
much more closely to that used by the Code. It does not, and, for that reason, we cannot
rely on the Model Penal Code to provide evidence as to how Congress would have
wanted us to effectuate the duress defense in this context.

Congress can, if it chooses, enact a duress defense that places the burden on the
Government to disprove duress beyond a reasonable doubt. In light of Congress' silence
on the issue, however, it is up to the federal courts to effectuate the affirmative defense of
duress as Congress “may have contemplated” it in an offense-specific context. Oakland
Cannabis Buyers' Cooperative, 532 U.S. 483) 491, n. 3 (2001). In the context of
the firearms offenses at issue—as will usually be the case, given the long-established
common-law rule—we presume that Congress intended the petitioner to bear the burden
of proving the defense of duress by a preponderance of the evidence.

The concurrences and dissent argued for a more determinate and uniform rule.
Justice Breyer took the following position in dissent:

I would assume instead that Congress' silence typically means that Congress
expected the courts to develop burden rules governing affirmative defenses as they have
done in the past, by beginning with the common law and taking full account of the
subsequent need for that law to evolve through judicial practice informed by reason and
experience. [Citations]. That approach would produce uniform federal practice across
different affirmative defenses, as well as across statutes passed at different points in time.

My approach leads me to conclude that in federal criminal cases, the prosecution

should bear the duress defense burden of persuasion. The issue is a close one. In
Blackstone’s time the accused bore the burden of proof for all affirmative defenses. See 4
W. Blackstone, Commentaries; Patterson v. New York, 432 U.S. 197, 201-202 (1977).
And 20th-century experts have taken different positions on the matter. The Model Penal
Code, for example, recommends placing the burden of persuasion on the prosecution.
ALI, Model Penal Code § 1.12, p. 16, § 1.13(9)(c), p. 18, § 2.09, pp. 37-38 (1985). The
Brown Commission recommends placing it upon the defendant. National Commission on
Reform of Federal Criminal Laws, 1 Working Papers 278 (1970). And the proposed
revision of the federal criminal code, agnostically, would have turned the matter over to
the courts for decision. S. 1722, 96th Cong., 1st Sess., § 501 (1979). Moreover, there is a
practical argument that favors the Government’s position here, namely that defendants
should bear the burden of persuasion because defendants often have superior access to the
relevant proof.

Nonetheless, several factors favor placing the burden on the prosecution. For one
thing, in certain respects the question of duress resembles that of mens rea, an issue that
is always for the prosecution to prove beyond a reasonable doubt. The questions are not
the same. The defendant’s criminal activity here was voluntary; no external principle,
such as the wind, propelled her when she acted. The Nicomachean Ethics of Aristotle, p.
54 (R.W. Browne transl. 1865). Moreover, her actions were intentional. Whether she
wanted to buy the guns or not, and whether she wanted to lie while doing so or not, she
decided to do these things and knew that she was doing them. Indeed, her action was
willful in the sense that she knew that to do them was to break the law.

Nonetheless, where a defendant acts under duress, she lacks any semblance of a
meaningful choice. In that sense her choice is not free. As Blackstone wrote, the criminal
law punishes “abuse[s] of th[e] free will”; hence “it is highly just and equitable that a man
should be excused for those acts, which are done through unavoidable force and
compulsion.” 4 Commentaries. And it is in this “force and compulsion,” acting upon the
will, that the resemblance to lack of mens rea lies. Cf. Austin, Ifs and Cans, in
Proceedings of the British Academy 123-124 (1956) (noting difference between choosing
to do something where one has the opportunity and ability to do otherwise and choosing
to do something where one lacks any such opportunity or ability). . . .

For another thing, federal courts (as a matter of statutory construction or

supervisory power) have imposed the federal-crime burden of persuasion upon the
prosecution in respect to self-defense, insanity, and entrapment, which resemble the
duress defense in certain relevant ways. In respect to both duress and self-defense, for
example, the defendant's illegal act is voluntary, indeed, intentional; but the
circumstances deprive the defendant of any meaningful ability or opportunity to act
otherwise, depriving the defendant of a choice that is free. Insanity . . . may involve
circumstances that resemble, but are not identical to, a lack of mens rea. And entrapment
requires the prosecution to prove that the defendant was “predisposed” to commit the
crime-a matter sometimes best known to the defendant….

Further, most federal courts, in respect to most federal crimes, have imposed the
burden of persuasion in respect to the duress defense upon the Government . . . . By the
mid-1990's, seven circuits had squarely placed the burden of persuasion upon the
prosecution; one Circuit (the Fifth) placed the burden on the defendant; and four (the
Third, Fourth, Eleventh, and District of Columbia) did not, as far as I can tell, have a
definitive practice. [citations].

Beginning in 1991, the matter became more complicated because the Ninth
Circuit began to require the defendant to bear the burden of proving duress in certain
circumstances… And a few years later the Third, Sixth, and Eleventh Circuits followed
suit in cases concerning a closely related justification defense…. These latter cases,
however, put the burden on the defendant only where the criminal statute narrows its
mens rea requirement, i.e., the burden is the defendant's where the statute requires that the
defendant act with “knowledge” but not, suggest these courts, where the statute requires
that the defendant act “willfully,” “intentionally,” or “voluntarily.” [citations]. Similarly,
 the Tenth Circuit placed the burden of proving duress upon the defendant in “strict
liability” cases where mens rea is not an element of the crime at all. . . .

The apparent upshot is that four Circuits now place the burden of persuasion on
the prosecution across the board; one places the burden on the prosecution if the statute
requires mens rea but not otherwise; and four have held or suggested that the burden
should be on the prosecution if the statute requires an intentional or willful state of mind,
but not if the statute requires only knowledge. While the Circuits are divided, apparently
only one (the Fifth) agrees with the position taken by the Court today.

Further, while I concede the logic of the Government's practical argument-that

defendants have superior access to the evidence-I remain uncertain of the argument's
strength. After all, “[i]n every criminal case the defendant has at least an equal familiarity
with the facts and in most a greater familiarity with them than the prosecution.” Tot v.
United States, 319 U.S. 463, 469 (1943). And the strict contours of the duress
defense, as well as the defendant's burden of production, already
substantially narrow the circumstances under which the defense may be
used. A defendant may find it difficult, for example, to show duress where
the relevant conduct took place too long before the criminal act. . . . That
is because the defendant must show that he had no alternative to breaking
the law. . . . And that will be the more difficult to show the more remote
the threat. . . . More important, the need to prove mens rea can easily present
precisely the same practical difficulties of proof for the prosecutor. Suppose for example
the defendant claims that an old lady told him that the white powder he transported across
the border was medicine for her dying son.

… The Government says that the prosecution may “be unable to call the witness
most likely to have information bearing on the point,” namely, the defendant. . . .
Regardless, unless the defendant testifies, it could prove difficult to satisfy the defendant's
burden of production; and, of course, once the defendant testifies, cross-examination is
possible. In a word, I cannot evaluate the claim of practicality without somewhat more
systematic evidence of the existence of a problem, say, in those Circuits that for many
years have imposed the burden on the prosecutor. And, of course, if I am wrong about the
Government's practical need (and were my views to prevail), the Government would
remain free to ask Congress to reallocate the burden.

Finally, there is a virtue in uniformity, in treating the federal statutory burden of

persuasion similarly in respect to actus reus, mens rea, mistake, self-defense, entrapment,
and duress. The Second Circuit, when imposing the burden of persuasion for duress on
the prosecution, wrote that differences in this respect create “a grave possibility of juror
confusion.” United States v. Mitchell, 725 F.2d 832, 836 (1983). They risk
unfairness as well.

Page 567 – Add after note 4:

Duress is yet another issue which raises the question of the reasonable person standard. The Sixth
Circuit, in United States v. Johnson, 416 F.3d 464 (6th Cir. 2005), denied the defendant’s request to be held
to a lower “reasonable retarded person” standard with respect to his appreciation of legal alternatives to
crime for which he was claiming duress. The court held that although physical limitations and disabilities
(size, strength, blindness, etc) can be considered in evaluating the reasonableness of the defendant’s actions,
the objective reasonable person standard which prevails for common law duress claims does not permit
jurors to factor in a defendant’s non-physical condition.
Chapter 9 – Mental Illness as a Defense

Page 593 – Replace Note 8:

In Clark v. Arizona, 548 U.S. ___ (2006), the Supreme Court addressed the first
direct constitutional challenge to an insanity defense law since new restrictions were
imposed across the nation following John Hinckley’s 1981 acquittal for shooting
President Reagan. The defendant in this case was charged with first degree murder for
“intentionally or knowingly killing a law enforcement officer in the line of duty.” Clark,
a paranoid schizophrenic, shot and killed police officer Jeff Moritz in Flagstaff, Arizona,
on June 21, 2000. Clark, 17 years old at the time, was reportedly driving around his
neighborhood at 5 a.m. listening to loud rap music when he was pulled over by Moritz.
At trial, the prosecution presented evidence that the victim was in uniform at the time of
his death and that he approached the defendant in a marked police car with emergency
lights and siren activated. Clark claimed that his paranoid schizophrenia prevented him
from forming the mens rea for the crime. Clark’s witnesses, both expert and non-expert,
testified that Clark thought that “aliens” populated his town, that the “aliens” wanted to
kill him, and that the “aliens” periodically impersonated government agents. The
prosecution’s psychiatrist admitted that Clark suffered from schizophrenia but testified
that the disease did not keep him from appreciating the wrongfulness of his conduct.

In the first part of his claim, Clark argued that Arizona had violated due process
by removing the first part of the M’Naghten rule from its definition of insanity—the part
that provides an alternative form of acquittal where a mental defect leaves a defendant
unable to understand what he is doing. But the Court took this occasion to hold that due
process does not entitle defendants to any particular version of the insanity defense.

History shows no deference to M'Naghten that could elevate its formula to

the level of fundamental principle, so as to limit the traditional recognition of a State's
capacity to define crimes and defenses….

Even a cursory examination of the traditional Anglo-American approaches to

insanity reveals significant differences among them, with four traditional strains variously
combined to yield a diversity of American standards. The main variants are the cognitive
incapacity, the moral incapacity, the volitional incapacity, and the product-of-mental-
illness tests. The first two emanate from the alternatives stated in the M'Naghten rule. The
volitional incapacity or irresistible-impulse test, which surfaced over two centuries ago
(first in England, then in this country), asks whether a person was so lacking in volition
due to a mental defect or illness that he could not have controlled his actions. And the
product-of-mental-illness test was used as early as 1870, and simply asks whether a
person's action was a product of a mental disease or defect. Seventeen States and the
Federal Government have adopted a recognizable version of the M'Naghten test with both
its cognitive incapacity and moral incapacity components. One State has adopted only
M'Naghten's cognitive incapacity test, and 10 (including Arizona) have adopted the moral
incapacity test alone. Fourteen jurisdictions, inspired by the Model Penal Code, have in
place an amalgam of the volitional incapacity test and some variant of the moral
incapacity test, satisfaction of either (generally by showing a defendant's substantial lack
of capacity) being enough to excuse. Three States combine a full M'Naghten test with a
volitional incapacity formula. And New Hampshire alone stands by the product-of-
mental-illness test. The alternatives are multiplied further by variations in the prescribed
 insanity verdict: a significant number of these jurisdictions supplement the traditional
“not guilty by reason of insanity” verdict with an alternative of “guilty but mentally ill.”
Finally, four States have no affirmative insanity defense, though one provides for a
“guilty and mentally ill” verdict. These four, like a number of others that recognize an
affirmative insanity defense, allow consideration of evidence of mental illness directly on
the element of mens rea defining the offense.
With this varied background, it is clear that no particular
formulation has evolved into a baseline for due process, and that the
insanity rule, like the conceptualization of criminal offenses, is
substantially open to state choice. Indeed, the legitimacy of such choice is
the more obvious when one considers the interplay of legal concepts of
mental illness or deficiency required for an insanity defense, with the
medical concepts of mental abnormality that influence the expert opinion
testimony by psychologists and psychiatrists commonly introduced to
support or contest insanity claims. For medical definitions devised to
justify treatment, like legal ones devised to excuse from conventional
criminal responsibility, are subject to flux and disagreement. . . . There
being such fodder for reasonable debate about what the cognate legal and
medical tests should be, due process imposes no single canonical
formulation of legal insanity.
Indeed, said the Court, the Constitution may not require an insanity defense at all. Although due
process requires that the prosecution prove each element of a criminal charge beyond a reasonable doubt,
the Court held that the state benefits from a presumption of sanity in criminal prosecutions. This relieves
prosecutors from having to allege and prove that a defendant had the capacity to form the mens rea for a
crime and allows states to craft their own methods of reconciling insanity and criminal culpability.

Insanity is almost always designated as an affirmative defense. The usual procedure is for the jury
to first decide whether the defendant is guilty—i.e., whether the prosecution has proved all the elements,
including the required mens rea, beyond a reasonable doubt—and then, if the verdict is guilty, the defendant
will initiate a second phase before the same jury in which he will seek an NGI verdict. What goals does
this procedure serve? How effectively do you think it works?

In virtually all states, the defendant must bear at least the initial burden of production, i.e., to
introduce at least some evidence putting his sanity into issue. Once the defendant carries the initial burden
of production, about a fifth of the states will shift the burden of persuasion back to the prosecution to prove
the defendant’s sanity beyond a reasonable doubt; the majority, however, also require the defense to prove
inanity by a preponderance of the evidence, or, in a few cases, by “clear and convincing evidence.”

But in the second part of the Clark decision, the Court addressed the question whether, regardless
its particular definition of insanity, a state could forbid a defendant to use the same evidence of mental
disease or defect both to undermine the prosecution’s case on mens rea and to support an affirmative NGI
defense. Is creating a reasonable doubt as to the defendant’s capacity to form purpose or knowledge easier
than proving by a preponderance of the evidence that the defendant was incapable of distinguishing right
from wrong? Generally, a defendant has a constitutional due process right to present favorable evidence on
elements of a crime which must be proven to convict him. But in Clark the Supreme Court held that a state
may restrict certain types of mental disease and capacity evidence when presented to defeat proof of mens
rea.

An insanity rule gives a defendant already found guilty the opportunity to excuse
his conduct by showing he was insane when he acted, that is, that he did not have the
mental capacity for conventional guilt and criminal responsibility. But, as the dissent
argues, if the same evidence that affirmatively shows he was not guilty by reason of
 insanity (or “guilty except insane” . . .) also shows it was at least doubtful that he could
form mens rea, then he should not be found guilty in the first place; it thus violates due
process when the State impedes him from using mental-disease and capacity evidence
directly to rebut the prosecution's evidence that he did form mens rea.

Are there, then, characteristics of mental-disease and capacity evidence giving

rise to risks that may reasonably be hedged by channeling the consideration of such
evidence to the insanity issue on which, in States like Arizona, a defendant has the burden
of persuasion? We think there are: in the controversial character of some categories of
mental disease, in the potential of mental-disease evidence to mislead, and in the danger
of according greater certainty to capacity evidence than experts claim for it.

The Clark majority focused on general mental disease or capacity evidence (as opposed to
evidence concerning the defendant’s actual state of mind at the time he committed the crime) and found that
the complicated and often contested nature of such evidence justified the state’s decision to limit it to NGI
proceedings. Justice Kennedy disagreed, asserting that such evidence could be crucial to the defendant’s
ability to challenge the prosecution’s case:

More generally, the opinion that Clark had paranoid schizophrenia—an opinion
shared by experts for both the prosecution and the defense—bears on efforts to determine,
as a factual matter, whether he knew he was killing a police officer. The psychiatrist’s
explanation of Clark’s condition was essential to understanding how he processes sensory
data and therefore to deciding what information was in his mind at the time of the
shooting. Simply put, knowledge relies on cognition, and cognition can be affected by
schizophrenia. … The mental-disease evidence at trial was also intertwined with the
observation evidence because it lent credibility. Clark’s parents and friends testified
Clark thought the people in his town were aliens trying to kill him. These claims might
not be believable without a psychiatrist confirming the story based on his experience with
people who have exhibited similar behaviors. It makes little sense to divorce the
observation evidence from the explanation that makes it comprehensible….

The issue is not, as the Court insists, whether Clark’s mental illness acts as an
“excuse from customary criminal responsibility,” … but whether his mental illness, as a
factual matter, made him unaware that he was shooting a police officer. If it did, Clark
needs no excuse, as then he did not commit the crime as Arizona defines it. For the
elements of first-degree murder, where the question is knowledge of particular facts—that
one is killing a police officer—the determination depends not on moral responsibility but
on empirical fact. Clark’s evidence of mental illness had a direct and substantial bearing
upon what he knew, or thought he knew, to be the facts when he pulled the trigger….

The fact that mental-illness evidence may be considered in deciding criminal

responsibility does not compensate for its exclusion from consideration on the mens rea
elements of the crime…. The evidence addresses different issues in the two instances.
Criminal responsibility involves an inquiry into whether the defendant knew right from
wrong, not whether he had the mens rea elements of the offense. While there may be
overlap between the two issues, “the existence or nonexistence of legal insanity bears no
necessary relationship to the existence or nonexistence of the required mental elements of
the crime.” Mullaney v. Wilbur, 421 U.S. 684, 706 (1975) (Rehnquist, J., concurring)….
By viewing the Arizona rule as creating merely a “presumption of sanity (or capacity or
responsibility),” … rather than a presumption that the mens rea elements were not
affected by mental illness, the Court fails to appreciate the implications [of the
constitutional mandate that the prosecution prove all elements of the crime beyond a
reasonable doubt].

Would Clark’s evidence create a reasonable doubt that he intended to shoot a police officer or
even knew that the victim was a police officer? Could he appreciate the wrongfulness of his conduct if he
thought he was acting in self-defense?
Page 608 – Add at end of Note 6:

An update on some recent developments in the use of the insanity defense. In

recent years, many of the most well-documented insanity defense cases have involved
mothers who have killed their own children believing themselves to be under some
mandate from God. In 2003 in Lamar, Colorado, Rebekah Amaya was found not guilty
by reason of insanity after being charged with two counts of first-degree murder in the
deaths of her two children, Grace Headlee, 4, and Gabriel Amaya, five months.32 Amaya
claimed to have drowned her children after a spider crawled across her hand—she felt it
was a sign to “set her children free,” according to the affidavit.33 In February 2006, in
McKinney, Texas, a judge declared a mistrial in the case of Dena Schlosser, a woman
accused of fatally severing the arms off her 10-month-old daughter. Schlosser claimed to
be on orders from God and pleaded not guilty by reason of insanity.34

In October 2005, San Francisco resident Lashaun Harris, 23, pleaded innocent to
the murders of her three children, whom she was seen throwing into the San Francisco
Bay. Harris has a history of mental illness and claims that God wanted her children as a
sacrifice.35 In April 2004, Deanna Laney, a 39-year-old East Texas housewife, was found
not guilty by reason of insanity after she bludgeoned two of her sons to death. Laney also
cracked the skull of her third son—14 months old at the time—who remains partially
blind and brain-damaged. Laney, too, claimed to be commanded by God.36

Perhaps the most famous of these cases, however, is that of Andrea Yates, the
Houston woman who admitted to drowning her five children successively in a bathtub on
June 20, 2001. A devout Christian, Yates believed that Satan was influencing her and that
she had not done a good enough job raising her children. She was found sane and guilty
in her initial trial, and was sentenced to life imprisonment, but her conviction was
reversed because of false testimony given by famed forensic psychiatrist Park Dietz. In
his prosecution testimony, Dietz had mentioned an episode of Law & Order (to which he
is a consultant) possible catalyst for the murders—an episode which, as it turned out, had
never existed.. (Dietz also testified in the case of Rebekah Amaya, and several other
high-profile cases, including those of Jeffrey Dahmer and “Unabomber” Ted Kaczynski.)
Yates suffers from schizophrenia and postpartum depression, and though her conviction

32
Woman who drowned kids not guilty, MSNBC, February 1, 2005, at
http://www.msnbc.msn.com/id/6892974.
33
Affidavit: Mom says spider was “sign” to drown kids, CNN.com, October 20, 2003, at
http://www.cnn.com/2003/ US/Central/10/20/children.drowning.ap/index.html.
34
Mistrial in case of girl’s severed arms, MSNBC, February 25, 2006, at http://www.msnbc.msn.com/id/
11568174.
35
San Francisco mom pleads innocent to murder, MSNBC, October, 21 2005, at
http://www.msnbc.msn.com/id/ 9758632.
36
John Springer, Jury accepts insanity defense for mother who killed sons, CNN.com, April 5, 2004, at
http://www.cnn.com/2004/LAW/04/05/laney.
was overturned, her attorneys will not seek her release from a prison psychiatric ward.37
The case of Andrea Yates has gained much media attention and has also been the subject
of several articles appearing in law journals.38 (On retrial, Yates was acquitted by reason
of insanity, on July 26, 2006.)

Movies have played a part in insanity cases. Indeed, lawyers ion the successful
NGI claim of John Hinckley had argued that his delusions had been highly influenced by
the film Taxi Driver, in which Travis Bickle, a gun-toting sociopath played by Robert De
Niro, attempts to assassinate a politician and develops a relationship with a young
prostitute played by Jodie Foster, with whom Hinckley was infatuated.. More recently,
The Matrix action film trilogy has found its way into cases involving the insanity
defense. In September 2002, Vadim Mieseges, a Swiss national computer science student
living in San Francisco, was found legally insane after he skinned and dismembered his
landlord, dumping parts of her body in a park dumpster. He claimed to be “sucked into
‘The Matrix’” at the time of the crime.39

Similarly, in May 2003, Tonda Lynn Ansley, a resident of Hamilton, Ohio, was
found not guilty by reason of insanity after shooting her landlord several times in the
head in July 2002. Ansley believed her landlord to be part of a “Matrix”-like conspiracy
to brainwash her. In 2003 in Oakton, Virginia, Joshua Cooke, then 19 years old, shot and
killed both of his parents with a shotgun in their home. Cooke often dressed in a
“Matrix”-style long black trench coat and had an enormous poster of Neo, the star of The
Matrix movies (played by Keanu Reeves), in his room. Cooke’s defense claimed that the
defendant “harbored a bona fide belief that he was living in the virtual reality of ‘The
Matrix’ at the time of the alleged offenses and thus could not distinguish right from
wrong.”40 Cooke later pleaded guilty to both murders.

Nevertheless, it remains the case, that though the insanity defense frequently
garners media attention and appears often in courtroom scenes in television and film, it is
seldom used by criminal defendants and rarely successful. According to Byron Warnken,
professor at the University of Baltimore School of Law, “Insanity is so very rarely
successful…. But it fascinates us all, it’s the kind of thing that is disproportionately
reported. The correlation between the real world and the movies tends to be
misrepresented.”41 “A recent 8-state study of criminal cases in the early 1990s concluded
that less than one percent of defendants pleaded insanity and, of them, only a quarter won
acquittals.42 According to the National Committee on the Insanity Defense, the insanity

37
Yates’ attorneys won’t seek release, CNN.com, January, 7 2005., at http://www.cnn.com/2005/LAW/
01/06/children.drowned/index.html.
38Christine Michalopoulos, Filling in the holes of the insanity defense: the Andrea Yates case and the need for a new prong, 10
Va. J. of Soc. Pol’y & the
L. 383 (2003).
39
Matt Bean, “Matrix” makes its way into courtrooms as defense strategy, CNN.com, May, 21 2003, at
http://www.cnn.com/2003/LAW/05/21/ctv.matrix.insanity.
40Ken Moore, No More Matrix Defense, The Connection Newspapers,
June, 25 2003, at
http://www.connectionnewspapers.com/article.asp?archive=true&article=20478&paper=59&cat=1
23.
41
Bean, supra.
42
John P. Martin, The Insanity Defense: A Closer Look, Washigtonpost.com, February, 27 1998, at
http://www.washingtonpost.com/wp-srv/local/longterm/aron/qa227.htm.
defense “plays a minor role in the criminal justice system.”43

Page 619 – Add at end of Section D:

Further developments in research on “criminal neurobiology.” Recent research

involves analysis using a positron emission tomography (PET) scan that can show
chemical interactions in various parts of the brain. Scientists today are focusing on
interactions in the prefrontal cortex, the part considered to control decision-making,
rational thinking, and moral behavior. Additionally, elevated chemical levels in the brain,
most notably of serotonin, dopamine, and monoamine oxidase have helped to link
biological imbalances in violent offenders to their criminal actions.44

USC Psychologist Adrian Raine has studied birth complications and heart rates as
determining characteristics for violent predisposition. Raine believes that 15 percet to 20
percent of violent criminals are violent because of brain chemistry. He supports improved
prenatal care and parenting services in poor communities as part of a comprehensive
approach to violence prevention.45 “Raines’s work highlights some of the ways in which
a society might be able to intervene early and effectively in the lives of people who
would be predisposed to violent impulsive behavior.”46 More specifically, Raine has
examined brain abnormalities in pathological liars using a magnetic resonance imaging
machine. He discovered that individuals who habitually cheat and lie have substantially
more white matter and less gray matter than usually honest people. Gray matter in the
prefrontal cortex generally controls moral behavior whereas excess white matter controls
communication within the brain and from the brain to the rest of the body. White matter
acts as a channel for gray matter, communicating morality to the rest of the brain. It can
control both rational thought and bodily functions. People with 90 percent white matter
or more have Multiple Sclerosis (MS) and lose control of their neurological
communication skills. Hence, he asserts, liars have “more tools to lie and fewer moral
restraints than normal people.”47

Other studies involving measurements of the prefrontal cortex using a PET scan
have examined “willed actions” as opposed to involuntary actions. A “willed action” is a
matter of choice, or an action for which one pays attention to its selection. Scientists C.D.
Frith, K. Friston, P.F. Liddle, and R.S.J. Frackowiak conducted a study in which they
recorded increased blood flow in the dorsolateral prefrontal cortex in volunteers who
were asked to make a decision among several stimuli. When asked to repeat a given
response, however, there was less recorded blood flow. Monitored flow in the prefrontal
cortex, then, can help determine whether or not the brain considered an action
involuntary or “willed.” PET studies of prefrontal cortex function further help scientists
43
Marcia Chambers, Insanity Defense Backed By Panel, New York Times, April 7, 1983.
44
Terrence Monmaney, Seeking a Biological Link to Violence, Los Angeles Times, February 26, 1998, at 1.
45
Adrian Raine, The interaction of biological and social measures in the explanation of antisocial and
violent behavior, in D.M. Stoff and E.J. Susman, Developmental Psychobiology of Aggression (2005), at
13-42.
46
Monmaney, supra.
47
Adrian Raine, Prefrontal structural abnormalities in liars, 187 British J. Psychiatry 320 (2005).
understand ‘functional’ psychoses, such as schizophrenia.48

PET scans have also been used to confirm insanity defenses. A study by Mt. Sinai
School of Medicine Psychiatrist Monte Buchsbaum and analyzed by Raine included 41
convicted murderers who pleaded not guilty by reason of insanity. The murderers
appeared to have less nerve cell activity in certain areas than the non-convicted felons
who had similar mental problems. Raine noted that the activity was different in the
prefrontal cortex. “A prefrontal cortex that is less active than normal, Raine said, would
perhaps give aggressive impulses extra prominence.”49

To what extent can murder or other violent crimes fall under internal impulse
rather than willed action? How could prefrontal cortex analysis help identify behavioral
problems or insanity pleas? An inactive prefrontal cortex could be indicative of
involuntary, routine actions or limited moral behavior. How could such evidence be used
to prove/disprove an insanity plea?

Neurochemicals. Other recent studies have analyzed the extent to which

neurochemicals are responsible for the activation of criminal behavioral patterns and
tendencies in specific areas of the brain. Monoamine oxidase (MAO) is an enzyme
related to antisocial behavior. Low MAO activity results in disinhibition, which can lead
to impulsivity and aggression. Serotonin is a neurochemical that plays an important role
in the personality traits of depression, anxiety, and bipolar disorder and ais involved with
a disorder in brain development that can lead to an increase in aggressiveness and
impulsivity early in childhood. Dopamine is a neurotransmitter that is associated with
pleasure and aggression. Dopamine activates affective (emotionally driven) and
predatory aggression.50

Abnormal chemical interactions can also create personality and social disorders in
individuals. For example, genes found in the dopaminergic pathway in the brain have
been correlated with Attention Deficit Hyperactivity Disorder (ADHD). ADHD is
associated with hyperactivity-impulsivity. Some researchers suggest that in extreme
cases, children with this disorder are at risk for developing conditions known as
Opposition Defiance Disorder (ODD) or Conduct Disorder (CD).51

Furthermore, certain chemical imbalances can lead to low or high arousal levels
in the brain. The “general arousal theory of criminality” suggests that criminality is
strongly correlated with low arousal levels and involve such characteristics as lack of
interest, sleepiness, lack of attention, and loss of vigilance. Individuals with low arousal
levels need to seek out stimulation because they do not have enough already in their
brains. They often inherit a nervous system that is unresponsive to low levels of
stimulation, so they obtain stimulation through high-risk activities associated with
48
C.D. Frith, Willed action and the prefrontal cortex in man: a study with PET, Proceedings: Biological
Sciences, Vol. 244, No. 1311 (1991), at 241-246.
49
Monmaney, supra.
50
Caitlin Jones, Genetic and Environmental Influences on Criminal Behavior, Genes, Environment and
Criminal Behavior, June 22, 2006, at http://www.personalityresearch.org.
51
Id.
antisocial behavior (substance abuse and crime).52

Can new theories about neurological behavior be used to “excuse” criminal

behavior? How can we best use this information to prevent crime and punish justly?

Neuroscientist Wolf Singer, head of the Max Planck Institute for Brain Research
in Frankfurt, Germany, is one scientist who subscribes to the view that individuals with
abnormal neural make-up have little choice but to break the law. Such individuals, he
believes, should not be punished. He believes free will is an illusion, and that free action
is defined by whatever hereditary and environmental influences contributed to one’s
character.53 Singer’s posits that decisions emerge from a collection of dynamic systems
that interact in the brain. Because the human brain computes variables at a subconscious
level, humans are not aware of all the factors that make them behave in certain ways. If a
person does something antisocial, the reason for it is in the brain, Singer says. The
underlying cause may be a twist in a gene, or a tiny hormonal imbalance that cannot be
detected with current technology or in the capacity of a state psychiatrist.54 Singer does
not argue that all those who commit crimes are innocent, nor does he believe a criminal
justice system should abolish its concepts of right and wrong. He does argue, though, that
people who commit crimes are not acting independently of their nervous system and the
amino acids in their brains.55

Page 620 – Add at the end of E(1):

Involuntary intoxication is a different matter, however. Consider Illinois’s

intoxication defense rule: “A person who is in an intoxicated or drugged condition is
criminally responsible for conduct unless such condition is involuntarily produced and
deprives him of substantial capacity either to appreciate the criminality of his conduct or
to conform his conduct to the requirements of law.” 720 Ill. Comp. Stat. 5/6-3. In People
v. Hari, 218 Ill. 2d 275 (2006), the defendant who was charged with first degree murder
for shooting his wife and her lover, attempted to avail himself of this involuntary
intoxication defense by claiming that he was suffering from the side-effects of his
prescription medication. The trial court refused to give the jury an involuntary
intoxication instruction because the defendant’s intoxication did not result from an
outside influence such as “trick, artifice, or force,” but did allow a general insanity
instruction. The Illinois Supreme Court reversed, holding that the unexpected and
unwarned consequences of prescription drugs are “involuntarily produced” for the
purposes of the intoxication defense.

52
Id.
53
Laura Spinney, Life: I’m not guilty—but my brain is, The Guardian, August 12, 2004, at
http://education.guardian.co.uk/higher/research/story/0,,1281011,00.html.
54
Id.
55
Id.
Chapter 11 – Complicity

Page 702 – Add after note 7:

The general evidence is that parental accountability laws have not been hugely
successful; some jurisdictions have reduced the penalties, and prosecutions seem to be
declining.56 But other anti-gang measures, as substitutes for or supplements to criminal
prosecutions under accomplice liability laws have been lively area for innovation of late.

56
Tom O’Connor, Juvenile Offenders & Troubled Teens, North Carolina Wesleyan College, at
http://faculty.ncwc.edu/toconnor/juvjusp.htm.
 Fighting gangs in schools. In high gang-crime cities nationwide, school and law
enforcement officials are monitoring middle and high schools in an attempt to reduce
gang participation among the nation’s youth. In Sacramento, police have an active
presence in schools, where they directly interact with students to determine who is in a
gang. The police have a checklist of ten criteria to identify gang members; if a student
meets two of the criteria, he can be labeled a gang member. While being labeled a gang
member is not a crime in itself, it warrants special attention from authorities, and if the
individual commits a crime to glorify a gang, he faces enhanced charges and a stiffer
punishment. Students identified as gang members are often sent to drug or alcohol
counseling, intervention sessions, or anger management classes. Sacramento began
monitoring students in schools in response to an increase in gang activity. From 2003 to
2004, the police have identified 740 youths as gang members, including a ten-year old.57
In Wake County, N.C., the school board committee gave principals authority to suspend
students who wear gang clothing or who engage in gang-related activity. Wake Forest
officials say that these measures are preventive and were prompted by the rising gang
activity in Wake County and statewide. Durham and Raleigh, which have larger gang
problems, already have such policies instituted.58

Court injunctions. Numerous California counties are increasingly turning to

“public nuisance” injunctions to reduce gang violence. Los Angeles has been using court
injunctions to fight gangs for more than a year, and the success of the injunctions
prompted mayors from across the nation to travel to Los Angeles in March 2006 to learn
about injunctions and how to implement them. To obtain an injunction, the city can ask a
judge to declare that a particular gang is a public nuisance. Injunctions identify gang
members and typically prohibit them from associating in public and loitering in certain
neighborhoods, and enhance their sentence if they are convicted of a crime. Violation of
these restrictions can result in fines of up to $1000 or jail time of up to six months.
Injunctions have been controversial because courts lack strict criteria or process for
determining that an individual is a gang member. There are currently twenty-six civil
gang injunctions in Los Angeles, and while many gang members are identified by name,
the injunctions also include dozens of “John Does” to be named later. Once the
permanent injunction has been issued, individual officers have the discretion to identify
other gang associates. If police officers suspect someone of being a gang member, they
can add the individual’s name directly to the list, maintained by the Los Angeles Police
Department gang enforcement unit. The individual served with the injunction often does
not know why he is listed, and there are few ways to appeal the inclusion.

These court injunctions have been criticized as overly broad and ill-targeted,
since they often label people on the basis of their clothing and associates. The injunctions
can also serve to derail gang members from leading a “straight” life, as typical
injunctions prevent individuals from getting jobs (due to background checks), getting to
work or school (gang members cannot ride in buses if other gang members are present),

57
Christina Jewett, Gang watch in schools: Who’s in, who’s not? Sacramento Bee, June 6, 2005, at A1.
58
T. Keung Hui, School rules target gangs; Troubled by signs of gangs in Wake schools, a panel writes rules
limiting certain clothing, gestures, behavior, News & Observer, March 9, 2005, at A1.
or playing on school sports teams (they cannot play if other gang members play in the
same league). Often, these injunctions target individuals who were never in a gang, but
have friends or relatives who were. Connie Rice, a civil rights attorney, explains: “We
found people in that database whose information came from 20-year-old [confidential]
gang cards [unverified reports in police files].… Middle class citizens who own homes,
work, have children, haven’t been involved in gangs for years and years and years…The
problem is, there’s no exit ramp. You can get on, but you can’t get off.”

To date, there is one way to be removed from an injunction in Los Angeles, but
this process has been criticized as unfeasible in many circumstances and overly
dangerous. To be removed from an injunction, an individual must publicly renounce his
gang membership and sign a sworn statement that (1) he has not associated with other
gang members for at least three years, (2) he has not had legal troubles in the last three
years, and (3) has been employed or has attended school and made consistent progress
for eighteen months before the renunciation.

Police believe that Los Angeles contains 39,000 gang members, who commit an
estimated 7000 crimes each year, including 300 murders. As of March 2006, thirty-six
gangs had been named in twenty-six injunctions. Court injunctions have also become
popular in Fresno, San Jose, and Sacramento.59

Confidential informants. In an effort to fight gang crime, the Los Angeles Police
Commission has endorsed a six-month pilot program that would allow uniformed gang
enforcement officers to use confidential and/or paid informants. This practice was
previously banned under a federal consent decree because it was abused by officers in
the Los Angeles Police Department’s Rampart Division scandal. The consent decree
stipulates that only non-uniformed officers can use confidential informants, and in
practice this has restricted the practice to specialized detectives. The pilot program would
expand the practice to uniformed gang officers who are often the first ones at the crime
scene, and who deal directly with residents. Officers would undergo special training and
would have to complete detailed reports about their contacts with confidential sources.60

Violent Crime Impact Team. In 2004, the U.S. Department of Justice created the
Violent Crime Impact Team to help reduce gang crime in cities nationwide. The goal of
is to target career criminals using state, federal and local forces, and includes officers
from the Bureau of Alcohol, Tobacco, Firearms and Explosives, city gang officers, and
both federal and city prosecution teams. In 2004, the program targeted fifteen cities,
aiding in 19,000 arrests and the seizure of 1700 firearms. In 2005, the program was
implemented in Camden, NJ; Fresno, CA; Hartford, CT; Houston; and New Orleans. In
addition to providing more law enforcement, another huge benefit to the program is the
ability to prosecute gang members federally. Federal convictions result in longer
sentences (federal inmates serve a minimum of eighty-five percent of their sentences,
59
Steve Gibson, Injunction targets West Sac street gang, Sacramento Bee, February 10, 2005, at A1; Patrick
McGreevy and Sandy Banks, On Paper, Leaving a Gang is Difficult; L.A. uses injunctions to fight thugs,
but those who go straight find it’s hard to get off the list, Los Angeles Times, March, 23 2006, at A1.
60
Dan Laidman, LAPD Seeking to Relax Rules on Informants, Daily News of Los Angeles, August 10,
2005, at N4.
while state inmates serve only fifty percent), and in contrast to state prisons, federal
prisons are spread all across the country, allowing gang members to be placed far from
their homes, and making it easier to severe gang ties.61

Separate prison units. To reduce gang violence behind bars and once inmates are
released from prison, North Carolina is planning a special close-custody unit that will
segregate gang members from other inmates. The state has planned a 200-bed unit at the
Foothills Correctional Institution in western North Carolina, and has received $770,000
in federal aid to train staff and to expand the prison; the state will assume the program’s
full expenses after two years. Gang members will not be released from the Institution
until they complete a program that teaches them to control their anger and to sever gang
ties. The program will last at least nine months, and those who do not pass the program
will stay until they do, or until they have completed their sentences. North Carolina has
identified 471 gang members in prison.

Connecticut was the first state to establish a separate unit for gang members.
Prison authorities segregated male, female, and youth gang members in special units.
Officials assert they saw an immediate effect, many inmates changing their behavior to
avoid being transferred to the gang unit, and those who did not being enrolling in a six-
month program that taught them how to serve their time with the least conflict. Inmates
had to pass the program in order to be released, and officials say that only five percent of
those who completed the program returned. Prison violence in Connecticut has dropped
eighty percent since the program was implemented ten years ago. New Jersey began
segregating gang members in 1998, and assaults on staff have dropped fifty percent since
then.62

Chapter 12 - Conspiracy

Page 788 – Add at the end of Note 5:

The Nevada Supreme Court also explicitly rejected the Pinkerton rule, but only
for offenses requiring specific intent. In such cases, vicarious co-conspirator liability
only flows from a showing that the non-principal defendant had the requisite intent to
commit the crime, not merely that the crime was a natural and probable object of the
conspiracy. Bolden v. State, 124 P.3d 191 (Nev. 2005).

Page 808 – Add at end of paragraph on non-economic racketeering:

While a RICO enterprise need not have an economic motive, it must have an
effect on interstate commerce in order to satisfy the jurisdictional element. In Waucaush

61
Michael Doyle and Marc Benjamin, Fresno gets aid in battle with gangs; Program will coordinate federal,
state, local crime fighters in targeting gangs, Fresno Bee, March 1, 2005, at A1.
62
N.C. prison officials plan separate units for gangs, Associated Press, January 22, 2005.
v. United States, 380 F. 3d 251 (6th Cir. 2004) the court held that this effect must be
substantial where the enterprise is not primarily engaged in economic activity. Thus,
when a gang is primarily engaged in acts of violence rather than, say drug trafficking or
peddling, it is not a RICO enterprise unless it has a substantial effect on interstate
commerce, for example by hijacking a plane or killing a major drug-dealer.

Chapter 13 – Criminal Liability and the Corporations

Page 822 – Add at end of Note 3:

Andersen in the Supreme Court. The Arthur Andersen case came to the Supreme
Court on appeal of the partnership’s conviction of obstruction of justice. Arthur Andersen
v. United States 544 U.S. __ (2005). The Court recounted the relevant facts:
On August 28, an article in the Wall Street Journal suggested
improprieties at Enron, and the SEC opened an informal investigation. By
early September, petitioner had formed an Enron “crisis-response” team,
which included Nancy Temple, an in-house counsel. On October 8,
petitioner retained outside counsel to represent it in any litigation that
might arise from the Enron matter. The next day, Temple discussed Enron
with other in-house counsel. Her notes from that meeting reflect that
“some SEC investigation” is “highly probable.”
On October 10, [Andersen partner Michael] Odom spoke at a general
training meeting attended by 89 employees, including 10 from the Enron
engagement team. Odom urged everyone to comply with the firm’s
document retention policy.63 He added: “ ‘[I]f it’s destroyed in the course
of [the] normal policy and litigation is filed the next day, that’s great….
[W]e’ve followed our own policy, and whatever there was that might have
been of interest to somebody is gone and irretrievable.’ ” On October 12,
Temple entered the Enron matter into her computer, designating the “Type
of Potential Claim” as “Professional Practice–Government/Regulatory
Inv[estigation].” Temple also e-mailed Odom, suggesting that he
“ ‘remin[d] the engagement team of our documentation and retention
policy.’ ”
On October 16, Enron announced its third quarter results. That release
disclosed a $1.01 billion charge to earnings. The following day, the SEC
63
The firm’s policy called for a single central engagement file, which “should contain only that information
which is relevant to supporting our work.” The policy stated that, “in cases of threatened litigation, … no
related information will be destroyed.” It also separately provided that, if petitioner is “advised of litigation
or subpoenas regarding a particular engagement, the related information should not be destroyed. Policy
Statement No. 780 set forth “notification” procedures for whenever “professional practice litigation against
[petitioner] or any of its personnel has been commenced, has been threatened or is judged likely to occur, or
when governmental or professional investigations that may involve [petitioner] or any of its personnel have
been commenced or are judged likely.”
 notified Enron by letter that it had opened an investigation in August and
requested certain information and documents. On October 19, Enron
forwarded a copy of that letter to petitioner.
On the same day, Temple also sent an e-mail to a member of
petitioner’s internal team of accounting experts and attached a copy of the
document policy. On October 20, the Enron crisis-response team held a
conference call, during which Temple instructed everyone to “[m]ake sure
to follow the [document] policy.” On October 23, Enron CEO Lay
declined to answer questions during a call with analysts because of
“potential lawsuits, as well as the SEC inquiry.” After the call, Duncan
met with other Andersen partners on the Enron engagement team and told
them that they should ensure team members were complying with the
document policy. Another meeting for all team members followed, during
which Duncan distributed the policy and told everyone to comply. These,
and other smaller meetings, were followed by substantial destruction of
paper and electronic documents.
On October 26, one of petitioner’s senior partners circulated a New
York Times article discussing the SEC’s response to Enron. His e-mail
commented that “the problems are just beginning and we will be in the
cross hairs. The marketplace is going to keep the pressure on this and is
going to force the SEC to be tough.” On October 30, the SEC opened a
formal investigation and sent Enron a letter that requested accounting
documents.
Throughout this time period, the document destruction continued,
despite reservations by some of petitioner’s managers.64 On November 8,
Enron announced that it would issue a comprehensive restatement of its
earnings and assets. Also on November 8, the SEC served Enron and
petitioner with subpoenas for records. On November 9, Duncan’s
secretary sent an e-mail that stated: “Per Dave–No more shredding… . We
have been officially served for our documents.” Enron filed for
bankruptcy less than a month later. Duncan was fired and later pleaded
guilty to witness tampering.
The question before the Supreme Court was the sufficiency of Judge Harmon’s
jury instructions explaining the required mens rea for the crime of
“knowingly us[ing] intimidation or physical force, threaten[ing], or
corruptly persuad[ing] another person … with intent to … cause” that
person to “withhold” documents from, or “alter” documents for use in, an

64
For example, on October 26, John Riley, another partner with petitioner, saw Duncan shredding
documents and told him “this wouldn’t be the best time in the world for you guys to be shredding a bunch
of stuff.” On October 31, David Stulb, a forensics investigator for petitioner, met with Duncan. During the
meeting, Duncan picked up a document with the words “smoking gun” written on it and began to destroy it,
adding “we don’t need this.” Stulb cautioned Duncan on the need to maintain documents and later informed
Temple that Duncan needed advice on the document retention policy.
 “official proceeding.”
The Court unanimously reversed the conviction, finding the instructions inadequate.
… [T]he act underlying the conviction–“persua[sion]”–is by itself
innocuous. Indeed, “persuad[ing]” a person “with intent to … cause” that
person to “withhold” testimony or documents from a Government
proceeding or Government official is not inherently malign.8 Consider, for
instance, a mother who suggests to her son that he invoke his right against
compelled self-incrimination, see U.S. Const., Amdt. 5, or a wife who
persuades her husband not to disclose marital confidences, see Trammel v.
United States, 445 U.S. 40 (1980).
Nor is it necessarily corrupt for an attorney to “persuad[e]” a client
“with intent to … cause” that client to “withhold” documents from the
Government. In Upjohn Co. v. United States, 449 U.S. 383 (1981), for
example, we held that Upjohn was justified in withholding documents that
were covered by the attorney-client privilege from the Internal Revenue
Service (IRS). No one would suggest that an attorney who “persuade[d]”
Upjohn to take that step acted wrongfully, even though he surely intended
that his client keep those documents out of the IRS’ hands.
“Document retention policies,” which are created in part to keep certain
information from getting into the hands of others, including the
Government, are common in business. It is, of course, not wrongful for a
manager to instruct his employees to comply with a valid document
retention policy under ordinary circumstances.
Acknowledging this point, the parties have largely focused their
attention on the word “corruptly” as the key to what may or may not
lawfully be done in the situation presented here. Section 1512(b) punishes
not just “corruptly persuad[ing]” another, but “knowingly … corruptly
persuad[ing]” another. (Emphasis added.) The Government suggests that
“knowingly” does not modify “corruptly persuades,” but that is not how
the statute most naturally reads. It provides the mens
rea–“knowingly”–and then a list of acts–“uses intimidation or physical
force, threatens, or corruptly persuades.” We have recognized with regard
to similar statutory language that the mens rea at least applies to the acts
that immediately follow, if not to other elements down the statutory chain.
See United States v. X-Citement Video, Inc., 513 U.S. 64, 68 (1994)
(recognizing that the “most natural grammatical reading” of 18 U.S.C. §
2252(a)(1) and (2) “suggests that the term ‘knowingly’ modifies only the
surrounding verbs: transports, ships, receives, distributes, or reproduces”).
The Government suggests that it is “questionable whether Congress would
employ such an inelegant formulation as ‘knowingly … corruptly
persuades.’ ” Long experience has not taught us to share the
Government’s doubts on this score, and we must simply interpret the
statute as written.
 The parties have not pointed us to another interpretation of “knowingly
… corruptly” to guide us here. “[K]nowledge” and “knowingly” are
normally associated with awareness, understanding, or consciousness. See
Black’s Law Dictionary 888 (8th ed. 2004) Webster’s Third New
International Dictionary 1252—1253 (1993) American Heritage
Dictionary of the English Language 725 (1981) “Corrupt” and
“corruptly” are normally associated with wrongful, immoral, depraved, or
evil. See Black’s 371; Webster’s 3d 512; Am. Hert. 299—300. Joining
these meanings together here makes sense both linguistically and in the
statutory scheme. Only persons conscious of wrongdoing can be said to
“knowingly … corruptly persuad[e].” …
The outer limits of this element need not be explored here because the
jury instructions at issue simply failed to convey the requisite
consciousness of wrongdoing. Indeed, it is striking how little culpability
the instructions required. For example, the jury was told that, “even if
[petitioner] honestly and sincerely believed that its conduct was lawful,
you may find [petitioner] guilty.” The instructions also diluted the
meaning of “corruptly” so that it covered innocent conduct.
The parties vigorously disputed how the jury would be instructed on
“corruptly.” The District Court based its instruction on the definition of
that term found in the Fifth Circuit Pattern Jury Instruction for §1503.
This pattern instruction defined “corruptly” as “ ‘knowingly and
dishonestly, with the specific intent to subvert or undermine the
integrity’ ” of a proceeding. The Government, however, insisted on
excluding “dishonestly” and adding the term “impede” to the phrase
“subvert or undermine.” Ibid. (internal quotation marks omitted). The
District Court agreed over petitioner’s objections, and the jury was told to
convict if it found petitioner intended to “subvert, undermine, or impede”
governmental factfinding by suggesting to its employees that they enforce
the document retention policy.
These changes were significant. No longer was any type of
“dishonest[y]” necessary to a finding of guilt, and it was enough for
petitioner to have simply “impede[d]” the Government’s factfinding
ability. As the Government conceded at oral argument, “ ‘impede’ ” has
broader connotations than “ ‘subvert’ ” or even “ ‘undermine,’ ” and many
of these connotations do not incorporate any “corrupt[ness]” at all. The
dictionary defines “impede” as “to interfere with or get in the way of the
progress of” or “hold up” or “detract from.” Webster’s 3d 1132. By
definition, anyone who innocently persuades another to withhold
information from the Government “get[s] in the way of the progress of”
the Government. With regard to such innocent conduct, the “corruptly”
instructions did no limiting work whatsoever.
The instructions also were infirm for another reason. They led the jury
 to believe that it did not have to find any nexus between the
“persua[sion]” to destroy documents and any particular proceeding. In
resisting any type of nexus element, the Government relies heavily on
§1512(e)(1), which states that an official proceeding “need not be pending
or about to be instituted at the time of the offense.” It is, however, one
thing to say that a proceeding “need not be pending or about to be
instituted at the time of the offense,” and quite another to say a proceeding
need not even be foreseen. A “knowingly … corrup[t] persaude[r]” cannot
be someone who persuades others to shred documents under a document
retention policy when he does not have in contemplation any particular
official proceeding in which those documents might be material.
Has the Court clarified what the term “corruptly” means? What consciousness of
wrongdoing” does it require? Putting aside cases where a corporate or partnership
official who has ordered the shredding of documents (a) has no reason to know there
might be a legal proceeding involving the documents and (b) does not claim for herself or
any delegated employee any privilege not to disclose, just what culpability does the
Supreme Court require? Is it solely that the relevant parties be aware that there is a
criminal law against obstruction of justice? At least after this case, should any official
ever be credible in claiming such ignorance?
The conviction itself in this case was enough to lead to the demise of the Arthur
Andersen LLP. Assuming it had survived, what issues might have been left to litigate at
re-trial?

Page 861 – Add after Note 10:

11. Possession vs. Property: Illegal Objects. Must the object of the theft be the
property of the larceny victim? Not necessarily. Consider the case of Guy v. State, 838
P.2d 578 (Nev. 1992), discussed supra on the issue of the death penalty, where the
defendants’ felony murder conviction was based on the robbery of drugs which were still
in their possession but which they had promised to give to the decedent. For extended
description of the facts, see the new note keyed to p. 464 above.

To convict appellant under a felony murder theory, the state had to

prove that Evans was murdered while being robbed by Pendleton and
appellant. Appellant contends that the evidence does not support the jury's
finding that he and Pendleton robbed Evans. We disagree.
NRS 200.380(1) defines robbery as follows:
[T]he unlawful taking of personal property from the person of another,
or in his presence, against his will, by means of force or violence or
fear of injury, immediate or future, to his person or property, or the
person or property of a member of his family, or of anyone in his
company at the time of the robbery. Such force or fear must be used to
obtain or retain possession of the property, or to prevent or overcome
resistance to the taking, in either of which cases the degree of force is
immaterial. If used merely as a means of escape, it does not constitute
robbery. Such taking constitutes robbery whenever it appears that,
 although the taking was fully completed without the knowledge of the
person from whom taken, such knowledge was prevented by the use of
force or fear.
Appellant first argues Evans had no legal or proprietary interest in the drugs
because the agreement that entitled him to a portion of the drugs was void and
unenforceable. See Gaston v. Drake, 14 Nev. 175 (1879) (holding that a contract will not
be enforced if it is against public policy or if it is for an illegal purpose). Appellant
concludes that because Evans had no legal or proprietary interest in the drugs, there was
no unlawful taking of personal property and therefore no robbery.
Appellant's argument fails. Admittedly, the agreement could not be enforced as a
contract because of its illegal purpose; that does not mean, however, that the drugs could
not be the subject of a robbery. The Supreme Court of California has declared that “by
prohibiting possession of an item, the government does not license criminals to take it by
force or stealth from other criminals.” People v. Dillon, 34 Cal.3d 441, 194 Cal.Rptr. 390,
397 n. 5, 668 P.2d 697, 704 n. 5 (1983). And in State v. Pokini, 45 Haw. 295, 367 P.2d
499 (1961), the Supreme Court of Hawaii specifically held that a thief could be robbed of
stolen goods. In our view, these cases correctly characterize robbery as a crime against
possession, and we believe that the deal Evans made with his killers gave him a
possessory interest in the cocaine. [Id. at 774-75.]

Chapter 14 – Theft Offenses

Page 873 – Add at end of Note 7, Mail fraud and intangible property:

There have been two important subsequent cases on this issue. In Cleveland v,
United States, 531 U.S. 12 (2000), the Supreme Court ruled that fraudulently acquiring
video poker licenses did not constitute obtaining “property” in the sense of depriving
another of property. Even though such licenses, once obtained, became valuable
property of their holders, they were never the property of the state.

In the recent case of United States v. Heidathy, 392 F. 3d 580 (3d Cir. 2004), the
court upheld mail fraud convictions for participants in a scheme to obtain fraudulent
TOEFL scores for several persons of middle-eastern descent by having others
impersonate those individuals so as to take the test for them. The ultimate aim was to
obtain student visas for persons who otherwise could not qualify for study at American
universities. The court held that the Educational Testing Service had a property interest
in control over access to its tests and scores. It reasoned as follows:

“‘Confidential information acquired or compiled by a corporation in

the course and conduct of its business is a species of property to which the
corporation has the exclusive right and benefit.’” Carpenter, 484 U.S. at
26, 108 S. Ct. at 320 (quoting 3 W. Fletcher, Cyclopedia of Law of Private
Corporations § 857.1, at 260 (rev. ed. 1986)). Such information includes
trade secrets, see id., which are defined as “‘any formula, pattern, device
or compilation of information which is used in one’s business, and which
gives him an opportunity to obtain an advantage over competitors who do
not know or use it.’” Ruckelshaus, 467 U.S. at 1001 (quoting Restatement
(Second) of Torts § 757, cmt. b). In our case, ETS’s TOEFL exam
satisfies this definition. According to the indictments, ETS is in the
business of preparing and administering the TOEFL exam. The
examination provided ETS with a competitive advantage over others in
the business of test administration insofar as performance on the exam,
according to the indictments, was the yardstick by which educational
institutions measured English proficiency in their admissions processes.
The indictments also indicate that ETS therefore goes to great lengths to
protect the confidentiality and exclusivity of its exam. No person is
permitted access to sit for the TOEFL exam unless he pays a fee, promises
to preserve the confidentiality of the exam, and represents to ETS that he
is the person whose name and address were used in applying to sit for the
exam. The facts alleged …are therefore sufficient to conclude that the
TOEFL exam and its questions were confidential business information.
The only question remaining with respect to this theory of mail fraud
liability is whether Defendants engaged in a scheme "to defraud" ETS of
such property.
As we set forth above, McNally held that “the words ‘to defraud’
commonly refer ‘to wrongdoing one in his property rights by dishonest
methods or schemes,’ and usually signify the deprivation of something of
value by trick, deceit, chicane, or overreaching.’” 483 U.S. at 358
(quoting Hammerschmidt v. United States, 265 U.S. 182, 188 (1924). In
accordance with McNally, we consider whether the superseding
indictments allege that Defendants engaged in a scheme to deprive ETS of
a property right in its confidential business information, and whether that
deprivation was accomplished through dishonest means.
Carpenter dictates that ETS “had a property right in keeping
confidential and making exclusive use” of its confidential business
information. 484 U.S. at 26. Carpenter further instructs that the
Government need not allege that ETS suffered a monetary loss. Id.
(“Petitioners cannot successfully contend . . . that a scheme to defraud
requires a monetary loss, such as giving the information to a
competitor.”). Rather, for purposes of showing a mail fraud violation, it is
sufficient to allege that ETS “has been deprived of its right to exclusive
use of the [confidential business] information.” Id. at 26-27. …According
to the indictments, ETS assiduously protected the exclusivity of its
TOEFL exam, allowing access only to those persons who agreed to keep
the exam confidential and who provided a representation as to their
identity. Defendants' alleged scheme, however, required hired test-takers
to gain access to ETS’s TOEFL exam on terms other than those prescribed
by ETS. The indictments allege that ETS would not have allowed the
hired test-takers to sit for the exam had it known that they were not
actually the Defendants, and had it known that they did not actually agree
to preserve the exam’s confidentiality. Accordingly, it was sufficiently
alleged that ETS was deprived of a recognized property interest: the “right
to decide how to use” its confidential business information, i.e., the
TOEFL exam.
Page 888 – Add at the end of Note 1:

The Second Circuit addressed a similar fact pattern in United States v. Santos,
425 F.3d 86 (2d Cir. 2005) and concluded that the flashing of a police badge does not
constitute the “wrongful use of actual or threatened force, violence, or fear, or under
color of official right” for the purposes of 18 U.S.C. § 1951(b)(2) (federal robbery statute).
The defendants in this case impersonated DEA agents and attempted to purloin (phony) drugs from an
actual (undercover) DEA agent. The court evaluated the possible use of force according to the following
criteria and reasoning:

When we are examining whether there is Hobbs Act force in a factual context that does
not involve the use of a weapon, it is especially important for us to carefully consider (1)
how a reasonable person in the victim's position would perceive an action (i.e. the
flashing of a badge); (2) the perpetrators' knowledge that a victim would perceive such
action to be part of a pattern of violence, intimidation, or threats; and (3) the perpetrators'
intention to exploit their victim's fears. . . . Once a police badge is displayed, a reasonable
person would perceive the badge to indicate that “the jig was up,” rather than to
immediately indicate an imminent threat of force. Of course, if the “victim” decided to
resist arrest, the badge holder might conceivably take additional action that communicates
a threat of force. However, when viewing the immediate response to the flashing of the
badge alone, which is what we are asked to do in this case, we do not find . . . force.
Moreover, the fact that the two individuals who approached [the authentic DEA agent]
were unarmed indicates that defendants expected that the badge alone would allow them
to take the property unimpeded, thereby obviating the need to use force.” Santos, 425
F.3d at 95.

What are the differences between Brown and Santos? Is it a matter of public opinion
concerning police behavior and the criminal justice system in two different eras? The
differences between the victims?

Chapter 15 – Rape

Page 966 – Add at end of Section K:

Rapes and attempted rapes have fallen eighty-five percent since 1979, according
to the latest BJS National Crime Victimization Survey. This signifies a drop from 2.5
rapes per 1000 people to 0.4 per 1000 annually. (Ninety-seven percent of respondents
who reported being attacked were female.) In addition, the FBI Uniform Crime Report
supports the long-term trend of a decline in rapes, indicating a thirteen percent decline in
rape and attempted rape since 1991. While the report demonstrates a 0.2 percent decrease
in rapes from 32.3 to 32.2 per 100,000 from 2003 to 2004, it shows an increase from
93,883 offenses committed to 94,635. The BJS and FBI surveys differ in that the FBI
study only includes offenses committed against women, and while it includes forcible
rape and attempted rape, it does not include statutory rape or other sexual offenses. An
estimated sixty-one percent of rapes are still not reported.65

Some recent trends and data concerning rape:

College campuses. Rape on college campuses has remained steady. Out of 4446
women surveyed, one out of thirty-six reported being raped during the school year.
Twenty to twenty-five percent of women experience rape or attempted rape during
college, although less than five percent of these are reported to the police. In ninety
percent of cases, the victim is acquainted with the offender. The majority of rapes occur
in residences, with sixty percent at a victim’s residence, thirty-one percent at other on-
campus housing, and ten percent at frat houses.

Many college victims reported that they had not been drunk at the time of the
attack, but that they suspected being drugged. Stephanie Brown, a psychologist for San
Diego State University Counseling and Psychological Services, says that this was the
case for one-third of the date rape victims she has counseled. Rape Victim Advocacy
Program Executive Director Karla Miller reports: “It’s become a sport at parties. I’ve
heard of incidents where women are fed drinks out of a punch bowl, and guys are told to
drink out of a keg.”66

High school/middle school students: Girls between sixteen and nineteen are
sexually assaulted at two times the rate of other age groups, and nearly ten times more
often than women older than twenty-five. More than ten percent of high school girls say
they have been forced to have sex at least once. While rape victims in the general
population typically receive sympathy and support from a close network, high school and
middle school rape victims often find themselves ostracized at school, and rejected by
their closest friends:

--“One teenage rape victim was pelted with pennies by members of the high
school’s football team from the end of her sophomore year till she graduated, a
derogatory gesture intended to indicate she was a prostitute.”
--“A 17-year old rape victim at a different school was repeatedly confronted by
students who demanded to know whether she had ‘lied’ about the rape by a
classmate who attacked her in a neighborhood park last year.”
--“Earlier this year, friends of the boy convicted of sexually assaulting three girls
at Folsom High School made up T-shirts reading ‘Free (the rapist),’ and wore

65
Jennifer Martinez and Frank Greve, Sexual crimes on the decline, reports show; Sharp drop seen in rapes,
attempted rapes over the past 30 years, Richmond Times Dispatch (Virginia), May 14, 2006, at A9; U.S.
Department of Justice, Federal Bureau of Investigation, Uniform Crime Report, 2004; U.S. Department of
Justice, Office of Justice Programs, Bureau of Justice Statistics: The National Crime Victimization Survey:
Rape rapes continue to decline, 2004.
66
Lydia Osolinsky, Alcohol consumption prevalent in rape cases, Daily Aztec, November 9, 2004; Nick
Peterson, Rape statistics remain steady at U. Iowa, Daily Iowan, December 2, 2005.
 them to school briefly before school officials put a stop to it, fearing the victims
would be further traumatized.”67

Rape by acquaintances. So-called acquaintance rape is prevalent in the general

population, not only on college campuses. In seventy-five to eighty-five percent of all
sexual assaults, the victim knows the offender.68

Rape shield laws. The debate over rape shield laws has intensified with the high-
profile rape trials of Kobe Bryant and the Duke lacrosse players. The defense argues that
rape shield laws should be eliminated to allow defendants to properly defend themselves.
The prosecution argues that the Kobe Bryant case demonstrates the importance of rape
shield laws (the prosecution dropped the criminal case after intense media scrutiny and
details of the victim’s sex life were exposed). Public treatment of the victims in both
these cases, in which the victims seem to have been put on trial as much as if not more
than the alleged perpetrators, may have persuaded rape victims to stay silent. Michelle
Anderson, a law professor at Villanova University School of Law, explains: “The fear of
being put on trial themselves is why rape victims don’t come forward.”69

Third-party suits. Rape victims are increasingly bringing suit against third-parties
who they claim are at least partially responsible for their attack. These third-parties
include cities, private property owners, and website owners:

Suing the property owner:

In 1992, a Queens woman opened her apartment door to ex-convict Lawrence Toole, who
then beat, raped and sodomized her at gunpoint. Right before she let Toole in, the woman
had received a phone call from her live-in boyfriend saying he was coming up to the
apartment. The woman sued the building owners and the building’s security service for
negligence and for breaching the “implied warranty of habitability by failing to properly
staff the security desk or secure the complex.” The Supreme Court dismissed the case,
saying the woman had failed to show that the landlord’s negligence was the direct cause
of her injuries. In July 2001, the New York State Court of Appeals ruled that the woman
may sue the landlord for her injuries.70
In 2001, a Chicago woman was mugged and rape in a dark area outside her building. The
woman sued her landlord for neglecting to provide enough lighting around the building.
The woman claimed that she asked the landlord to fix the lights numerous times and the
landlord agreed to, although she never did. A county judge dismissed the suit, saying that
landlords cannot “be held responsible for the actions of others on their premises.” The

67

Harassment plagues teen rape victims, Sacramento Bee, August 12, 2004, at A1.
68
Merrick Wiedrich, Police: Victims often know rapist, The Crimson White, August 30, 2004.
69
Sara B. Miller and Amanda Paulson, The dismissal of the Kobe Bryant case has stirred talk about whether
to change shield laws for accusers, Christian Science Monitor, September 3, 2004, at 3; Recent rape trials
set dangerous precedent, Daily Bruin, July 12, 2004.

70
Natalie Keith, Court: Rape victim can sue landlord, Real Estate Weekly, July 11, 2001.
state appellate court held that the woman may sue the landlord because this case is about
alleged promises made by a landlord, not about third-party liability for criminal acts.71
In 2001, Marie Kleisch was raped in a lecture hall at Cleveland State University. Kleisch
sued the property owner and property police for negligence in protecting Kleisch. Both
the trial court and the court of appeals found that the police were entitled to civil
immunity, and that the property owner was not responsible because the rape was
unforeseeable.72
In 2005, a woman was kidnapped from her friend’s apartment and sexually assaulted by
an intruder. The woman sued her friend’s landlord for neglecting to provide a doorman
for a downtown high-rise, and won a $1.5 million settlement.73
In 2006, a St. Louis woman was sexually assaulted inside her apartment after a man
climbed into her building through a coal chute and then took the stairs up to her
apartment. The woman sued her landlord for neglecting to protect residents from outside
intruders and reached a $400,000 settlement.74

Suing the adjacent property owner:

In 2001, Margaret Nichols was raped at gunpoint at her mother’s home in Texas.
Nichols claims that the man who raped her was a vagrant and was living on the
property adjacent to her mother’s land; she sued the property owner. The trial
court and the court of appeals both dismissed Nichols’ claim, saying that the
property owner did not owe a duty to Nichols since the crime had not occurred on
his land, and that even if he had owed her a duty, the crime would have had to be
foreseeable, which it was not.75

Suing the city:

In 2003, a Queens woman was raped by a gang of homeless men who lived in a
park in Queens. The woman sued New York City and NYC Transit for fifty
million dollars. She claims that for ten years, activists had alerted the two groups
to the homeless community in the park, and the danger they posed to commuters,
but neither the city nor NYC Transit had taken any measures to protect
commuters. The suit claims that NYC & NYC Transit’s failure to act was “a
direct proximate cause of Ms. Doe’s abduction and subsequent beating and
rape.”76

Suing the website:

71
Steve Patterson, Rape victim OKd to sue landlord for poor lighting: Woman says she was promised action
to improve dark exterior, Chicago Sun Times, December 26, 2005, at 9.
72
University not liable for unforeseeable rape of woman.; Kleisch v. Cleveland State Univ., No. 05AP-289
(Ohio Ct. App. Mar. 21, 2006), Security Law Newsletter, May 2006.
73
Mike Nixon, Sexual assault cases may include more third-party suits, St. Louis Daily Record/St. Louis
Countian, April 24, 2006.
74
Id.
75
Owner not liable for assault on victim’s adjacent property.; Nichols v. Tanglewood Manor Apartments,
No. 14-04-00864-CV (Tex. App. Feb. 7, 2006), Security Law Newsletter, April 2006.

76
Joshua Robin, Rape Victim to Sue The City of New York; Seeking $50 million, NewsDay, March 5,
2003.
 In April 2006, a fourteen-year old Texas girl was allegedly contacted through her
MySpace.com account by nineteen-year old Pete Solis. In May, after they had
exchanged numerous e-mails and phone calls, he picked her up at school, took her
to a movie, and then sexually assaulted her in a parking lot. The girl and her
mother are suing MySpace, its parent company News Corp., and Solis for thirty
million dollars. The lawsuit claims that the website’s security measures are
negligent and “utterly ineffective,” and includes news reports of other assault
cases in which young girls were initially contacted through their MySpace
accounts. Adam Loewy, the girl’s lawyer, explains that MySpace only has a
warning on the “Tips for Parents” pages that users must be fourteen or older. The
website does not require a credit card number and does nothing to verify the age
of the user.77

Prison rape. In 2005, the Bureau of Justice Statistics released its first annual
report on sexual abuse in prisons. The study found that in 2004, there had been 8,210
allegations of rape in incarceration facilities nationwide, with 2,100 substantiated. There
were 315 allegations of sexual violence per 100,000 inmates, which broke down to 131
allegations of staff sexual misconduct and 116 allegations per 100,000 of inmate-on-
inmate sexual abuse. These estimates are conservative: while many rapes go unreported
outside of prison, inmates are even less likely to report sexual abuse due to fear of
reprisal from both the perpetrator and/or prison officials.78

Traditionally, sanctions for perpetrators, both inmates and staff, have either been
very lax or nonexistent. Inmates have difficulty pursuing charges in the face of
understaffing, budget cuts, and internal investigations by prison officials who deny the
abuse occurs. Those cases that are substantiated rarely make it far in court, obstructed by
reluctant prosecutors and unsympathetic juries. Extremely high profile cases, often
involving female victims and federal agents, are often the only type of inmate sexual
abuse case that receives attention in the criminal justice system:

--In June 2006, a federal indictment was handed down against six guards at a
Tallahassee federal women’s prison. The guards are accused of having sex with at least
ten inmates in exchange for contraband and employing bribes and intimidation to keep
the inmates silent. The indictment was a result of a federal undercover operation at the
prison.79

Because of the specific profile a case must fit to be addressed in the criminal justice
system, inmates are increasingly seeking justice in a civil context, filing civil suits

77
Claire Osborn, Teen, mom sue MySpace.com for $30 million, American-Statesman, June 20, 2006.
78
Allen J. Beck and Timothy A. Hughes, Special Report: Prison Rape Elimination Act of 2003: Sexual
Violence Reported by Correctional Authorities, 2004, U.S. Department of Justice, Office of Justice
Programs, Bureau of Justice Statistics, NCJ 210333, July 2005.

79
Patrick Oppmann and Terry Frieden, Sex and drug arrests triggers deadly Florida prison gunfight,
CNN.com, June 22, 2006.
against prison officials for negligence in failing to protect them from sexual abuse by
other inmates.

--Roderick Keith Johnson was an inmate at the James A. Allred Unit in Texas. He
brought suit against fifteen prison officials for neglecting to protect him from sexual
abuse (nine were eventually dropped from the suit). Johnson claimed that prison gangs
kept him as a sex slave, renting him out for three to seven dollars. Johnson reported the
abuse to prison officials, who neither investigated his claims nor moved him out of
danger. No medical evidence was presented, as prison officials did not perform any rape
kits on Johnson. None of the prison guards were found liable. It is arguable whether the
case would even have made it to court had the ACLU not filed the federal civil rights suit
on Johnson’s behalf. (Decided October 18, 2005)80

Perhaps the remedy for sexual abuse in prison cannot be found in the courtroom,
and must instead rely on general prison reform. The Prison Rape Elimination Act (2003)
provides states with grants to implement programs to prevent sexual abuse. So far, many
states have implemented programs to train officers in how to properly deal with sexual
abuse reports; established committees to study prison rape and formulate proposals to
reduce it; informed inmates about how to protect themselves from abuse; and
implemented hotlines for inmates to report abuse.81

Prosecutions of rape outside of prison are more successful than rape prosecutions
in the prison system. Sexual abuse cases involving female victims are generally more
successful than those involving male victims. What does this say about how society
views crime victims? Are some victims more “worthy” than others? Is the civil system
sufficient for inmate sexual abuse victims seeking recourse? Or is there something
inherently beneficial to filing a criminal suit? Note the disparity in resources: indigents
receive free criminal defense counsel, while defendants filing civil suits often cannot do
so without help from groups such as the ACLU.

How successful will the Prison Rape Elimination Act be in reducing sexual abuse
within prisons? Are states implementing effective programs to curb sexual abuse within
prisons? How much can the abuse actually be curbed? Is the problem of sexual abuse in
prisons necessarily an offshoot of the poor condition of the prison system in the U.S.
generally? Or is sexual abuse in prison an inevitable manifestation of the power struggle
among inmates?

80
Angela K. Brown, Jurors reject convict’s prison rape lawsuit, Associated Press, October 19, 2005; Mike
Ward, Inmate’s case raises profile of prison rapes, Austin-American Statesman, October 24, 2005, at A1;
ACLU Says Faulty Investigation by Texas Corrections Department Led to Grand Jury’s Failure to Indict
Rape Suspects, American Civil Liberties Union, February 26, 2004, at http://www.aclu.org.
81
Samira Jafari, Prison system takes steps to crack down on inmate sexual violence, Associated Press, April
1, 2006; U.S. Congress, Prison Rape Elimination Act, 108th Cong., 2003. Public Law 108-79, Activists:
Prison rape law makes minimal stride in first year, Corrections Professional, February 11, 2005.
 The public attention to and consequences for inmate homicide provide a stark
contrast to inmate sexual assault investigations. The homicide rate in jails and prisons has
steadily decreased since 1980, when there were fifty-four homicides per 100,000 inmates
in state prisons. In 2003, there were six homicides per 100,000 in state prisons and jails
combined. In 2004, there were 315 allegations of sexual violence per 100,000 inmates.
There were 8,210 allegations of rape or nonconsensual sex, 2,100 of which were
substantiated. Prison administrators reported that in eighty-six percent of prisons and
seventy-six percent of jails with substantiated allegations, perpetrators were subject to
legal sanctions. However, those cases that made it to court often did so only to face
unsympathetic juries. Furthermore, in contrast to homicide cases, sexual assaults are
more difficult to prove because medical evidence is difficult to obtain, victims are
reluctant to come forward for fear of reprisal, and allegations are easily denied or
explained away by prison officials. While the number of sexual assault allegations is
already high, these factors indicate that estimates are still conservative.82

Does the crueler nature of sexual abuse behind bars in a confined area, with
literally nowhere for the victim to escape, in and of itself warrant a greater punishment?
Should the punishment for rape in prison be enhanced so that the deterrent purpose of
incarceration will be served? Note: A homicide conviction can increase the length of time
served to life or the death penalty, while a rape conviction may only increase the length
of time served by a few years.

82
National Crime Victimization Survey, U.S. Department of Justice, Office of Justice Programs, Bureau of
Justice Statistics, 2004; Allen J. Beck and Timothy A. Hughes, Special Report: Prison Rape Elimination
Act of 2003: Sexual Violence Reported by Correctional Authorities, 2004, U.S. Department of Justice,
Office of Justice Programs, Bureau of Justice Statistics, NCJ 210333, July 2005.