Purposes of Criminal Law

Parties to Crime

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  Common Law: numerous technical distinctions that we’re not responsible for
  
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  Today, you are guilty of a crime if:
  
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    You perpetrate it yourself, or
    
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    You help or encourage someone else to perpetrate it
    
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  Aider and abetter is guilty of substantive crime, regardless of whether:
  
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    Crime is felony or misdemeanor
    
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    Help rendered before or during the commission of the crime
    
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  An accomplice cannot be guilty of any of the inchoate crimes as an accomplice
  
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  Under the MPC, a person who would be an aider / abettor if the crime were committed is guilty of attempt if the other person doesn’t commit or go through with crime, 5.01(3), p. 490
  
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  Accessory after the fact (helping escape apprehension or prosecution) much less serious than the substantive crime itself; accessory is NOT guilty of substantive crime
  
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  For accessory after the fact:
  

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  Have to render aid or assistance to the perpetrator after the offense has been completed (offense must be completed)
  
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  Mens rea requirement: need the knowledge that you’re aiding the person and that the person had committed the felony
  
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  For accessory after the fact to X, you have to analyze being an “accessory” to each individual crime, if the person committed a lot of crimes. If A helped B, ask what crimes A knew that B committed.
  
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  You might be able to have an attempt to be an accessory after the fact
  

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  Even if a person can’t be found guilty of a substantive crime in itself, as a matter of law, a person can be guilty of that substantive crime as an aider and abettor
  
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    Ex: “Boy under 14” rule about rape – does not apply when boy aids another in raping someone
    

MPC pp. 568-569, deals with complicity

1. 
   A person is guilty of an offense if he commits it, or another for whom he’s legally accountable commits it
   
2. 
   A person is legally accountable for another when
   
   1. 
      W/ kind of culpability sufficient for offense, he causes an innocent / irresponsible person to engage in that conduct
      
   2. 
      Made accountable by the code, or
      
   3. 
      He’s an accomplice
      
3. 
   A person is an accomplice when:
   
   1. 
      W/ purpose of promoting / facilitating commission, he:
      
      1. 
         Solicits another to commit it (MPC incorporates solicitation)
         
      2. 
         Aids, agrees, or attempts to aid another in planning / committing (MPC incorporates conspiracy)
         
      3. 
         Having a legal duty to prevent the commission of the offense, he fails to do so
         
   2. 
      He’s declared so by law
      
4. 
   When causing a particular result is an element of the offense, an accomplice in the conduct causing that result is a conduct in the offense, if he acts w/ the culpability sufficient for commission of offense
   
5. 
   A person who’s legally incapable of committing an offense himself may be guilty if it’s committed by conduct for another for whom he’s legally accountable (see (2)), “unless such liability is inconsistent with the purpose of the provision establishing his incapacity”
   
6. 
   When a person is not an accomplice
   
   1. 
      Unlike conspiracy & solicitation, just making an effort to thwart is enough
      
7. 
   An accomplice can be prosecuted even though the main guy hasn’t been prosecuted or convicted, or has been convicted of something else, or is immune, or has been acquitted
   

Hindering Apprehension of prosecution, 242.3 p. 569

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  This is the “accessory after the fact” equivalent, pretty much just says when a person is guilty of the crime
  
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  It’s graded substantially lower than the actual crime
  

Aiding consummation of crime

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  Same deal, but is aiding another accomplish “unlawful object of a crime” (laundering the profits)
  

Compounding

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  Misdemeanor to accept “pecuniary benefit” to refrain from reporting the suspected commission of offense, or information relating to offense
  
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  It’s an affirmative defense if the person believed that this amount <= the amount that the actor was due in restitution
  
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    Ex: store owner agrees not to report a thief who returns the merchandise
    

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  Neither MPC nor CL provides any defense to pulling out after the commission of the substantive crime
  
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    Once you commit the substantive crime, that’s it
    
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    But if you don’t commit it, you don’t commit it
    
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  Common Law: once you go far enough to be guilty of any of the inchoate crimes, nothing you can do afterwords will absolve your guilt
  
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    You can avoid guilt by withdrawing before you go far enough to become guilty of any of these 3
    
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    However, if you’re involved in solicitation or conspiracy, and you withdraw early enough, you might be able to avoid guilt for the substantive crimes
    
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    Don’t have to prevent crime to withdraw from solicitation / conspiracy, but you do have to effectively communicate withdrawal – personally or through another medium, give adequate notice. Peterson
    
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  Withdrawal sufficient to prevent accessory status:
  
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  MPC:
  
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    “Complete” and “Voluntary” renunciation (5.01(4), but applies to all)
    
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      Applies to all the inchoate crimes
      
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      Not voluntary if:
      
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        Motivated by circumstances not present / apparent when actor began conduct, and
        
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        Those circumstances make it harder to accomplish criminal purpose, or increase chance of detection / apprehension
        
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      Not complete if:
      
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        Postponing crime to more advantageous time, or
        
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        Transferring criminal effort to a similar objective / V
        
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    Additional requirements (similar for all)
    
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      Conspiracy, 5.03(6), p. 539
      
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        Must thwart the success of the conspiracy
        
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      Attempt, 5.01(4), p. 490
      
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        Must abandon attempt or otherwise thwart success; this implies that abandonment does thwart success (solo crime), so crime must not occur for RoP
        
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      Solicitation, 5.02(3), p. 491
      
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        Must, after soliciting person, either persuade the person not to go through with it or otherwise prevent commission of crime
        

International Crimes

Reasons

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  Retribution, Deterrence (most often general, not specific), Incapacitation,
  
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  Probably not rehab, since these people will be in prison forever
  
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  Take away blame from nationalities, impose on individuals
  
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  Rule of law over vengeance is important internationally, not just w/in nations
  

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  Treaties
  
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    Basic rule of interpretation: when the meaning of a treaty is contested, you are to go by the “ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”
    
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    Negotiating papers are the equivalent of legislative history, but can only be used for:
    
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      To confirm the text
      
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      To resolve language that is ambiguous or obscure
      
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      To avoid results that are “manifestly absurd or unreasonable”
      
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  Customary International Law
  
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    Binds nonparties; rules of treaty interpretation are now custom
    
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    General and consistent practice of state, and
    
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    Must arise out of a sense of legal obligation
    
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    Question of how close to 100% of states do you have to get, for custom
    
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  General Principles
  
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    Countries generally follow b/c they think it’s a good idea, but not obliged to follow
    
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  Hierarchy:
  
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    Treaties first, then customary law, then general principles
    
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    Exception: Jus Cogens trump everything else
    

If you occupy someone else’s territory, you have the responsibility as an occupier to maintain law and order, and with that responsibility comes the right to use force in its maintenance

The substantive crimes

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  Crimes against peace
  
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    Other than “I wasn’t involved,” self-defense may be only defense
    
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  War Crimes
  
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    4 geneva conventions, prescribing humane treatment of: soldiers captured at land, at sea, prisoners of war, and civilians
    
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    Common articles 2 and 3: p. 49
    
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      2: When the conventions apply to international armed conflicts
      
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      3: when the conventions apply to non-international armed conflicts
      
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    Protected persons (p. 50, Geneva convention) – only applies to POWs:
    
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      Persons who find themselves in the hands of 1) a Party to the conflict or 2) an occupying power, either of which they are not nationals
      
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      Nationals of states that aren’t parties to the convention aren’t bound by it
      
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    Pp. 51-54, steps to be taken to safeguard protected persons
    
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    P. 58, Art. 147 – defines grave breaches
    
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    To find a war crime under the US statute for a civil war, have to have both – fits under article 3 (to fit a civil war) and under 147 (grave breaches)
    
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    2 defenses that don’t work
    
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      “I was just following orders” – so long as you knew or should have known that what you were doing was illegal, you had a duty to disobey
      
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      Doesn’t have personal knowledge of the events – it’s enough that a person should have known
      
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        Rank is relevant for both of these defenses, as to “should have known”
        
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  Crimes against humanity
  
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    ICC definitions (p. 34): “any of the following when committed as part of a widespread or systematic attack directed against any civilian population:”
    
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      Murder, extermination, enslavement, deportation/forcible transfer, imprisonment/severe deprivation of physical liberty against IL, torture*, sexual violence, persecution*, enforced disappearance, apartheid, other inhumane acts of similar character
      
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    “Directed against a civilian population” = course of conduct, multiple commission of above acts against any civilian population, pursuant to / in furtherance of a state/org policy to commit such attack
    
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    Torture = intentional infliction of severe pain or suffering, but doesn’t include such pain & suffering pursuant to lawful sanctions
    
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    Persecution = intentional & severe deprivation of fundamental rights, contrary to IL, by reason of identity of group (impermissible groups listed in statute)
    
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    Can have crimes in peacetime, but probably needs to be more spectacular than common domestic crimes
    
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    Don’t necessarily need governmental participation in crime to qualify
    
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    This crime does not cover gender persecutions
    
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    Not a subcrime of war crimes; set it down next to war crimes provision, invent hypos, especially look at who the victims are
    
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  Genocide
  
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    Elements (Convention, p. 70):
    
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      Acts committed:
      
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        Killings
        
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        Causing serious bodily or mental harm
        
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          US understanding #2: mental harm = permanent impairment through torture, drugs, or similar means (p. 73)
          
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        Deliberately inflicting upon group conditions of life calculated to bring apart its destruction, in whole or in part
        
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        Imposing measures to prevent births w/in group
        
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        Forcibly transferring children of group to another group
        
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      With specific intent to destroy a group, in whole or in part
      
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        US understanding #1: this requires intent to destroy “in whole or in substantial part” (p. 73)
        
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      Group must be national, ethnic, racial, or religious group
      
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    Genocide, incitement, conspiracy, attempt, solicitation all punishable
    
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    Major difference between genocide and crimes against humanity: genocide requires specific intent to “destroy, in whole or in part” a given “group”
    

Jurisdictional Authority / Specific statutes

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  Principle of universal jurisdiction, articulated at Nuremberg:
  
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    Every country has the power to try any individual for an international crime; some commentators limit this to particular crimes
    
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    Not without enabling legislation?
    
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  Nuremberg (p. 4)
  
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    Anyone who, acting w/in interests of Axis powers, committed listed crimes
    
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    Had jurisdiction over crimes against peace, war crimes, crimes against humanity – but not genocide (though the Holocaust did motivate); crimes listed violations on that page
    
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    Not permanent or generic
    
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    P. 60 – jurisdiction over certain crimes; didn’t have jurisdiction over crimes divorced from wartime setting & not linked to any wartime objective (i.e., pre 1939 Holocaust)
    
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  Tokyo
  
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    Parallel to Nuremberg, but text doesn’t say specifically what kind of jurisdiction
    
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  Allied Control Counsel Law No. 10
  
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    Authorized each of the 4 Zone Commanders to arrest suspected war criminals & to establish “appropriate tribunals” for their trial
    
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    P. 60 – jurisdiction over crimes against humanity
    
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  Yugoslavia
  
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    Jurisdiction over all offenses committed in the former Yugoslavia from 1991 to present
    
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    For Crimes against humanity, the crimes must be committed in armed conflict – possibly more restrictive than Nuremberg, b/c you can’t connect such crimes to preparations for war
    
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  Rwanda
  
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    Security Counsel resolution defined this tribunal’s essential elements
    
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    Jurisdiction over crimes committed in Rwanda, or by Rwandan nationals
    
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    Only has jurisdiction over crimes committed in 1994
    
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    Jurisdiction over “genocide and other serious violations of international humanitarian law”
    
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    Contains no restrictive language about crimes against humanity, as in Yugoslavia – but probably not a big issue b/c of the limited time window
    
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  ICC
  
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    Jurisdiction over genocide, crimes against humanity, war crimes
    
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    Also over crimes against peace, but jurisdiction doesn’t attach unless Security Counsel passes a resolution declaring a particular country as the aggressor (so, citizens of 5 permanent member states can’t be tried)
    
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    Jurisdiction over individuals who are parties, individuals who commit crimes in the territory of state-parties
    
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    National jurisdiction always has priority, except when:
    
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      National legal system has collapsed, or
      
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      A national system refuses or fails to carry out its legal obligations to investigate, prosecute, or punish
      
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    US is not a party, but citizens of nonparty states are still subject to ICC jurisdiction if the crime is committed w/in a party’s territory
    
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    ICC definitions for war crimes: too many to list (pp. 36-40), apparently narrower than the whole class of crimes, but to summarize:
    
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      Grave breaches of Geneva Conventions of 8/12/1949
      
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      Other serious violations of laws & customs of international armed conflict, w/in IL framework – 26 listed
      
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      For armed conflicts not of international character, serious violations of common article 3 (acts committed against persons taking no active part in hostilities)
      
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      Other serious violations of laws & customs applicable in armed conflicts not of international charcter
      
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        Above 2 do not apply to “internal disturbances”
        
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  US domestic prosecutions
  
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    For War Crimes
    
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      Must be a grave breach of the Geneva Conventions
      
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        1949 conventions as to laws of warfare
        
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        Protocols to which US is a party (US not a party to 1977 protocols)
        
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      Breacher or victim must be a member of the US Armed Forces or a US National
      
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    For Crimes Against Humanity – no domestic provision exists
    
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    For Genocide:
    
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      Replicates list of offenses above
      
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      Punishes incitement (attempt, conspiracy, solicitation not included in statute but are elsewhere in US domestic law)
      
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      Definitions list: on p. 75
      
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      Important definition: “substantial part” means “a part of a group of such numerical significance that the destruction / loss of that part would cause the destruction of the group as a viable entity within the nation of which such group is a part.”
      
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      Offense must be committed within US, or the alleged offender must be a national
      

3 different approaches

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  Plain meaning rule: follow the literal interpretation of the text
  
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  The “Golden Rule”: Follow the plain meaning, but if the plain meaning produces an internally inconsistent or an absurd result, then depart from it
  
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  Social purpose approach: follow the interpretation that best effectuates the purpose that the law was designed to further (Silverman)
  
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    Danger – judge has more latitude to impose own personal morality
    
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  Still have to interpret the plain meaning, what is “absurd,” or have to define the social purpose (Ex: Whitney & voter fraud statute)
  

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  Deficiencies of language and human imagination prevent you from always having an answer to legislative intent
  
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  Can’t know what the legislature would have wanted for circumstances they didn’t consider
  

Blackstone

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  Judges overruling a statute is subversive to democracy (we probably wouldn’t agree with this today)
  
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  But, OK when judges disregard a statute on a collateral matter, b/c then they’re dealing with something that the legislature didn’t anticipate
  

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  There’s no such thing – Radin
  
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  Of course there is – Landis
  
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  Middle view – there is, but only use it when statute is ambiguous, and even then confine search for legislative history to more reliable materials like committee reports, thus 2 different questions:
  
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    Are we allowed to look at legislative purpose?
    
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    If so, what sources to discern legislative purpose?
    

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  Criminal statutes are to be construed strictly, rather than expanding possible criminal liability – avoid finding people guilty when it’s not clear the law is meant to punish them
  
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  The expression of some is the exclusion of others
  
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    Listing things in a statute excludes things not on the list
    
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    Ex: Holy Trinity Church, bringing in ministers from abroad
    

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  Ustem Generis: when there’s a list of specifics, followed by a generality, the court will usually not interpret the general part literally, but will assume it’s only meant to apply to the same types of things as the specific things enumerated
  

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  But, general word does still have its own meaning. Caminetti
  
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  Ex: “prostitution, debauchery, or other immoral purpose” Caminetti