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12th
Criminal Law
edition
JOEL SAMAHA
Horace T. Morse Distinguished Teaching Professor
University of Minnesota
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For My StudentS
about the author

Professor Joel Samaha teaches Criminal Law and Criminal Procedure and,
until 2014, Introduction to Criminal Justice at the University of Minnesota. He
is both a lawyer and a historian whose primary interest is crime control in a
constitutional democracy. He received his BA, JD, and PhD from Northwestern
University. Professor Samaha also studied under the late Sir Geoffrey Elton
at Cambridge University, England. He was named the College of Liberal Arts
Distinguished Teacher in 1974. In 2007, he was awarded the title of University
of Minnesota Distinguished Teaching Professor and inducted into the Academy
of Distinguished Teachers.
Professor Samaha was admitted to the Illinois Bar in 1962, where he practiced
law briefly in Chicago. He taught at UCLA before going to the University of
Minnesota in 1971. He has taught both television and radio courses in crimi-
nal justice and co-taught a National Endowment for the Humanities seminar
in legal and constitutional history. At the University of Minnesota, he served
as chair of the Department of Criminal Justice Studies from 1974 to 1978.
In addition to Law and Order in Historical Perspective (1974), an analysis
of law enforcement in pre-industrial English society, Professor Samaha has
transcribed and written a scholarly introduction to a set of local criminal jus-
tice records from the reign of Elizabeth I. He has also written several articles
on the history of criminal justice, published in the Historical Journal, Ameri-
can Journal of Legal History, Minnesota Law Review, William Mitchell Law
Review, and Journal of Social History. In addition to Criminal Law, he has
written two other textbooks, Criminal Procedure, now in its ninth edition,
and Criminal Justice, now in its seventh edition.
Brief Contents
Chapter 1 Criminal Law and punishment in u.S. Society: an overview 2
Chapter 2 Constitutional Limits on Criminal Law 38
Chapter 3 the Criminal act: the First principle of Criminal Liability 94
Chapter 4 the General principles of Criminal Liability: Mens Rea,

Concurrence, ignorance, and Mistake 124
Chapter 5 defenses to Criminal Liability i: Justifications 162
Chapter 6 defenses to Criminal Liability ii: excuses 204
Chapter 7 parties to Crime and Vicarious Liability 242
Chapter 8 inchoate Crimes 270
Chapter 9 Crimes against persons i: Murder and Manslaughter 320
Chapter 10 Crimes against persons ii: Sex offenses, Bodily injury,

and personal restraint 380
Chapter 11 Crimes against property 430
Chapter 12 Crimes against public order and Morals 484
Chapter 13 Crimes against the State 518
Glossary 544
Bibliography 554
Case Index 564
Index 568
iv
Contents
About the Author iii Chapter 2

Preface x Constitutional Limits on Criminal Law 38
The Principle of Legality 40
The Ban on Ex Post Facto laws 41
Chapter 1
The Void-for-Vagueness Doctrine 42
Criminal Law and punishment in u.S. Society: The Aims of the Void-for-Vagueness Doctrine 43
Defining Vagueness 44
an overview 2
CASE: State v. Metzger (1982) 45
Criminal Law in U.S. Society 5 The Rule of lenity 46
The Core Felonies 7 Proving Guilt in Criminal Cases 47
“all the rest” of U.S. Criminal law: Proving Criminal Conduct 47
The “Police Power” 8 Proof in Justification and Excuse Defenses 48
History of the Police Power 8 The Bill of Rights and The Criminal Law 49
Police Power and Public Morals 9 Right to “Freedom of Speech” 49
Crimes and Noncriminal Legal Wrongs 10 CASE: Commonwealth v. William P. Johnson and
Commonwealth v. Gail M. Johnson (2014) 50
Classifying Crimes 12 Right to “Bear arms” 54
Sources of Criminal Law 12 CASE: Woollard v. Gallagher (2013) 57
State Criminal Codes 13 The Right to Privacy 61
The model Penal Code (mPC) 14 CASE: Lawrence v. Texas (2003) 62
municipal ordinances 15 The Constitution and Criminal Punishment 65
The U.S. Criminal Code 16 Barbaric Punishments 65
administrative agency Crimes 17 Disproportionate Punishments 67
The Death Penalty: “Death Is Different” 68
Informal Discretionary law making 17
CASE: Kennedy v. Louisiana (2008) 68
Criminal Law in the U.S. Federal System 19 The Death Penalty for Mentally Retarded Murderers 72
Criminal Punishment in U.S. Society 20 The Death Penalty for Juvenile Murderers 73
The era of mass Imprisonment, 1970s–Present 20 Life without Parole for Juveniles 75
Defining “Criminal Punishment” 21 CASE: State v. Ninham (2011) 76
Prison Sentences 78
Theories of Criminal Punishment 22
Retribution 22 CASE: Ewing v. California (2003) 80
Prevention 24 The Right to Trial By Jury and Criminal
DETERRENCE 25 Sentencing 83
INCAPACITATIoN 26 CASE: Gall v. U.S. (2007) 86
REHABILITATIoN 26
empirical evaluation of Criminal law Theories 28
Chapter 3
The Text-Case Method 28
The Parts of the Case excerpts 30 the Criminal act: the First principle of
Briefing the Case excerpts 31 Criminal Liability 94
CASE: Carol Anne Bond (Defendant/Petitioner) v. United The Elements of Criminal Liability 96
States (2014) 32 The Criminal Act (Actus Reus): The First Principle
Finding Cases 35 of Liability 98
v
vi ContentS
The “Voluntary” act Requirement 99 Proving Defenses 164

CASE: State v. Burrell (1992) 100 Self-Defense 165
Sleep Driving 101
elements of Self-Defense 166
CASE: State v. Newman (2013) 102 Nonaggressor 166
Epileptic Seizures 106
CASE: State v. Batie (2015) 166
CASE: People v. Levy (2011) 106 Necessity, Proportionality, and Reasonable Belief 168
Status, Actus Reus, and the Constitution 110 CASE: U.S. v. Haynes (1998) 169
omissions as Criminal Acts 112 CASE: People v. Goetz (1986) 171
CASE: Commonwealth v. Pestinikas (1992) 114 Retreat 176
Possession as a Criminal Act 118 Domestic Violence 177
CASE: Williams v. State (2013) 119 Cohabitant Rule 177
Battered Women Who Kill Their Abusers 177
Chapter 4 CASE: State v. Stewart (1988) 179
Defense of others 186
the General principles of Criminal Liability:
Defense of Home and Property 186
Mens Rea, Concurrence, ignorance, and
New “Castle laws” 187
Mistake 124 “Right to Defend” or “License to Kill”? 188
Why the Spread of Castle Laws Now? 188
Mens Rea 126
Cases Under New Castle Laws 189
The Complexity of Mens Rea 128 JACqUELINE GALAS 190
Proving “State of mind” 129 RoBERT LEE SMILEY, JR. 190
Criminal Intent 129 SARBRINDER PANNU 190
General and Specific Intent 131 UNIDENTIFIED GAS MART CLERK 191
CASE: State v. Fleck (2012) 131 “Choice of Evils” 192

The model Penal Code (mPC) levels of Culpability 133 CASE: Toops v. State (1994) 194
Purposely 135
Consent 197
CASE: State v. Stark (1992) 135
CASE: State v. Shelley (1997) 198
Knowingly 137
CASE: State v. Jantzi (1982) 138
Recklessly 139 Chapter 6
Negligently 140
CASE: Koppersmith v. State (1999) 140 defenses to Criminal Liability ii:
Liability Without Fault (Strict Liability) 142 excuses 204
CASE: State v. Loge (2000) 143
The Insanity Defense 206
Concurrence 146 history of the Insanity Defense 207
Causation 146 The Insanity Defense: myths and Reality 209
Factual Cause 147 Proving Insanity 210
legal (“Proximate”) Cause 147 Tests of Insanity 212
CASE: State v. Bauer (2014) 148 The Right–Wrong Test (mcNaughtan Rule) 212
Failure of Proof “Defenses”: Ignorance and CASE: Myers III v. State (2015) 213
Mistake 151 The Irresistible Impulse Test 219
The Product of Mental Illness Test (Durham Rule) 220
Ignorance of law 152
The Substantial Capacity Test (Model Penal Code Test) 220
Mistake of Fact 152
a General Ignorance or mistake “Defense” 152 The Defense of Diminished Capacity 221
CASE: State v. Jacobson (2005) 154 The Excuse of Age 222
morality and Ignorance of the law: CASE: State v. K.R.L. (1992) 224
empirical Findings 156 The Defense of Duress 226
The Problem with the Duress Defense 227
Chapter 5 The elements of Duress 227
defenses to Criminal Liability i: The Defense of Intoxication 228
Justifications 162 The Defense of Entrapment 229
CoNTeNTS vii
Subjective entrapment Test 230 Voluntary Abandonment 294

CASE: Oliver v. State (1985) 231 CASE: Le Barron v. State (1966) 296
objective entrapment Test 233 Conspiracy 298
Syndrome Defenses 233 Conspiracy Actus Reus 298
Premenstrual Syndrome (PmS) 234 The Agreement 299
Post-Traumatic Stress Disorder (PTSD) 234 The Overt Act 299
CASE: State v. Belew (2014) 236 Conspiracy Mens Rea 299
Parties to Conspiracy 300
The Criminal objective of the Conspiracy 301
Chapter 7 large-Scale Conspiracies 301
parties to Crime and Vicarious CASE: Griffin v. Gipson (2015) 302
Liability 242 The Racketeer Influenced and Corrupt organizations
Act (RICo) 307
Parties to Crime 244 Prosecuting organized Crime 308
Participation Before and During the Commission Prosecuting White Collar Crime 309
of a Crime 245 Prosecuting Government Corruption 309
accomplice Actus Reus 246 Punishing RICo offenders 310
CASE: State v. Ulvinen (1981) 247 CASE: Alexander v. U.S. (1993) 310
accomplice Mens Rea 250 Solicitation 312
Participation after the Commission of a Crime 251 Solicitation Actus Reus 312
CASE: State v. Chism (1983) 252 Solicitation Mens Rea 314
Vicarious Liability 255 CASE: State v. Schleifer (1923) 314
Corporate liability 255 Solicitation Criminal objective 317
History 255
respondeat Superior (“Let the Master Answer”) 257
CASE: State v. Zeta Chi Fraternity (1997) 259
Chapter 9
Individual Vicarious liability 262 Crimes against persons i:
CASE: City of Waukesha v. Boehnen (2015) 262 Murder and Manslaughter 320
CASE: State v. Akers (1979) 265
Criminal Homicide in Context 322
Chapter 8 The Meaning of “Person” or “Human Being” 324
When Does life Begin? 324
inchoate Crimes 270 When Does life end? 328
Attempt 272 Murder 329
attempt law history 273 history of murder law 329
CASE: Dabney v. State (2004) 274 elements of murder 331
The Rationales for Criminal attempt law 277 Murder actus Reus 332
Murder mens Rea 332
The elements of Criminal attempt law 278
Attempt mens Rea 278 Kinds and Degrees of Murder 333
CASE: State v. King (2015) 279 First-Degree murder 334
Attempt actus Reus 281 Death Penalty and First-Degree Murder 334
ALL BUT THE LAST ACT TEST 283 First-Degree Murder mens Rea 335
“DANGERoUS PRoxIMITY To SUCCESS” TEST 283 Proving “Intent to Kill”: The Deadly Weapon Doctrine 337
“INDISPENSABLE ELEMENT” TEST 283
CASE: State v. Snowden (1957) 338
“UNEqUIVoCALITY” TEST 284
First-Degree Murder actus Reus 341
“PRoBABLE DESISTANCE” TEST 284
THE MoDEL PENAL CoDE (MPC) “SUBSTANTIAL STEPS” CASE: Duest v. State (1985) 341
TEST 285 Second-Degree murder 343
CASE: George Lee Mims, Sr. v. U.S. (1967) 286 CASE: People v. Thomas (1978) 344
Defenses to attempt liability 288 Depraved heart murder 346
Legal Impossibility 288 Felony murder 346
CASE: State v. Damms (1960) 290 Corporation murder 349
viii CONTENTS
CASE: People v. O’Neil (1990) 350 Rape mens Rea 403

Statutory Rape 404
Manslaughter 353
Criminal Sexual Contact 404
Voluntary manslaughter 355
CASE: State v. Triestman (2010) 405
Adequate Provocation 356
“Sudden Heat of Passion” with No “Cooling-Off” Bodily Injury and Threats of Bodily Injury Crimes 407
Period 357 Battery 407
Causation 358 assault 408
PRoVoCATIoN BY WoRDS 358 Domestic Violence Crimes 410
PRoVoCATIoN BY INTIMATES 359
CASE: Hamilton v. Cameron (1997) 411
PRoVoCATIoN BY NoNVIoLENT HoMoSExUAL
ADVANCE (NHA) 359 Stalking 415
CASE: Commonwealth v. Schnopps (1983) 360 Antistalking Statutes 415
“GAY PANIC” 363 Stalking actus Reus 416
The Emotion–Act Distinction 363 Stalking mens Rea 416
CASE: Commonwealth v. Carr (1990) 364 Stalking Bad Result 417
Cyberstalking 417
Involuntary manslaughter 365
Criminal Negligence Manslaughter 367 CASE: State v. Hoying (2005) 417
CASE: State v. Mays (2000) 368 Personal Restraint Crimes 421
Unlawful Act Manslaughter 370 Kidnapping 422
Doctor-Assisted Suicide 371 Kidnapping actus Reus 423
Kinds of euthanasia 372 CASE: People v. Allen (1997) 423
Kidnapping mens Rea 425
arguments against Doctor-assisted Suicide 373
Grading Kidnapping Seriousness 425
The Intrinsically Immoral and Wrong Argument 373
The “Slippery Slope” Argument 373 False Imprisonment 426
arguments in Favor of Doctor-assisted Suicide 373
Doctor-assisted Suicide and the Criminal law 376
Chapter 11
Public opinion and Doctor-assisted Suicide 376
Crimes against property 430
Chapter 10 History of Criminally Taking other People’s
Crimes against persons ii: Sex offenses, Property 433
Bodily injury, and personal restraint 380 larceny and Theft 434
CASE: People v. Lai Lee (2009) 435
Sex offenses 382 White-Collar Crime 438
The New Criminal Sexual Conduct Regime 384 Federal Mail Fraud 438
The Law 384 CASE: U.S. v. Maze (1974) 439
PRooF BEYoND A REASoNABLE DoUBT 385 Ponzi Schemes 442
PRooF BY WoRDS AND NoNVERBAL Civil Liability 445
CoMMUNICATIoN 386 Robbery 445
The Culture 386 Robbery actus Reus (Criminal Act) 446
Criminal Sexual Conduct Statutes 387 CASE: State v. Rolon (2012) 447
Definition and Grading 388 Robbery mens Rea (Intent) 451
Nonconsent, Force, and Resistance 389 The Degrees of Robbery 451
Corroboration 389 Receiving Stolen Property 452
Victim’s Sexual History 389 Receiving Stolen Property actus Reus 452
Marital Exception 389 Receiving Stolen Property mens Rea 452
The elements of modern Rape law 390 CASE: Sonnier v. State (1992) 453
Rape Actus Reus: The Force and Resistance Rule 391
Damaging and Destroying other People’s Property 455
CASE: Commonwealth v. Berkowitz (1992) 393
ExTRINSIC FoRCE 393
arson 455
DoES “No” ALWAYS MEAN “No”? 396 Arson actus Reus: Burning 456
THE KAHAN BERKoWITz ExPERIMENT 397 Arson mens Rea 457
INTRINSIC FoRCE 399 The Degrees of Arson 457
CASE: State in the Interest of S.M.I. (2012) 400 Criminal mischief 458
The Threat of Force 402 Criminal Mischief actus Reus 458
CONTENTS ix
Criminal Mischief mens Rea 458 history of Victimless Crimes 503

CASE: Commonwealth v. Mitchell (1994) 459 Prostitution 504
Invading other People’s Property: Burglary and The History of Prostitution Laws 504
The Double Standard Today 505
Criminal Trespass 461
Court Remedies for the Double Standard 506
Burglary 461
Local Government Programs Targeting “Johns” 506
Burglary actus Reus 462
CAR FoRFEITURE 506
Circumstance Elements 463 DRIVER’S LICENSE REVoCATIoN 507
CASE: Jewell v. State (1996) 463 PUBLISHING NAMES IN VARIoUS MEDIA 507
Burglary mens Rea 464
Minor offnses: Public order or Cash Cows? 508
The Degrees of Burglary 465
CASE: U.S. Department of Justice v. Civil Rights Division
Criminal Trespass 466
The Elements of Criminal Trespass 466
(2015) 510
The Degrees of Criminal Trespass 466
Identity Theft 467 Chapter 13
CASE: Flores-Figueroa v. U.S. (2009) 469 Crimes against the State 518
Cybercrimes 471
Intellectual Property Crimes 472 Treason 520
CASE: U.S. v. Ancheta (2006) 473 Treason laws and the american Revolution 520
The Dark Net 475 Treason law since the adoption of the U.S.
CASE: U.S. v. Ulbricht (2015) 476 Constitution 522
Sedition, Sabotage, and Espionage 523
Chapter 12 Sedition 523
Sabotage 524
Crimes against public order and espionage 527
Morals 484 The History of the Espionage Act 527
The Espionage Act Today 529
Disorderly Conduct 487 Antiterrorist Crimes 531
history of Disorderly Conduct 487 “material Support and Resources” to “Terrorists” and
“quality of Life” Crimes 489 Terrorist organizations 532
Vagrancy and loitering 490 holder v. humanitarian Law project (2010) 534
Vagrancy 490 Social Media and “Material Support and Resources” 535
Loitering 491 CASE: U.S. v. Asher Abid Khan 535
Panhandling 492
Gang activity 494
Criminal Law Responses to Gang Activity 494 Glossary 544
CASE: City of Chicago v. Morales (1999) 495 Bibliography 554
Civil Law Responses to Gang Activity 499
Review of Empirical Research on Gangs and Gang Case Index 564
Activity 499
Index 568
CASE: City of Saint Paul v. East Side Boys and Selby Siders
(2009) 500
Violent Video Games 501
“Victimless Crimes” 502
Preface
C riminal Law was my favorite class as a first-year law student at Northwestern Uni-
versity Law School in 1958. I’ve loved it ever since, a love that has only grown
from teaching it at least once a year at the University of Minnesota since 1971. I hope
my love of the subject comes through in Criminal Law, which I’ve just finished for the
twelfth time. It’s a great source of satisfaction that my modest innovation to the study
of criminal law—the text-casebook—has endured and flourished. Criminal Law, the
text-casebook, brings together the description, analysis, and critique of general prin-
ciples with excerpts of cases edited for nonlawyers.
Like its predecessors, Criminal Law, Twelfth Edition, stresses both the general prin-
ciples that apply to all of criminal law and the specific elements of particular crimes
that prosecutors have to prove beyond a reasonable doubt. Learning the principles of
criminal law isn’t just a good mental exercise, although it does stimulate students to
use their minds. Understanding the general principles is an indispensable prerequisite
for understanding the elements of specific crimes. The general principles have lasted for
centuries. The definitions of the elements of specific crimes, on the other hand, differ
from state to state and over time because they have to meet the varied and changing
needs of new times and different places.
That the principles have stood the test of time testifies to their strength as a frame-
work for explaining the elements of crimes defined in the fifty states and in the U.S.
criminal code. But there’s more to their importance than durability; it’s also practical to
know and understand them. The general principles are the bases both of the elements
that prosecutors have to prove beyond a reasonable doubt to convict defendants and of
the defenses that justify or excuse defendants’ criminal conduct.
So Criminal Law, Twelfth Edition, rests on a solid foundation. But it can’t stand
still, any more than the subject of criminal law can remain frozen in time. The more
I teach and write about criminal law, the more I learn and rethink what I’ve already
learned; the more “good” cases I find that I didn’t know were there; and the more I’m
able to include cases that weren’t decided and reported when the previous edition went
to press.
Of course, it’s my obligation to incorporate into the twelfth edition these now-
decided and reported cases, and this new learning, rethinking, and discovery. But ob-
ligation doesn’t describe the pleasure that preparing now twelve editions of Criminal
Law brings me. It’s thrilling to find cases that illustrate a principle in terms students can
understand and that stimulate them to think critically about subjects worth thinking
about. It’s that thrill that drives me to make each edition better than the last. I hope
it will make my students—and you—more intelligent consumers of the law and social
reality of criminal law in the U.S. constitutional democracy.
organization/approach
The chapters in the text organize the criminal law into a traditional scheme that is
widely accepted and can embrace, with minor adjustments, the criminal law of any
state and/or the federal government. The logic of the arrangement is first to cover the
general part of the criminal law—namely, principles and doctrines common to all or
most crimes—and then the special part of criminal law—namely, the application of the
x general principles to the elements of specific crimes.
PREFACE xi
Chapters 1 through 8 cover the general part of criminal law: the sources and pur-
poses of criminal law and criminal punishment; the constitutional limits on the criminal
law; the general principles of criminal liability; the defenses of justification and excuse;
parties to crime; and incomplete crimes.
Chapters 9 through 13 cover the special part of the criminal law: the major crimes
against persons; crimes against homes and property; crimes against public order and
morals; and crimes against the state.
Criminal Law has always followed the three-step analysis of criminal liability
(criminal conduct, justification, and excuse). Criminal Law brings this analysis into
sharp focus in two ways. First, the chapter sequence: Chapters 3 and 4 cover the general
principles of criminal conduct (criminal act, criminal intent, concurrence, and causa-
tion). Chapter 5 covers the defenses of justification, the second step in the analysis of
criminal liability. Chapter 6 covers the defenses of excuse, the third step. So the chapter
sequence mirrors precisely the three-step analysis of criminal liability.
Criminal Law also sharpens the focus on the three-step analysis by means of the
two kinds of Elements of Crime art. First are criminal conduct crime boxes, consisting
of a voluntary criminal act triggered by criminal intent. Second are bad result crimes,
consisting of a voluntary criminal act, criminal intent, and causing a criminal harm.
The design of these boxes is consistent throughout the book. The elements boxes
go right to the core of the three-step analysis of criminal liability, making it easier for
students to master the essence of criminal law: applying general principles to specific
individual crimes.
ELEMENTS OF MATERIAL SUPPORT TO TERRORISTS
Actus Reus Mens Rea Circumstance Criminal Conduct

(Voluntary Act) 1. Purposely or Provide aid to Material support to
1. Provide material 2. Knowingly individual terrorist terrorists
support or
resource or
2. Conceal or
disguise the
nature, location,
source, or
ownership
Changes to the twelfth edition

Criminal Law, Twelfth Edition, includes new case excerpts; an increased selection of
relevant legal and social science research; a rich collection of examples to illustrate main
points; new chapter-opening vignettes to enhance student relevancy; and numerous
new “You Decide” to give students an opportunity to prepare for on-the-job challenges.
For the first time, we have included the “Criminal Law in Focus” feature to high-
light current topics of interest in criminal law, such as relevant excerpts from the U.S.
Criminal Code, a comparison of the insanity defense myths and reality, and the Oregon
Death with Dignity Act. We have also included a running glossary to define terms as
each chapter progresses—a tool we think students will find invaluable.
Additionally, the Twelfth Edition includes entirely new sections, including some
on such high-profile topics as the ban on carrying concealed guns in churches, man-
datory life without parole for juveniles, the duty to intervene in criminal omissions,
physician-assisted suicide, “homegrown” (U.S. born and/or longtime resident non–U.S.
born) terrorists, and more.
xii PREFACE
Throughout the book are also new charts and tables, and all retained graphics are
updated to reflect the most recent information available. Here are the highlights of the
changes in each chapter.
Chapter 1, Criminal Law and Punishment in U.S. Society: An Overview

NEW
• Vignette “Did he ‘intend’ to cause bodily harm?”
• Introduction “Overcriminalization and mass incarceration” Two hot button issues
that affect two aspects of CL12, namely criminal law and punishment
• Figure “Arrests 2013”
• Text Link the general discussion of the breadth and depth of criminal law and
punishment to specific chapters in the book.
• Subsections
— “Informal Discretionary Law Making” In practice, police, prosecutors, and
judges are a source of law making in the vast number of minor crimes, such as
drug offenses and disorderly conduct covered in Chapters 2 and 12.
— “The Era of Mass Imprisonment, 1970s–Present” Develops the point that U.S.
has 5% of world population and 25% of prisoners.
— “Empirical Evaluation of Criminal Law Theories” Contains the latest empiri-
cal research on retributionists and deterrence theories.
• You Decide “Was the ‘law making’ of the police and prosecutor ethical?”
• Case Excerpt Carole Anne Bond v. United States (2014) “Was the arsenic a
‘chemical weapon?’”
REVISED
• Table “Selected Crimes and Arrest Statistics, 2013”
Chapter 2, Constitutional Limits on Criminal Law

NEW
• Vignette “Violation of Doctors’ Right to Free Speech?”
• You Decide “Did the longer sentence violate the ban on ex post facto laws?”
• Subsections
— “The Rule of Lenity”
— “Proving Guilt in Criminal Cases”
• Case
— Commonwealth v. William P. Johnson and Commonwealth v. Gail M. Johnson
(2014) “Is cyberharassment free speech?”
— Woollard v. Gallagher (2013) “Does the ‘good and substantial reason’ require-
ment violate the Second Amendment?”
REVISED
• Subsection
— “Right to ‘Bear Arms’”
— “Prison Sentences”
Chapter 3, The Criminal Act: The First Principle of Criminal Liability

NEW
• Vignette “Did They Have a ‘Legal’ Duty to Act?”
• Section “Sleep Driving”
PREFACE xiii
• Case Excerpts
— State v. Newman (2013) “Did ‘sleep driving’ nullify the voluntary act require-
ment?”
— People v. Levy (2011) “Did his conduct ‘include a voluntary act’?”
— Williams v. State (2013) “Did she possess cannabis with the intent to sell, man-
ufacture, or deliver it?”
• You Decide
— “Is ‘sleep sex’ a voluntary act?”
— “Did he kill during ‘insulin shock’?”
Chapter 4, The General Principles of Criminal Liability: Mens Rea,

Concurrence, Ignorance, and Mistake
NEW
• Section “Failure of Proof ‘Defenses’: Ignorance and Mistake”
• Subsections
— “Ignorance of Law”
— “Mistake of Fact”
— “A General Ignorance of Mistake ‘Defense’”
— “Morality and Ignorance of the Law: Empirical Findings”
• Case Excerpts
— State v. Fleck (2012) “Did he intend to inflict bodily harm?”
— State v. Bauer (2014) “Did he cause the gunshot wounds?”
— State v. Jacobson (2005) “Did he qualify for a failure of proof defense?”
• Criminal Law in Focus
— “Definitions of the Three Kinds of Criminal Liability”
— “MPC Levels of Culpability”
— “Ignorance or Mistake: Model Penal Code, Section 2.04”
• You Decide
— “Which court’s decision established the most ethical public policy regarding
the control of HIV?”
— “Who’s entitled to the mistake of law defense?”
REVISED
• “Mens Rea” Major rewrite includes:
— Major Subsection Rewrites
■ “Criminal Intent”
■ “General and Specific Intent”
Chapter 5, Defenses to Criminal Liability I: Justifications

NEW
• Vignette Battered woman defense
• Subsections
— “Cohabitant Rule” Exception to Retreat Rule
— “Battered Women Who Kill Their Abusers” Major expansion of the battered
woman syndrome and the defense that grew out of it. Also statistics on domestic
partner violence
• Case Excerpt State v. Batie (2015) “Did she start the fight with her husband?”
xiv PREFACE

— “Reasonableness and the Battered Woman: Donna Lee Bechtel v. Oklahoma”
— “Alabama Criminal Code Consent Law”
• You Decide
— “Do the new castle laws protect the right to defend or provide a license to
kill?”
— “Was burglary the lesser evil?”
— “Can she consent to being assaulted?”
— “Can he consent to being shot?”
REVISED
• Sections
— “Proving Defenses” Rewritten to clarify differences between perfect and imper-
fect defenses and how to prove them.
— “Choice of Evils” Rewritten to clarify and improve the elements and history of
the “general defense of necessity.”
• Case Excerpt State v. Stewart (1988) Major addition to dissent to expand on bat-
tered woman defense evidence.
Chapter 6, Defenses to Criminal Liability II: Excuses

NEW
• Vignette Myers III v. State
• Case Excerpts
— Myers III v. State (2015) “Was he guilty but mentally ill?”
— State v. Belew (2014) “Were his ‘hidden wounds’ an excuse for shooting police
officers?”
— “The Insanity Defense: Popular Myths and Empirical Reality”
— “Competence and Sanity: Critical Differences”
— “Juveniles Tried as Adults”
— “Duress Statutes in Three States”
• Figure “Percent of Afghanistan/Iraq War Vets Suffering from PTSD, Depression,
and Traumatic Brain Injuries (TBI)”
• You Decide
— “Is it ethical policy to try an eight-year-old for murder?”
REVISED
• Sections
— “The Insanity Defense” Revision to update and focus on the myth (fakers get
away with murder) and reality (defendants hardly ever plead insanity, and of
those practically none succeed).
— “The Defense of Entrapment” Update history to include modern totalitarian
government, including Moammar Ghadafi and Kim Jong-un.
— “Syndrome Defenses” Substantial new material, including empirical findings
on PTS effects on defense as it applies to the “hidden wounds” of returning
Afghanistan and Iraq War veterans.
PREFACE xv
Chapter 7, Parties to Crime and Vicarious Liability

NEW
• Vignette “Was She an Accomplice?”
• Criminal Law in Focus “Common Law Parties to Crime”
• Case Excerpts City of Waukesha v. Boehnen (2015) “Was the owner criminally
liable for selling liquor to minors?”
• You Decide “Is it wise public policy to make parents guilty for their children’s
crimes?”
Chapter 8, Inchoate Crimes

NEW
• Vignette State v. Damms
— “The Line between ‘Preparation’ and ‘Attempt’”
— “1. Did They Get ‘Very Near’ to Robbing the Clerk?” and “2.
Was It ‘Preparation’ or ‘All But the Last Act’?”
— “Why Prosecute Organized Crime under RICO?”
• Case Excerpts
— Dabney v. State (2004) “Did he attempt to commit burglary?”
— State v. King (2015) “Did he intend to kill?”
— Griffin v. Gipson (2015) “Did he conspire to commit murder?”
• You Decide “Should both women be treated equally?”
Chapter 9, Crimes Against Persons I: Murder and Manslaughter

NEW
• Section “Kinds and Degrees of Murder”
• Vignette State v. Snowden
— “Stages of Fetal Development in Feticide Statutes”
— “Proving ‘Premeditation’ and ‘Deliberation’”
— “Inherently Dangerous to Life in the Abstract Felonies”
— “Four ‘Adequate’ Provocations”
— “Provocation Jury Instruction”
— “Model Penal Code Homicide Sections”
— “Oregon Death with Dignity Act”
• Figure “Violent Crimes, 2013”
• You Decide
— “Is partial birth abortion murder?”
— “Was beating him to death with a baseball bat atrocious first-degree murder?”
— “Murder or manslaughter?”
— “Should doctor-assisted suicide be considered murder?”
Chapter 10, Crimes Against Persons II: Sex Offenses, Bodily Injury,
and Personal Restraint
NEW
• Vignette “Did he commit a felony sex offense?”
xvi PREFACE
• Section
— “Does ‘No’ Always Mean ‘No’?”
— “The Kahan Berkowitz Experiment”
• Case Excerpt
— State in the Interest of S.M.I. (2012) “Did he force her to have sexual inter-
course?”
— State v. Triestman (2010) “Did he commit criminal sexual contact?”
• You Decide
— “Is criminal law the best response to promote ethical domestic violence public
policy?”
— “Should cyberbullying be a crime?”
• Table
— “Perceived Offender Characteristics in Rape and Sexual Assault Victimizations
Against Females Ages 18–24 (by post-secondary enrollment status of victim),
1995–2013”
— “Rape or Sexual Assault Victimizations Against Females Ages 18 to 24
(reported and not reported to police and reasons for not reporting, by post-
secondary enrollment status), 1995–2013”
• Revised
• Major Section Rewrite “Criminal Sexual Conduct Statutes” Added new material
on grass roots movement that swept the country and produced a revolution in rape
law, especially date rape
Chapter 11, Crimes Against Property

NEW
• Vignette “Was it theft?”
• Subsection “The Dark Net” Focuses on “…a part of the Internet most people
have never gone to because it’s an encrypted, hidden underworld that’s home to
pornography, black markets, trolls, criminals and extremists.”
• Case Excerpt
— People v. Lai Lee (2009) “Was it purse snatching or shoplifting?”
— State v. Rolon (2012) “Did he rob or steal from the victim?”
— Flores-Figueroa v. U.S. (2009) “Did he ‘knowingly’ use someone else’s
identification cards?”
— U.S. v. Ulbricht (2015) “Is he a libertarian hero or calculating drug lord?”
— “Madoff Forfeiture Order”
— “‘Purse Snatching’ vs. ‘Robbery’”
— “MPC Criminal Mischief Provision”
— “Grading Burglary”
— “Aggravated Identity Theft”
— “The Silk Road in Operation”
• Figure “Total Losses, 2012”
• Table “National Estimates of Intentionally Set Fires and Losses in Residential
Buildings”
PREFACE xvii
REVISED
• Major Section Revision “Cybercrimes”
Chapter 12, Crimes Against Public Order and Morals

NEW
• Section “Minor Offenses: Public Order or Cash Cows?” An investigation of
whether police practices promote public order or only generate income for city
governments. The section homes in on the Ferguson MO PD and the US DOJ’s
reports: one clearing Officer Darren Wilson of shooting Michael Brown and the
other condemning the FPD’s use of minor city offenses (jaywalking) to pay for the
city government’s operation.
• Case Excerpt U.S. Department of Justice v. Civil Rights Division (2015) “Investi-
gation of the Ferguson Police Department”
— “Model Penal Code Elements of Special Disorderly Conduct Sections”
— “Many Conservatives Are Blowing It on the DOJ Ferguson Report”
REVISED
• Major Section Revisions
— “Violent Video Games” Especially empirical research on the scientific link be-
tween violent video games and criminal behavior.
— “Prostitution” Reduce coverage of the history of prostitution, and of the “dou-
ble standard” for johns and sex workers.
• Figure “Total Prostitution Arrests, 2013”
Chapter 13, Crimes Against the State

NEW
• Vignette Social media and cybercrime
• Case Excerpt U.S. v. Asher Abid Khan (2015)
— “Selected Provisions and Definitions of Terrorism in the United States Code”
— “U.S. Criminal Code ‘Material Support and Resources’ Provisions”
• You Decide
— “Did they commit sabotage?”
— “Which should be banned as ‘material support and resources’ to terrorists?”
REVISED
• Major Section Revision “‘Material Support and Resources’ to ‘Terrorists’ and
Terrorist Organizations”
• Section
— “The History of the Espionage Act” Streamlined, including other rarely pros-
ecuted crimes against the state.
— “The Espionage Act Today” Updated to include espionage cases and punish-
ments up to 2015.
xviii PREFACE
SUPPlemeNTS
resources for instructors
• MindTap Criminal Justice MindTap from Cengage Learning represents a new
approach to a highly personalized, online learning platform. A fully online learn-
ing solution, MindTap combines all of a student’s learning tools—readings, mul-
timedia, activities, and assessments—into a singular Learning Path that guides
the student through the curriculum. Instructors personalize the experience by
customizing the presentation of these learning tools for their students, allowing
instructors to seamlessly introduce their own content into the Learning Path via
“apps” that integrate into the MindTap platform. Additionally, MindTap pro-
vides interoperability with major Learning Management Systems (LMS) via sup-
port for open industry standards and fosters partnerships with third-party edu-
cational application providers to provide a highly collaborative, engaging, and
personalized learning experience.
• Online Instructor’s Resource Manual The instructor’s manual, which has been
updated and revised by Valerie Bell of Loras College to the Twelfth Edition, in-
cludes learning objectives, key terms, a detailed chapter outline, a chapter sum-
mary, discussion topics, student activities, and media tools. The learning objectives
are correlated with the discussion topics, student activities, and media tools.
• Online Test Bank Each chapter’s test bank contains questions in multiple-choice,
true/false, completion, and essay formats, with a full answer key. The test bank is
coded to the learning objectives that appear in the main text and includes the page
numbers in the main text where the answers can be found. Finally, each question in
the test bank has been carefully reviewed by experienced criminal justice instruc-
tors for quality, accuracy, and content coverage so instructors can be sure they are
working with an assessment and grading resource of the highest caliber.
• Cengage Learning Testing Powered by Cognero This assessment software is a
flexible, online system that allows you to import, edit, and manipulate test bank
content from the Criminal Law test bank or elsewhere, including your own favor-
ite test questions; create multiple test versions in an instant; and deliver tests from
your LMS, your classroom, or wherever you want.
• PowerPoint® Lectures Helping you make your lectures more engaging while effec-
tively reaching your visually oriented students, these handy Microsoft PowerPoint®
slides outline the chapters of the main text in a classroom-ready presentation. The
PowerPoint® slides are updated to reflect the content and organization of the new
edition of the text and feature some additional examples and real-world cases for
application and discussion. The PowerPoint® slides were updated for the current
edition by Valerie Bell of Loras College.
resources for Students

• MindTap Criminal Justice MindTap from Cengage Learning represents a
new approach to a highly personalized, online learning platform. A fully online
learning solution, MindTap combines all of a student’s learning tools—readings,
multimedia, activities, and assessments—into a singular Learning Path that
guides the student through the curriculum. Instructors personalize the experi-
ence by customizing the presentation of these learning tools for their students,
allowing instructors to seamlessly introduce their own content into the Learning
Path via “apps” that integrate into the MindTap platform. Additionally, MindTap
PREFACE xix
provides interoperability with major Learning Management Systems (LMS) via

support for open industry standards and fosters partnerships with third-party
educational application providers to provide a highly collaborative, engaging,
and personalized learning experience.
aCKNoWleDGemeNTS
Criminal Law, Twelfth Edition (like the other eleven), didn’t get to you by my efforts
alone; I had a lot of help. I’m grateful for all those who have provided feedback over
the years. Many thanks also to Senior Product Manager Carolyn Henderson Meier and
Associate Content Developer Julia White; they and others at Cengage Learning have
helped me at every stage of the book.
Additionally, I would like to thank the following reviewers of the Eleventh Edition
for providing invaluable feedback and direction for this revision:
• Seth A. Dupuis, Springfield Technical • Andrew Kozal, Northwest State
Community College Community College
• Keith E. Johnson, Mansfield • Emily Renzelli, West Virginia
University of Pennsylvania University
• Daniel Hebert, Springfield Technical
Community College
Derek Volke. For five years Derek has enriched my life. First as my student. Sec-
ond as my TA in all three courses that I’ve taught at the University of Minnesota—
Introduction to Criminal Justice, Criminal Law, and Criminal Procedure. Third, he’s
been indispensable assistant in preparing Criminal Law, Twelfth Edition. The Learning
Objectives, Marginal Key Terms, and the Chapter Summaries are utterly and invaluably
his. I can’t count the number of times throughout the manuscript where he added com-
ments like “I think students might understand this better if you worded it this way….”
“I think this should be a key term; otherwise students might miss its significance.” “I’m
glad you changed this; I think it’ll be easier for students to understand now.” I accepted
all of Derek’s suggestions. The result—Criminal Law, Twelfth Edition, for the first time
was written with the active participation of a student who used it as a student, and
dealt with students’ problems understanding it, when he was a TA. This isn’t to say we
“dumbed down” and “spoon-fed” students. We just made a serious effort to write dif-
ficult matter in clear, straightforward prose.
What would I do without Doug and Steve? Doug takes me there and gets me here
and everywhere, day in and day out, days that now have stretched to 17 years. And
my old and dearest friend Steve, who from the days when he watched over our Irish
Wolfhounds in the 1970s, to now decades later when he keeps “Frankie” the Standard
Poodle, “Kitty” the OSH, me, and a lot more around here in order. And both Steve and
Doug do it all while putting up with what my beloved mentor at Cambridge, the late
Sir Geoffrey Elton, called my “mercurial temperament.” Only those who really know
me can understand how I can try the patience of Job! Friends and associates like these
have given Criminal Law, Twelfth Edition, whatever success it enjoys. As for its faults,
I own them all.
Joel Samaha
Minneapolis
Learning Objectives
1 To know the dual nature
of the social reality of U.S.
criminal law and understand
5 To define and understand
what behavior deserves
criminal punishment and to
how it reflects both our understand the social conse-
criminal law and punishment quences of the era of mass
imaginations. imprisonment.
2 To understand the differ-

ences between criminal
and noncriminal sanctions,
6 To know and understand
that the main theories of
criminal punishment center
and to know the purposes on either retribution or pre-
of each. vention and to appreciate
the large, complex body of
3 To understand the various
ways to classify crimes
and appreciate the legal and
empirical research support-
ing each.
social ramifications of these
labels. 7 To understand the text-
case method and how to
apply it to the study of crimi-
4 To identify, describe, and
understand the main
sources of criminal law.
nal law.
Criminal Law and
1 Punishment in U.S. Society
An Overview
Chapter Outline
CRIMINAL LAW IN U.S. SOCIETY CRIMINAL PUNISHMENT
The Core Felonies IN U.S. SOCIETY
“All the rest” of U.S. Criminal Law: The Era of Mass Imprisonment,
The “Police Power” 1970s–Present
History of the Police Power Defining “Criminal Punishment”
Police Power and Public Morals Theories of Criminal Punishment
CRIMES AND NONCRIMINAL Retribution
Prevention
LEGAL WRONGS
Deterrence
CLASSIFYING CRIMES Incapacitation
Rehabilitation
SOURCES OF CRIMINAL LAW
Empirical Evaluation of Criminal Law
State Criminal Codes
Theories
The Model Penal Code (MPC)
Municipal Ordinances THE TEXT-CASE METHOD
The U.S. Criminal Code The Parts of the Case Excerpts
Administrative Agency Crimes Briefing the Case Excerpts
Informal Discretionary Law Making Finding Cases
CRIMINAL LAW IN THE U.S.
FEDERAL SYSTEM
Did he “intend” to cause bodily harm?

A man knew he was HIV positive. Despite doctors’ instructions about safe sex and
the need to tell his partners before having sex with them, he had sex numerous
times with three different women without telling them. Most of the time, he used
no protection, but, on a few occasions, he withdrew before ejaculating. He gave
one of the women an anti-AIDS drug “to slow down the AIDS.” None of the women
contracted HIV.
LO1
“E very known organized society has, and probably must have, some system by
which it punishes those who violate its most important prohibitions” (Robinson
2008, 1). This book explores, and invites you to think critically about, the answers to the
two questions implied in Professor Robinson’s quote:
1. What behavior deserves criminal punishment?
2. What’s the appropriate punishment for criminal behavior?
4 CHAPTER 1 • CRIMINAL LAw AND PUNISHMENT IN U.S. SoCIETY
To introduce you to some possible answers, read the brief summaries presented from
real cases that we examine deeper in the remaining chapters. After you read each summary,
assign the case to one of the five following categories:
1. Crime
2. Noncriminal wrong (tort)
3. Regulation
4. License
5. Lawful
These categories move across a spectrum of interference with the liberty, privacy, and
property interests of individuals. These are precious rights in a free and democratic society.
But, so is our need to feel safe and secure, and the need to protect us from others (and
maybe even ourselves) who take or threaten to take them away from us. So, ask yourself,
“How much does the behavior in the story threaten your need to feel safe and secure?” And,
“Is it worth the loss your liberty, privacy, and property that all but option 5 will cost you?”
Don’t worry about whether you know enough about criminal law to decide which category
the story belongs in. In fact, try to ignore what you already know; just choose the category
you feel best fits the case:
1. Crime. If you put the case into this category, then grade it as very serious, serious,
or minor. The idea here is to stamp it with both the amount of disgrace (stigma) you
believe a convicted “criminal” should suffer and roughly the kind and amount of punish-
ment you believe the person deserves.
2. Noncriminal Wrong. This is a legal wrong that justifies suing someone and getting money,
usually for some personal injury. In other words, name a price that the wrongdoer has to
pay to another individual, but don’t stamp it “criminal” (Coffee 1992, 1876–77).
3. Regulation. Use government action—for example, a heavy cigarette tax to discourage
smoking—to discourage the behavior (Harcourt 2005, 11–12). In other words, make the
price high, but don’t stamp it with the stigma of “crime.”
4. License. Charge a price for it—for example, a driver’s license fee for the privilege to
drive—but don’t try to encourage or discourage it. Make the price affordable, and
attach no stigma to it.
5. Lawful. Let individual conscience and/or social disapproval condemn it, but create no
legal consequences. (You should also choose this option if you believe society should
encourage the behavior. A few students occasionally do.)
The Cases
Here are brief highlights from some of the cases you’ll encounter in the remaining
chapters.
1. A young man beat a stranger on the street with a baseball bat for “kicks.” The victim
died. (Commonwealth v. Golston 1977, “Atrocious Murder” in Chapter 9, p. 343)
2. A wife cheated on her husband for months. He begged his wife not to leave him. She
replied, “No, I’m going to court, and you’re going to have to give me all the furni-
ture. You’re going to have to get the hell out of here; you won’t have nothing.” Then,
pointing to her crotch, she added, “You’ll never touch this again, because I’ve got
something bigger and better for it.” Breaking into tears, he begged some more, “Why
don’t you try to save the marriage? I have nothing more to live for.” “Never,” she
replied. “I’m never coming back to you.” He “cracked,” ran into the next room, got a
CRIMINAL LAW IN U.S. SOCIETY 5
gun, and shot her to death. (Commonwealth v. Schnopps 1983, Chapter 9, “Voluntary
Manslaughter,” p. 360)
3. Two robbers met a drunk man in a bar, displaying a wad of money. When the man asked
them for a ride, they agreed, drove him out into the country, robbed him, forced him out
of the car without his glasses, and drove off. A college student, driving at a reasonable
speed, didn’t see the man standing in the middle of the road waving him down, couldn’t
stop, and struck and killed him. (People v. Kibbe 1974, Chapter 4, “Proximate Cause,” p. 147)
4. A police officer followed James Newman’s car and observed him making a left-hand
turn without signaling or stopping, running a red light, and driving down the middle
of a street, straddling the two traffic lanes. The officer activated his overhead lights
to initiate a traffic stop and, in response, Newman pulled into a parking lot. Dr. Joshua
Ramseyer, a certified neurologist and sleep medicine specialist, was prepared to tes-
tify that Newman was “sleep driving.” He emphasized that activities performed while
“sleep driving” are unconscious acts. He further noted that sleepwalking resulting in
“sleep driving,” while uncommon in the general population, is a well-established phe-
nomenon. (State v. Newman 2013, 302 P.3d 435, Chapter 3, p. 102)
5. A neighbor told an eight-year-old boy and his friend to come out from behind a building
and not to play there because it was dangerous. The boy answered belligerently, “In a
minute.” Losing patience, the neighbor said, “No, not in a minute; get out of there now!”
A few days later, he broke into her house, pulled a goldfish out of its bowl, chopped it
into little pieces with a steak knife, and smeared it all over the counter. Then he went
into the bathroom, plugged in a curling iron, and clamped it onto a towel. (State v. K.R.L.
1992, Chapter 6, “The Excuse of Age,” p. 224)
6. A young man lived in a ground-level apartment with a large window opening onto the
building parking lot. At eight o’clock one morning, he stood naked in front of the win-
dow eating his cereal in full view of those getting in and out of their cars. (State v.
Metzger 1982, Chapter 2, “Defining Vagueness,” p. 45)
7. A man knew he was HIV positive. Despite doctors’ instructions about safe sex and the
need to tell his partners before having sex with them, he had sex numerous times with
three different women without telling them. Most of the time, he used no protection,
but, on a few occasions, he withdrew before ejaculating. He gave one of the women an
anti-AIDS drug, “to slow down the AIDS.” None of the women contracted the HIV virus.
(State v. Stark 1992, Chapter 4, “MPC Mental Attitudes: Purpose,” p. 135)
8. A woman met a very drunk man in a bar. He got into her car, and she drove him to her
house. He asked her for a spoon, which she knew he wanted to use to take drugs. She
got it for him and waited in the living room while he went into the bathroom to “shoot
up.” He came back into the living room and collapsed; she went back to the bar. The
next morning she found him “purple, with flies flying around him.” Thinking he was
dead, she told her daughter to call the police and left for work. He was dead. (People v.
Oliver 1989, Chapter 3, “Omissions as Acts,” p. 116) ■
CRIMINAL LAW IN U.S. SOCIETY

“Nothing is certain,” Ben Franklin said, “but death and taxes.” Had he lived during
our time, Franklin might have added a few other certainties—and almost assuredly
among them would have been the concept of “crime.” By this, I am not referring to the
rate of violence and unlawful deprivations of property or privacy in the United States,
which ebbs and flows from year to year and decade to decade, often coinciding with
dips in the economy or spikes in the number of young males in the general population.
Instead, it is the troubling phenomenon of continually adding new crimes or more
severe punishments to the penal code, criminalizing, recriminalizing, and overcrimi-

nalizing all forms of conduct, much of it innocuous, to the point of erasing the line
between tolerable and unacceptable behavior.
—Erik Luna (2004, 1)
social reality of U.S. Professor Luna is referring to the social reality of U.S. criminal law, namely that there are
criminal law the dual two criminal laws. This dual nature of criminal law is the organizing theme and organiza-
nature of U.S. criminal
tion of your book. There’s a small group of core offenses and a huge number of crimes we
law divided into two cat-
egories: a small number call “all the rest” (Professor Stuntz [2001] calls them “everything else” (512).)
of serious, core offenses Notice the number of arrests Table 1.1 keyed to the chapters in which they appear.
and a large number of Also, look at the revealing distribution of violent, property, and drug offense arrests
lesser crimes, or “every-
thing else”
depicted in Figure 1.1. They’re the latest numbers available when your book went to press.
Table 1.1 and Figure 1.1 tell you a lot about criminal law in U.S. society. They
criminal law imagina- reflect what we call the criminal law imagination in United States society. What do
tion the contributions of I mean by “criminal law imagination?” Conduct that reflects our “moral desires—
law, history, philosophy,
visions of a moral order, yearnings for the comportment of others and ourselves,” and
the social sciences, and
sometimes biology to which “we seek to impose . . . on the world” (Harcourt 2005, 10 emphasis added). (I
explain the moral desires borrowed and tailored the term sociological imagination coined by the American soci-
we wish to impose on the ologist C. Wright Mills in 1959 to describe the type of insight offered by the discipline
world of sociology, namely to explain the nature of sociology and its relevance in daily life.)
Table 1.1 Selected Crimes and arrest Statistics, 2013

Selected crimeS ArreStS
Murder and nonnegligent manslaughter (Chapters 3, 4, 7, 8, 9) 10,231
Arson (Chapter 11) 10,509
Rape (Chapter 10) 16,863
Sex offenses (except rape and prostitution; e.g., offenses against chastity/morals)
(Chapter 12) 57,925
Forgery and counterfeiting (Chapter 11) 60,969
Motor vehicle theft 64,566
Stolen property (buying, receiving, possessing) 92,691
Robbery (Chapter 11) 94,406
Weapons (illegal carrying, possessing, etc.) (Chapters 2, 3, 5, 6) 137,779
Fraud (Chapter 11) 143,528
Vandalism (Chapter 11) 201,168
Burglary (Chapter 11) 252,629
Liquor laws 354,872
Aggravated assault (attacks with intent to murder or inflict serious injury, usually with a
weapon) (Chapters 6, 8) 358,860
Drunkenness 443,527
Disorderly conduct (disturb public peace, scandalize community, shock public sense of
morality) (Chapter 12) 467,993
Driving under the influence (Chapters 2, 3) 1,166,824
Larceny-theft (Chapter 11) 1,231,580
Drug abuse violations (use, possess, sell, grow, manufacture, make narcotic drugs)
(Chapters 2, 3, 12) 1,501,043
All other arrests 6,009,807
total Arrests (selected + all other arrests) 11,302,102
Source: FBI Uniform Crime Report 2013 (Sept.), Table 29.
CRIMINAL LAW IN U.S. SOCIETY 7
ArresTs 2013 ◂ Figure 1.1

480,360
Violent
1,559,284
Property
1,501,043
Drugs
Source: FBI Uniform Crime Report 2013 (Sept.), Table 29.
The Core Felonies LO1

The core offenses comprise the most serious crimes in two general categories:
• Felonies against persons, which are murder, manslaughter, rape, kidnapping, and felonies against per-
robbery sons the core offenses
of murder, manslaughter,
• Felonies against property, which include all forms of felony theft, robbery, arson, rape, kidnapping, and
and burglary (Chapter 11). robbery
You’ve almost certainly heard of these ancient crimes. These are the “Index” felonies against prop-
crimes that the FBI tracks in its annual Uniform Crime Reports (UCR). Most people erty the core offenses of
believe they’re morally wrong and that those who commit them deserve criminal pun- felonious theft, robbery,
arson, and burglary
ishment. You probably agree. Analyzing the elements of these crimes and their punish-
ment fill up most law school criminal law casebooks, law school criminal law courses,
criminal law scholarship—and the book you’re reading (Stuntz 2001, 512). All states
and the federal government have criminal codes that both define in detail the elements
the prosecution has to prove beyond a reasonable doubt to convict defendants, and
prescribe hard punishment (a year or more in prison) for committing them. (We get to hard punishment a sen-
the punishment later.) tence of a year or more
in prison
Notice several other points about the social reality of the handful of core felonies
in U.S. criminal law:
1. There are far fewer core offenses and far fewer people committing them (see Table
1.1 and Figure 1.1) than in the rest of the criminal law.
2. Core offenses are ancient.
3. Most have remained remarkably stable in definition. Their elements are pretty
much what they were when the judges created them and Blackstone (1769) wrote
about them. (But see sex offenses and domestic violence in Chapter 10.)
4. The short list of them has not grown much since Blackstone’s day either. (Motor
Vehicle Theft is the only core offense in the FBI Index that was not one of the
ancient felonies.)
The core offenses clearly fit within what Professor Bernard Harcourt (2005) calls
our “carceral imagination.” The word carceral refers to jail and prison. We call it the
punishment imagina- punishment imagination, crimes that fit within the criminal law imagination and that
tion crimes that fit within the law should punish by locking up people. Now, let’s turn to “all the rest” of the
the criminal law imagina-
tion and that the law
offenses that make up our criminal law.
should punish by locking
people up
LO1 “All the rest” of U.S. Criminal Law: The “Police Power”
Most “everything else” offenses derive from what’s known as the government’s police
police power all fed- power. Police power includes what you immediately imagined—uniformed police offi-
eral, state, and local cers enforcing the criminal law. However, it extends much further to encompass all
governments’ executive,
federal, state, and local governments’ executive, legislative, and judiciary’s acts to carry
legislative, and judiciary’s
power, including uni- out the “broad public policies regarding public safety, public economy, public property,
formed police officers, to public morals, and public health” (Novak 1996, 49). It also arguably comprises all of
carry out and enforce the the responsibilities of government listed in the Preamble to the U.S. Constitution:
criminal law
• Form a more perfect union
• Establish justice
• Insure domestic tranquility
• Provide for the common defense
• Promote the general welfare
• Secure the blessings of liberty to ourselves and our posterity
LO1 HiStOry OF tHe POLice POwer

Sir William Blackstone (1769), in his Commentaries on the Laws of England (most
educated eighteenth-century Americans read it), claimed that the king, as the “father of
his people” (Blackstone, 169), held the police power. Under the head “public police and
economy,” here’s how Blackstone defined the police power:
By the public police . . . I mean the due regulation and domestic order of the king-
dom: whereby the individuals of the state like the members of a well-governed
family, are bound to conform their general behavior to the rules of propriety, good
neighborhood, and good manners: and to be decent, industrious in their respective
stations. (162)
During the spring of 1777, a few years after Blackstone’s Commentaries appeared
in print, the members of the Continental Congress (the body that coordinated the colo-
nial resistance against Great Britain) were gathering in Philadelphia. They realized their
cause was in grave danger. The war was going badly: New York had fallen to the British
army. The Hessians and British Redcoats were about to cut off New England. And, the
British army was planning to crush the rebellion utterly by taking Philadelphia.
The Revolutionary War generation fought for liberty. However, after the war, they
quickly came to fear that their revolution had “unleashed widespread licentiousness,
vice, and crime.” They reacted to this fear in two ways. On the positive side, they called
on private citizens to “invest liberty in virtue.” Voluntary organizations “spread the
gospel of Christian goodness and good citizenship.” Second, they set aside their liberal
ideas—individual autonomy, consent, and law—and
called on local and state governments to limit or deny liberty to those individuals who
appeared to endanger public peace. Legislatures, judges, and other officials responding
by exercising the state’s police power to detain, prosecute, and punish wrongdoers.
(Kann 2008, 74; emphasis added)
CRIMINAL LAw IN U.S. SoCIETY 9
In short, people fought and died to be free from King George III and his detested
exercise of police power during the American Revolution, only to replace it with their
own officials’ exercise of the same police power. Historian William Novak (1996) has
convincingly documented a “powerful government tradition devoted in theory and
practice to the vision of a well-regulated society” in the century after the Revolution.
He has also established that criminal law was a “key technology in morals and cultural
policing” to maintain that regulation (150).
POLice POwer And PubLic mOrALS LO1

“No subject can more closely affect the interest of man considered as an individual, or
in a more common and enlarged view, as a member of society, than those laws he may
be subject to, and none more certainly than those that concern his liberty and life.” So
wrote Jacob Wheeler (1854, 1) in 1854, in the Preface to his history of criminal cases in
the Courts of Justice of New York City. Wheeler took a decidedly sociological approach
in the cases he collected. He promised his readers that he would focus on the “thousands
and tens of thousands of complicated and important relations that grow out of property,
liberty, and life” (6). Here’s how he tied these social relations to morals crimes:
Man is not only a social, but a reasonable being, not only rational, but moral, and,
therefore, accountable. It is in this state we find him, and it is in this state that he is
subject to those regulations mankind has adopted for their government, and that we
shall attempt to deal with in the work before us.
It is here where those salutary principles of criminal law operate with effect,
admonishing, restraining, and punishing the foolish, the rash, and the wicked: bind-
ing the parts of society together in one bond of equal justice. (Wheeler 1854, 6; also
quoted in Novak 1996, 150)
With this background, I believe you’ve got a good idea of how broad and deep our
criminal law imagination is. Broad and deep as it is, our criminal law has its limits, as
you learn in:
1. Chapter 2, the constitutional limits imposed by the protections of free speech, the
right to possess and use guns; and due process rights to life, liberty, and property
2. Chapter 3, the principle of criminal liability voluntary act requirement
3. Chapter 4, the criminal intent requirement
4. Chapter 5, the justification defenses, such as self-defense and defense home
5. Chapter 6, the excuse defenses, such as insanity and age
6. Chapter 7, the limits imposed on criminal liability for others’ behavior (accom-
plice) and relationships (vicarious liability)
7. Chapter 8, limits on uncompleted crimes—attempt, solicitation, and conspiracy
8. Chapters 10–12, limits imposed by definitions of crimes against persons, property,
and public order and morals
9. Chapter 13, the limits to crimes of international and domestic terrorism, and to
immigration crimes
I hope these—and all the other chapters—will help you to understand the criminal
law and the social reality of the U.S. criminal law imagination. But, I hope our journey
through the criminal law will encourage you also to adopt Criminal Law’s critical
approach. If you do, you can formulate your own criminal law imagination, namely
how broad and deep it should be, as well as what it is.
CRIMES AND NoNCRIMINAL LEGAL wRoNGS

LO2 The opening case summaries demonstrate that criminal law is only one kind of social
control called upon to respond to deviating from social norms. The norm is the other
four categories mentioned in the beginning of the chapter (p. 4). And they should be,
because criminal liability is the harshest and most expensive form of social control.
But, criminal law is a last resort, a “very rough engine” of social control (Stephen
1883, 2:81).
torts private wrongs for In this section, we concentrate on the noncriminal wrongs called torts, private
which you can sue the wrongs for which you can sue the party who wronged you and recover money.
party who wronged you
and recover money Crimes and torts represent two different ways our legal system responds to social
and individual harm (Table 1.2). Before we look at their differences, let’s look at how
they’re similar.
• Both are sets of rules telling us what we can’t do (“Don’t steal”) and what we must
do (“Pay your taxes”).
• The rules apply to everybody in the community, and they speak on behalf of every-
body, with the power and prestige of the whole community behind them.
• The power of the law backs up the enforcement of the rules. (Hart 1958, 403)
How are they different? Some believe that crimes injure the whole community,
whereas torts harm only individuals. But that’s not really true. Almost every crime is
also a tort. Many crimes and torts even have the same name (there’s a crime and a tort
called “assault”). Other crimes are torts even though they don’t have the same names;
for example, the crime of murder is also the tort of wrongful death. In fact, the same
killing sometimes is tried as murder and later as a civil wrongful death suit. One famous
example is in the legal actions against the great football player O. J. Simpson. He was
acquitted in the murder of his ex-wife and her friend in a criminal case but then lost in
a tort case for their wrongful deaths.
Also, torts don’t just harm other individuals; they can also harm the whole commu-
nity. For example, breaches of contract don’t just hurt the parties to the contract. Much
of what keeps daily life running depends on people keeping their word when they agree
to buy, sell, perform services, and so on.
Are crimes just torts with different names? No. One difference is that criminal
prosecutions are brought by the government against individuals; that’s why criminal
TAbLE 1.2 Crimes and Torts: Similarities and Differences

crimeS tOrtS (PrivAte wrOngS)
Crimes originate from a list of “can’ts” and “musts.” Torts originate from a list of “can’ts” and “musts.”
The list applies to everybody. The list applies to everybody.
Crimes injure another individual and the whole Torts injure another individual and the whole
community. community.
Criminal prosecutions are brought by the state Private parties bring tort actions against other
against individuals. parties.
Convicted offenders pay money to the state or serve Defendants who lose in tort cases pay money to the
time in the custody of the state. plaintiff who sued.
Criminal conviction is the condemnation by the The tort award compensates the plaintiff who
whole community, the expression of its “hatred, fear, brought the suit.
or contempt for the convict.”
The state has to prove all elements of the crime by The burden on the plaintiff is to prove responsibility
“proof beyond a reasonable doubt.” by a preponderance of the evidence.
CRIMES AND NoNCRIMINAL LEGAL wRoNGS 11
cases always have titles such as “U.S. v. Rasul,” “People v. Menendez,” “State v. Hep-
worth,” or “Commonwealth v. Kim” (the first name in the case title is what that gov-
ernment entity calls itself, and the second name, the defendant’s, is the individual being
prosecuted). Nongovernment parties bring tort actions against other parties who may
or may not be governments.
A second difference is that injured plaintiffs (those who sue for wrongs in tort
cases) get money (called damages) from defendants for the injuries they suffer. In crimi-
nal actions, defendants pay fines to the state and/or serve time doing community ser-
vice, in jail, or in prison.
Perhaps the most important difference between torts and crimes is the conviction
itself. It’s “the expression of the community’s hatred, fear, or contempt for the convict”
(Hart 1958). Professor Henry M. Hart (1958) sums up the difference this way:
[Crime] is not simply anything which a legislature chooses to call a “crime.” It is not
simply antisocial conduct which public officers are given a responsibility to suppress.
It is not simply any conduct to which the legislature chooses to attach a criminal
penalty. It is conduct which . . . will incur a formal and solemn pronouncement of the
moral condemnation of the community. (405)
But you should understand that condemning words alone don’t make crimes
different from torts. Not at all. When the legislature defines a crime, it’s issuing a
threat—“Don’t steal, or else . . .” “File your taxes, or else . . .” What’s the “or else”?
It’s the threat of punishment, a threat that society will carry out against anyone who
commits a crime.
In fact, so intimately connected are condemnation and criminal punishment that
some of the most distinguished criminal law scholars say that punishment has two
indispensable components, condemnation plus “hard treatment.” According to Andrew
von Hirsch, honorary professor of Penal Theory and Penal Law at the University of
Cambridge, a prolific writer on the subject, and his distinguished colleague, Andrew
Ashworth, the Vinerian Professor of Law at Oxford University, “Punishment conveys
censure, but it does not consist solely of it. The censure in punishment is expressed
through the imposition of a deprivation (‘hard treatment’) on the offender” (Von Hirsch
and Ashworth 2005, 21).
If the threat isn’t carried out when a crime is committed, condemnation is meaning-
less, or worse—it sends a message that the victim’s suffering is worthless. Punishment
has to back up the condemnation. According to another respected authority on this
point, Professor Dan Kahan (1996), “When society deliberately forgoes answering the
wrongdoer through punishment, it risks being perceived as endorsing his valuations;
hence the complaint that unduly lenient punishment reveals that the victim is worthless
in the eyes of the law” (598).
We’ll come back to the subject of punishment later in this chapter, where we’ll
discuss its purposes more fully, and again in Chapter 2, where we’ll discuss the consti-
tutional ban on “cruel and unusual punishment.” But here it’s important to emphasize
the intimate connection (often overlooked) between punishment and its place in the compensatory damages
criminal law imagination itself. damages recovered by
tort plaintiffs for their
Even on this important point of expression of condemnation backed up by pun- actual injuries
ishment, the line between torts and crime can get blurred. In tort cases involving
violence and other especially “wicked” circumstances, plaintiffs can recover not only punitive damages
damages recovered by
compensatory damages for their actual injuries but also substantial punitive damages tort plaintiffs to punish
to make an example of defendants and to “punish” them for their “evil behavior” the defendant for their
(Black 1983, 204). “evil behavior”
Now that you’ve got some idea of what criminal wrongs are and how they differ
from private wrongs, let’s go inside criminal law to see how the law classifies crimes so
we can make sense of the enormous range of behavior it covers.
CLASSIFYING CRIMES
LO3 There are various ways to classify crimes, most of them with ancient roots. One scheme
divides crimes into two categories: mala in se crimes and mala prohibita offenses.
mala in se (inherently Mala in se (inherently evil) crimes require some level of criminal intent (discussed in
evil) crimes offenses
Chapter 4). We don’t need a law to tell us murder, rape, robbery, and stealing are crimes
that require some level
of criminal intent because they’re inherently evil.
Mala prohibita offenses are crimes only because a specific statute or ordinance pro-
mala prohibita offenses
hibits them. They include minor offenses, such as parking illegally, drinking in public,
offenses that are crimes
only because a specific and the countless other minor offenses that don’t require criminal intent, only a vol-
statute or ordinance pro- untary act (Chapter 3). Professor Wayne Logan (2001, 1409) calls them “the shadow
hibits them criminal law of municipal governance.” For a selection from Professor Logan’s (1426–28)
list, see the “Municipal Ordinances” section (p. 15).
The most widely used scheme for classifying crimes is according to the kind and
felonies crimes punish- quantity of punishment. Felonies are crimes punishable by death or confinement in the
able by death or confine- state’s prison for one year to life without parole; misdemeanors are punishable by fine
ment in the state’s prison
and/or confinement in the local jail for up to one year.
for one year to life with-
out parole Notice the word “punishable”; the classification depends on the possible punish-
ment, not the actual punishment. For example, Viki Rhodes pled guilty to “Driving
misdemeanors offenses
under the Influence of Intoxicants, fourth offense,” a felony. The trial court sentenced
punishable by fine and/or
confinement in the local her to 120 days of home confinement. When she later argued she was a misdemean-
jail for up to one year ant because of the home confinement sentence, the appeals court ruled that “a person
whose felony sentence is reduced does not become a misdemeanant by virtue of the
state criminal reduction but remains a felon” (Commonwealth v. Rhodes 1996, 532).
codes criminal law
Why should the label “felony” or “misdemeanor” matter? One reason is the dif-
created by elected rep-
resentatives in state ference between procedure for felonies and misdemeanors. For example, felony defen-
legislatures dants have to be in court for their trials; misdemeanor defendants don’t. Also, prior
felony convictions make offenders eligible for longer sentences. Another reason is that
municipal codes
the legal consequences of felony convictions last after punishment. In many states, for-
criminal law created by
city and town councils mer felons can’t vote, can’t serve in public office, can’t work in certain occupations
elected by city residents and professions, and can’t be attorneys. A felony conviction also can be a ground for
divorce. This isn’t true of misdemeanor offenders.
U.S. Criminal
Code criminal law cre- Now, let’s turn from the classifications of crimes to the two divisions of criminal
ated by the U.S. Congress law: the general and special parts.
SoURCES oF CRIMINAL LAw

LO4 By far the most prevalent source of criminal law is found in state criminal codes created
by elected representatives in state legislatures and municipal codes created by city and
town councils elected by city residents.
administrative There’s also a substantial—and most rapidly growing—body of criminal law in the
agencies appointed
participants in creating
U.S. Criminal Code created by the U.S. Congress. These elected bodies frequently rely
criminal law that assist on administrative agencies, whose members are appointed, not elected by the voters, to
the U.S. Congress “participate” in creating criminal law.
SoURCES oF CRIMINAL LAw 13
Criminal court opinions, especially state appeals courts, in fact create criminal law by criminal court opinions
interpreting state and municipal criminal codes. (Almost every case excerpt in your book create criminal law by
interpreting state and
is an edited version of an appellate court opinion. See pp. 29–30 later in this chapter.)
municipal criminal codes
Criminal law enforcement agencies, namely police and prosecution, create crimi-
nal law too, especially in the “all the rest” crimes (p. 6 earlier) By means of informal criminal law enforce-
ment agencies create
discretionary law making, these professionals make decisions based on their education,
criminal law through
training, and their experience that results in how the criminal law process works on a informal discretionary law
day-to-day basis. making to decide how the
Let’s look at each of these sources in more detail. criminal law process works
on a day-to-day basis
State Criminal Codes LO4

From time to time in U.S. history, reformers have called for the abolition of the com-
mon law crimes and their replacement with criminal codes created and defined by
elected legislatures. The first criminal codes appeared in 1648, the work of the New
England Puritans. The Laws and Liberties of Massachusetts codified (put into writing) codified written
the colony’s criminal law, defining crimes and spelling out punishments. definitions of crimes and
punishment enacted
John Winthrop, the author of the code, stated the case for a code this way: “So soon by legislatures and
as God had set up political government among his people Israel he gave them a body of published
laws for judgment in civil and criminal causes. . . . For a commonwealth without laws is
like a ship without rigging and steerage” (Farrand 1929, A2).
Some of the codified offenses sound odd today (witchcraft, cursing parents, blas-
phemy, and idolatry), but others—for example, rape—don’t: “If any man shall ravish
any maid or single woman, committing carnal copulation with her by force, against her
own will, that is above ten years of age he shall be punished either with death or some
other grievous punishment” (5).
Another familiar codified offense was murder: “If any man shall commit any willful
murder, which is manslaughter, committed upon premeditated malice, hatred, or cruelty
not in a man’s necessary and just defense, nor by mere casualty against his will, he shall
be put to death” (6).
Hostility to English institutions after the American Revolution spawned another
call by reformers for written legislative codes to replace the English common law.
The eighteenth-century Enlightenment, with its emphasis on reason and natural law,
inspired reformers to put aside the piecemeal “irrational” common law scattered
throughout judicial decisions and to replace it with criminal codes based on a natural
law of crimes. Despite anti-British feelings, reformers still embraced Blackstone’s Com-
mentaries (1769) and hoped to transform his complete and orderly outline of criminal
law into criminal codes.
Reformers contended judge-made law was not just disorderly and incomplete; it
was antidemocratic. They believed legislatures representing the popular will should
make laws, not aloof judges out of touch with public opinion. Thomas Jefferson pro-
posed such a penal code for Virginia (Bond 1950). The proposed code never passed the
Virginia legislature, not because it codified the law but because it recommended too
many drastic reductions in criminal punishments (Preyer 1983, 53–85).
There was also a strong codification movement during the nineteenth century. Of
the many nineteenth-century codes, two codes stand out. The first, the most ambi-
tious, and least successful, was Edward Livingston’s draft code for Louisiana, com-
pleted in 1826. Livingston’s goal was to rationalize into one integrated system criminal
law, criminal procedure, criminal evidence, and punishment. Livingston’s draft never
became law.
The second, David Dudley Field’s code, was less ambitious but more successful.
Field was a successful New York lawyer who wanted to make criminal law more acces-
sible, particularly to lawyers. According to Professors Paul Robinson and Markus
Dubber (2004):
Field’s codes were designed to simplify legal practice by sparing attorneys the tedium
of having to sift through an ever rising mountain of common law. As a result, Field
was more concerned with streamlining than he was with systematizing or even
reforming New York penal law. (3)
Field’s New York Penal Code was adopted in 1881 and remained in effect until
1967, when New York adopted most of the Model Penal Code (described next in “The
Model Penal Code (MPC)” section).
LO4 The Model Penal Code (MPC)

The codification movement gathered renewed strength after the American Law Institute
(ALI) decided to “tackle criminal law and procedure” (Dubber 2002, 8). ALI was cre-
ated by a group of distinguished jurists “to promote the clarification and simplification
of the law and its better adaptation to social needs, to secure the better administration
of justice, and to encourage and carry on scholarly and scientific legal work” (8). After
its first look at criminal law and procedure in the United States, the prestigious group
“was so appalled by what it saw that it decided that . . . what was needed was a fresh
start in the form of model codes (8).
The Great Depression and World War II stalled the development of a model penal
code. But after the war, led by reform-minded judges, lawyers, and professors, ALI was
committed to replacing the common law. From the earliest of thirteen drafts written
Model Penal Code during the 1950s to the final version in 1962, in the Model Penal Code (MPC), ALI
(MPC) proposed crimi- (1985) made good on its commitment to draft a code that abolished common law
nal code drafted by the
crimes.
American Law Institute
and used to reform crimi- After its adoption in 1962, more than forty states changed their criminal codes. None
nal codes adopted the MPC completely; but criminal law in all states, not just states that rewrote
their codes, felt its influence (Dubber 2002, 6). More than 2,000 opinions from every
state, the District of Columbia, and the federal courts have cited the MPC (7). Many of
the case excerpts you encounter in this book are from those 2,000. Moreover, this book
follows the general structure and analysis of the MPC, because if you understand the
MPC’s structure and analysis, you’ll understand criminal law itself. You encounter many
variations of MPC throughout the book. However, “If there is such a thing as a common
denominator in American criminal law, it’s the Model Penal Code” (Dubber 2002, 5).
Let’s look briefly at the American Law Institute’s Model Penal Code (MPC) defini-
tion of behavior that deserves punishment. It’s the framework we use to guide our anal-
criminal liability ysis of criminal liability, namely “conduct that unjustifiably and inexcusably inflicts or
conduct that unjustifiably threatens substantial harm to individual or public interests” (ALI 1985, § 1.02(1)(a)).
and inexcusably inflicts
or threatens substantial Here’s a breakdown of the words and phrases in the definition:
harm to individual or
public interests
1. Conduct that
2. Unjustifiably and inexcusably
3. Inflicts or threatens substantial harm
4. To individual or public interests
The Elements of Criminal Liability boxes here illustrate these elements as they apply
to criminal conduct crimes (rape as an example here); and “result crimes” (murder is
ELEMENTS OF RAPE
Actus Reus Mens Rea Circumstance Criminal Conduct

(Voluntary Act) Intent to sexually Victim nonconsent Rape
1. Sexual penetrate
penetration by
2. Force or threat of
force
ELEMENTS OF FIRST-DEGREE MURDER (SPECIFIC INTENT)
Actus Reus Mens Rea Circumstance Causation Criminal

(Voluntary Act) Intent to kill Premeditated, Factual and Harm
Killing another deliberate, or legal cause Death
person atrocious of death
the example here). There you have, in a nutshell, the elements of criminal liability in the
states and the federal government that we elaborate on and apply to the definitions of
individual crimes throughout the book. Let’s turn next to another source of criminal
law: municipal ordinances.
Municipal Ordinances LO4

City, town, and village governments enjoy broad powers to create criminal laws, a
power local governments are enthusiastically using in today’s atmosphere of “zero tol-
erance” for drugs, violence, public disorder, and other “quality of life” offenses that vio-
late community standards of good manners in public (Chapter 12). Municipalities have
a “chorus of advocates” among criminal law reformers who’ve helped cities write a
“new generation” of their old vagrancy and loitering ordinances that “cleanse” them of
prior objections that they’re unconstitutional and discriminatory (Logan 2001, 1418).
Municipal criminal lawmaking isn’t new; neither is the enthusiasm for it. In his
provocative book The People’s Welfare, historian William Novak (1996) convincingly
documents the “powerful government tradition devoted in theory and practice to the
vision of a well-regulated society” from 1787 to 1877:
At the heart of the well-regulated society was a plethora of bylaws, ordinances, stat-
utes, and common law restrictions regulating nearly every aspect of early American
economy and society. . . . These laws—the work of mayors, common councils, state
legislators, town and county officers, and powerful state and local judges . . . taken
together . . . demonstrate the pervasiveness of regulation in early American versions of
the good society: regulations for public safety and security; . . . the policing of public
space . . .; all-important restraints on public morals (establishing the social and cultural
conditions of public order). (1–2)
Here’s a sample from current ordinances collected by Professor Wayne Logan

(2001):
Pick-pocketing; disturbing the peace; shoplifting; urinating in public; disorderly con-
duct; disorderly assembly; unlawful restraint; obstruction of public space; harassment
over the telephone; resisting arrest; obscenity; nude dancing; lewdness, public inde-
cency, and indecent exposure; prostitution, pimping, or the operation of “bawdy”
houses; gambling; graffiti and the materials associated with its inscription; littering;
aggressive begging and panhandling; vandalism; trespass; automobile “cruising”;
animal control nuisances; excessive noise; sale or possession of drug paraphernalia;
simple drug possession; possession of weapons other than firearms; possession of basic
firearms and assault-style firearms; discharge of firearms; sleeping, lying, or camping
in public places; driving under the influence of drugs or alcohol; carrying an open con-
tainer of alcohol; underage drinking; and public drinking and intoxication; vagrancy
and loitering; curfews for minors; criminal assault and battery. (1426–28)
Municipal ordinances often duplicate and overlap state criminal code provisions.
When they conflict, state criminal code provisions are supposed to trump municipal
ordinances. A number of technical rules control whether they’re in conflict, and we
don’t need to get into the details of these rules, but their gist is that unless state criminal
codes make clear that they’re preempting local ordinances, local ordinances remain in
effect (Chicago v. Roman 1998).
In Chicago v. Roman, Edwin Roman attacked 60-year-old Anthony Pupius. He
was convicted of the Chicago municipal offense of assault against the elderly and was
sentenced to ten days of community service and one year of probation. However, the
ordinance contained a mandatory minimum sentence of at least 90 days of incarcera-
tion. The city appealed, claiming that the sentence violated the mandatory minimum
required by the ordinance. The Illinois Supreme Court overruled the trial court’s deci-
sion. According to the court, the Illinois legislature can restrict Chicago’s power to
create crimes, but it has to pass a law specifically spelling out the limit. Because the leg-
islature hadn’t passed a law preempting the penalty for assaulting the elderly, Chicago’s
mandatory minimum had to stand.
The long list of ordinances Professor Logan found illustrates the broad power of
municipalities to create local crimes. But, as the example of Chicago v. Roman indi-
cates, the power of municipalities goes further than creating crimes; it includes the
power to determine the punishment, too. They also have the power to enact forfeiture
laws.
Under New York City’s alcohol and other drug-impaired driver’s law, thousands
of impaired drivers have forfeited their vehicles (Fries 2001, B2). Another example: an
Oakland, California, ordinance authorizes forfeiture of vehicles involved in “solicita-
tion of prostitution or acquisition of controlled substances.” The ordinance was passed
after residents complained about individuals driving through their neighborhoods
looking to buy drugs or hire prostitutes (Horton v. City of Oakland 2000, 372).
Don’t get the idea from what you’ve just read that municipalities have unlimited
powers to create crimes and prescribe punishments. They don’t. We’ve already noted
two limits—constitutional limits (which we discuss further in Chapter 2 and again in
Chapter 12) and the power of states to preempt municipal criminal lawmaking and
punishment. Municipalities also can’t create felonies, and they can’t prescribe punish-
ments greater than one year in jail.
LO4 The U.S. Criminal Code

Federal criminal law has exploded in size and scope and deteriorated in quality. It
used to focus on inherently wrongful conduct: treason, murder, counterfeiting, and
the like. Today, an unimaginably broad range of socially and economically beneficial
conduct is criminalized . . . . More and more Americans who have worked diligently to
abide by the law are being trapped and unjustly punished due to vague, overly broad
criminal offenses. Congress must halt its overcriminalization rampage.
—Heritage Foundation (2015)
According to a joint study conducted by the unabashedly conservative Heritage Founda-

tion, and the equally committed liberal National Association of Criminal Defense Law-
yers, there were over 4,450 crimes in the U.S. Criminal Code” in 2008. On top of these,
scores of federal departments and agencies have created so many criminal offenses
that the Congressional Research Service [the nonpartisan research arm of the U.S.
Congress] itself admitted that it was unable to even count all of the offenses. The
service’s best estimate? “Tens of thousands.” In short, Congress’s own experts do not
have a clear understanding of the size and scope of federal criminalization.
The U.S. Criminal Code covers more—and more trivial—conduct than most state
and municipal codes! A huge number of federal offenses are minor regulation violations
like tearing the tag off a mattress (Green 1997). Far more pervasive are fraud and mis-
representation offenses. The U.S. Criminal Code contains 100 separate misrepresenta-
tion offenses. Some make it a crime to lie; others scoop up not just lying but
(a) . . . whoever, in any matter within the jurisdiction of the executive, legislative, or
judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or
representation; or
(3) makes or uses any false writing or document knowing the same to contain
any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense
involves international or domestic terrorism (as defined in section 2331), imprisoned
not more than 8 years, or both. (U.S. Criminal Code, Title 18 § 1001)
In Professor Stuntz’s (2001) words, “It is often said that ordinary lying is not a
crime—a comment usually made by way of explaining the narrowness of the definition
of perjury—but the statement is wrong; a good deal of ordinary lying fits within the
definition of one or another federal felony” (517).
Administrative Agency Crimes LO4

Both federal and state legislatures frequently grant administrative agencies the author-
ity to make rules. One example is familiar to anyone who has to file a tax return. The
U.S. Internal Revenue Service income tax regulations are based on the rule-making administrative crimes
authority that Congress delegates to the IRS. Another example, this one from the state violations of federal and
state agency rules that
level: state legislatures commonly authorize the state highway patrol agencies to make
make up a controversial
rules regarding vehicle safety inspections. We call violations of these federal and state but rapidly growing
agency rules administrative crimes; they’re a controversial but rapidly growing source source of criminal law
of criminal law.
Informal Discretionary Law Making LO4

The broad and deep reach of the state, municipal, and U.S. criminal code has led to
a huge amount of law making by police and prosecutors. Here’s how it works. There
YOU DECIDE
Was the “law making” of the police and
prosecutor ethical?
I t’s a misdemeanor to drink in public parks in most cities,

including Minneapolis. Yet when a gourmet group had a
brunch in one of the city’s parks, because they thought the
This incident displays both the strengths and weak-
nesses of discretion. The legislature obviously didn’t
intend the statute to cover drinking of the type the gour-
park had just the right ambience in which to enjoy their met club engaged in; arresting them would have been
salmon mousse and imported French white wine, not only foolish. On the other hand, arresting and prosecuting
did the police not arrest the group for drinking in the park, the Native American might well have been discrimina-
but the city’s leading newspaper wrote it up as a perfectly tory, a wholly unintended and unacceptable result of law
respectable social event. enforcement that is discretionary and selective.
A public defender I knew wasn’t pleased with these
decisions. He pointed out that the police had arrested— Question
and the prosecutor was at that moment prepared to pros- • Do you believe this case involved unacceptable crimi-
ecute—a Native American caught washing down a tuna nal law making? Back up your answer with details from
fish sandwich with cheap red wine in another Minneapolis the section “Informal Discretionary Law Making.”
park. The public defender—a bit of a wag—noted that both
the gourmet club and the Native American were consum-
ing items from the same food groups.
are too many minor crimes for police to arrest all suspects. Of course, in any case,
there’s no such thing as total criminal law enforcement. Police can’t arrest all suspects,
and prosecutors can’t charge all suspects police arrest. There are simply too many.
So, they’re left with exercising their discretion. This means that the laws in the codes
don’t match the law as it’s enforced. Law enforcers will “make” the law as it’s actually
enforced. In other words, the social reality of our criminal law is that law enforcers
(police and prosecutors) will create the law as it operates in the real world.
Furthermore, the prosecutor’s power to plea bargain, as a practical matter, turns the
prosecutor into a judge. Here’s how this works. Suppose a man breaks into a woman’s
apartment, stabs but doesn’t kill her, rapes her, and takes her jewelry. This single event
allows the prosecutor to threaten to charge the culprit with all four crimes, thereby
increasing the possible minimum or maximum penalty under all sentencing regimes
(Chapter 2). The prosecutor then can use the threat as a bargaining chip to get a guilty
plea.
Both the power to charge and to plea bargain (and the power of the police not to
arrest) the broad and deep criminal law lowers the cost of convicting criminal defen-
dants. According to Professor Stuntz (2001),
Substituting an easy-to-prove crime that is harder to establish obviously makes crimi-
nal litigation cheaper for the government. And the cost saving is substantial, since
guilty pleas are much cheaper than trials, and defendants often respond to easily
proved charges by pleading guilty. (520)
CRIMINAL LAw IN THE U.S. FEDERAL SYSTEM 19
CRIMINAL LAw IN THE U.S. FEDERAL SYSTEM

Until now, we’ve referred to criminal law in the singular. That’s inaccurate, and
you’ll see this inaccuracy repeated often in the rest of the book because it’s conve-
nient. But let’s clear up the inaccuracy. In our federal system, there are 52 criminal federal system 52 crim-
codes, one for each of the 50 states, one for the District of Columbia, and one for inal codes, one for each
of the 50 states, one for
the U.S. criminal code.
the District of Columbia,
The U.S. government’s power is limited to crimes specifically related to national and one for the U.S.
interests, such as crimes committed on military bases and other national property; criminal code
crimes against federal officers; and crimes that are often difficult for one state to pros-
ecute—for example, drug, weapons, organized and corporate crime, and crimes involv-
ing domestic and international terrorism (Chapter 13). The rest of criminal law, which
is most of it, is left to the state codes. These are the crimes against persons, property,
and public order and morals in the special part of the criminal law (Chapters 9–12).
So we have 52 criminal codes, each defining specific crimes and establishing gen-
eral principles for the territory and people within it. And they don’t, in practice, define
specific crimes the same. For example, in some states, to commit a burglary, you have to
actually break into and then enter a building. In other states, it’s enough that you enter
a building unlawfully, as in opening an unlocked door to a house the owners forgot to
lock, intending to steal their new 3D TV inside. In still other states, all you have to do
is stay inside a building you’ve entered lawfully—for example, hiding until after closing
time in your college bookstore restroom during business hours, so you can steal your
criminal law textbook and sneak out after the store closes (Chapter 11).
The defenses to crime also vary across state lines. In some states, insanity requires
proof both that defendants didn’t know what they were doing and that they didn’t
know it was wrong to do it. In other states, it’s enough to prove either that defen-
dants didn’t know what they were doing or that they didn’t know that it was wrong
(Chapter 6). Some states permit individuals to use deadly force to protect their homes
from intruders; others require proof that the occupants in the home were in danger of
serious bodily harm or death before they can shoot intruders (Chapter 5).
Punishments also differ widely among the states. Several states prescribe death
for some convicted murderers; others prescribe life imprisonment. Capital punishment
states differ in how they execute murderers: by electrocution, lethal injection, the gas
chamber, hanging, or even the firing squad. The death penalty is only the most dramatic
example of different punishments. Less-dramatic examples affect far more people. For
example, some states lock up individuals who possess small quantities of marijuana for
private use; in other states, it’s not a crime at all (Chapter 12).
This diversity among the criminal codes makes it clear there’s no single U.S. crimi-
nal code. But this diversity shouldn’t obscure the broad outline that’s common to all
criminal laws in the United States. They’re all based on the general principles of liability
that we touched on earlier in this chapter and that you’ll learn about more in depth in
Chapters 3 through 6. They also include the defenses of justification and excuse, which
you’ll learn about in Chapters 5 and 6.
The definitions of the crimes you’ll learn about in Chapters 9 through 12 differ
more, so there we’ll take account of the major differences. But even these definitions
resemble one another more than they differ. For example, “murder” means killing some-
one on purpose; criminal sexual assault includes sexual penetration by force; “robbery”
means taking someone’s property by force or threat of force; “theft” means taking, and
intending to keep permanently, someone else’s property. And the crimes against the
state (Chapter 13) and other crimes in the U.S. Criminal Code don’t recognize state
lines; they apply everywhere in the country.
Now, let’s turn to the other question in the big picture of American criminal law,
the law of punishment and the criminal punishment imagination.
CRIMINAL PUNISHMENT IN U.S. SoCIETY

LO5 The United States has 5 percent of the world’s population and 25 percent of the world’s
prisoners. That makes us the clear leader in world imprisonment rates (see Figure 1.2).
These prisoners aren’t distributed evenly across the population. Most of them come
from city neighborhoods with the most concentrated disadvantage—poverty, unem-
ployment, bad schools, high crime, single- (or no-) parent families, and little to no social
agency support. They are mostly young, poorly educated, with little or no training and
work experience. They often have suffered from other deficits. They entered prison in
poor mental and physical health—substance abuse, mental illness, and risk for infec-
tious diseases—alcohol and other drug addiction; mental and physical illness. And,
most are not White.
LO5 The Era of Mass Imprisonment, 1970s–Present

How did this “era of mass incarceration” come to be, and why? We know when it began.
It followed a period of great social and political upheaval that accompanied a steep rise
in crime and urban riots during the 1960s. The era of mass imprisonment and steep
rise in crime and violence accompanied a shift in political climate. That political culture
turned to a series of policy choices across all branches and levels of government led to
sending more people to prison, and keeping them there longer. All of these changes rep-
resented a consensus that supported prison as a key to crime control. But, is it?
After 40 years of rising incarceration rates, the rate for violent crime (the most-
feared and enraging crimes) “rose, then fell, rose again, and then declined sharply”
(National Research Council 2014, 3). The complicated connections among imprison-
ment, crime, sentencing policies, and the changes over time and place interact with each
other. This makes estimating the social consequences of high imprisonment, including
▸ Figure 1.2 WORLD IMPRISONMENT RATES, 2009

800 756
700 629
600
500
400 335
300
200 153 145
119 89 Rate
100 63
0
.
es
na
n
ta
.S
an
si
ric
pa
al
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hi
U
us
Af
Ja
W
C
R
er
ld
d/
h
or
G
ut
an
W
So
gl
En
Source: walmsley 2009.
CRIMINAL PUNISHMENT IN U.S. SoCIETY 21
its effects on crime, “extremely challenging.” Nevertheless, for whatever reasons, most
studies conclude that more prison has reduced crime. Unfortunately, the evidence
doesn’t tell clearly how much (4).
The most important consequence of mass imprisonment may be the massive expan-
sion of the criminal justice system into the country’s poorest communities. Most pris-
oners (about 90 percent) come home to the neighborhoods—sometimes to the same
house—they left. There, their lives, not surprisingly, return to violence, joblessness, sub-
stance abuse, family breakup, and neighborhood disadvantage. It’s hard to prove that
their time in prison contributed to their difficulties after they came home. However,
“there is little question that incarceration has become another strand in the complex
combination of negative conditions that characterize high-poverty communities in U.S.
cities” (6).
There’s much more to this story of the possible negative consequences that mass
imprisonment may have had not just on released prisoners, but on their families, their
neighborhoods, cities, and beyond. But, there’s enough of it here to make clear that
mass imprisonment may have had unwanted social costs that outweigh its crime reduc-
tion benefits. That much is enough also to make clear that sound criminal punishment
policies require both science and fundamental principles.
There wasn’t much talk of principles during the 1960s and ‘70s when the rising
violence and rapid social change fueled public fear and anger. Fear and anger against
criminals was a powerful force arousing law-abiding people in all neighborhoods, per-
haps most of all in poor neighborhoods where residents were most in danger of being
victimized. Instead of principles, policy makers responded by locking up criminals as
retribution, and to incapacitate them by getting them off the street.
Anger—even hate—aimed at criminals who prey or put in fear law-abiding people
who work hard and play by the rules are certainly in order and definitely healthy. “It is
morally right to hate criminals.” (Stephen 1883, 2:81). But, it’s equally necessary that
in this age of mass imprisonment that we take care to limit this “very rough engine” of
social control (80). Why? Because it can do lots of damage not just to prisoners, but to
their families, neighborhoods, and to our whole society. Following four well-established
and widely accepted principles can guide us in limiting the damages that always come
with imprisonment and which mass imprisonment has aggravated. Here they are in
the form of recommendations made by the National Research Council Committee on
Causes and Consequences of High Rates of Imprisonment:
• Proportionality. Criminal offenses should be sentenced in proportion to their
seriousness.
• Parsimony. The period of confinement should be sufficient but not greater than
necessary to achieve the goals of sentencing policy.
• Citizenship. The conditions and consequences of imprisonment should not be so
severe or lasting as to violate one’s fundamental status as a member of society.
• Social justice. Prisons should be instruments of justice, and as such their collective
effort should be to promote and not undermine society’s aspirations for a fair dis- punishment intention-
ally inflicting pain or
tribution of rights, resources, and opportunities. (8)
other unpleasant con-
sequences on another
Now, we’re ready to turn our full attention to the criminal punishment imagination. person
Defining “Criminal Punishment” LO5

In everyday life, punishment means intentionally inflicting pain or other unpleasant
consequences on another person. It takes many forms. A parent grounds a teenager;
a club expels a member; a church excommunicates a parishioner; a friend rejects a

companion; a school expels a student for cheating—all these are punishments in the
sense that they intentionally inflict pain or other unpleasant consequences (“hard treat-
ment”) on the recipient.
criminal punishment However, none of these is criminal punishment. To qualify as criminal punishment,
penalties that meet four penalties have to meet four criteria:
criteria: (1) inflict pain or
other unpleasant conse- 1. They have to inflict pain or other unpleasant consequences.
quences; (2) prescribe a
punishment in the same
2. They have to prescribe a punishment in the same law that defines the crime.
law that defines the 3. They have to be administered intentionally.
crime; (3) administered
intentionally; (4) admin-
4. The state has to administer them.
istered by the state
The last three criteria don’t need explanation; the first does. “Pain or other unpleas-
ant consequences” is broad and vague. It doesn’t tell us what kind of, or how much,
pain. A violent mental patient confined indefinitely to a padded cell in a state security
hospital suffers more pain than a person incarcerated for five days in the county jail
for disorderly conduct. Nevertheless, only the jail sentence is criminal punishment. The
difference lies in the purpose of the confinement. Hospitalization aims to treat and cure
the mental patient; the pain is a necessary but unwanted side effect, not the reason for
the confinement. On the other hand, the pain of confinement in the jail is inflicted inten-
tionally to punish the inmate’s disorderly conduct.
This distinction between criminal punishment and treatment is rarely clear-cut.
For example, the government may sentence certain convicted criminals to confinement
in maximum-security hospitals; it may sentence others to prison for “treatment” and
“cure.” Furthermore, pain and pleasure don’t always distinguish punishment from
treatment. Shock treatment and padded cells inflict more pain than confinement in
some minimum-security federal prisons with their “country club” atmospheres. When
theories of criminal
measured by pain, those who receive it may well prefer punishment to treatment. Some
punishment ways
of thinking about the critics maintain that the major shortcoming of treatment is that “helping” a patient can
purposes of criminal lead to excessive measures, as it sometimes has, in such examples as massive surgery,
punishment castration, and lobotomy (Hart 1958, 403–405).
LO6 Theories of Criminal Punishment

Theories of criminal punishment refer to thinking about the purposes of criminal pun-
ishment. These theories have given rise to two schools that have battled for five cen-
retributionists inflict- turies, maybe even for millennia: the retributionists and the preventionists (also called
ing on offenders physical consequentialists).
and psychological pain
(“hard treatment”) so The “retributionists” insist that offenders can only pay for their crimes by expe-
that they can pay for riencing the actual physical and psychological pain (“hard treatment”) of having
their crimes punishment inflicted on them. In other words, punishment justifies itself. Those on
preventionists punish-
the prevention side of the divide, utilitarians, insist with equal passion that the pain
ment is only a means to a of punishment can—and should—be only a means to a greater good, usually the
greater good, usually the prevention or at least the reduction of future crime. Let’s look at each of these
prevention or at least the schools. Then we examine a challenge to this centuries’ long criminal punishment
reduction of future crime imagination.
LO6 retributiOn
Striking out to hurt what hurts us is a basic human impulse. It’s what makes us kick the
table leg we stub our toe on, or the bicycle we fall off. This impulse captures the idea
of retribution, which appears in the texts of many religions. Here’s the Old Testament
version:
Now a man, when he strikes down any human life, he is put to death, yes death! And
a man, when he renders a defect in his fellow, as he has done, thus is to be done to
him—break in place of break, eye in place of eye, tooth in place of tooth. (Fox 1995,
19–20; translating Leviticus 24:17)
Retribution looks back to past crimes and punishes individuals for committing
them, because it’s right to hurt them. According to the great Victorian English judge and
historian of the criminal law Sir James F. Stephen (1883), the wicked deserve to suffer
for their evil deeds:
The criminal law proceeds upon the principle that it is morally right to hate criminals,
and it confirms and justifies that sentiment by inflicting on criminals punishments,
which express it. I think it highly desirable that criminals should be hated, that the
punishments inflicted upon them should be so contrived as to give expression to that
hatred. (2:81–82)
Retributionists contend that punishment benefits not just society, as Stephen

emphasized, but criminals. Just as society feels satisfied by “paying back” criminals,
giving criminals their “just deserts,” offenders benefit by putting right their evil. Society
pays back criminals by retaliation; criminals pay back society by accepting responsibil-
ity through punishment. Both paybacks are at the heart of retribution.
But retribution is right only if offenders choose between committing and not com-
mitting crimes. In other words, we can blame criminals only if they had these choices
and made the wrong choice. So in the popular “Do the crime, do the time,” what we
really mean is, “You chose to do the crime, so you have to do the time.” Their wrong
choice makes them blameworthy. And their blameworthiness (the criminal law calls it
their “culpability”) makes them responsible (the criminal law calls it “liable”). So as
culpable, responsible individuals, they have to suffer the consequences of their irrespon-
sible behavior.
Retribution has several appealing qualities. It assumes free will, thereby enhancing
individual autonomy. Individuals who have the power to determine their own destinies
aren’t at the mercy of forces they can’t control. Retribution also seems to accord with
human nature. Hating and hurting wrongdoers—especially murderers, rapists, robbers,
and other violent criminals—appear to be natural impulses (Gaylin 1982; Wilson and
Herrnstein 1985, ch. 19).
Retribution’s ancient pedigree also has its appeal. From the Old Testament’s phi-
losophy of taking an eye for an eye, to the nineteenth-century Englishman’s claim that
it’s right to hate and hurt criminals, to today’s “three strikes and you’re out” and “do
the crime, do the time” sentences (Chapter 2), the desire for retribution has run strong
and deep in both religion and criminal justice. Its sheer tenacity seems to validate
retribution.
Retributionists, however, claim that retribution rests not simply on long use but
also on two firm philosophical foundations, namely, culpability and justice. According
to its proponents, retribution requires culpability. Only someone who intends to harm culpability only some-
her victim deserves punishment; accidents don’t qualify. So people who load, aim, and one who intends to harm
her victim deserves pun-
fire guns into their enemies’ chests deserve punishment; hunters who fire at what they
ishment; accidents don’t
think is a deer and hit their companions who they should know are in the line of fire, qualify
don’t. Civil law can deal with careless people (Chapter 4); the criminal law ought to
punish only people who harm their victims “on purpose.”
Retributionists also claim that justice is the only proper measure of punishment.
justice depends on Justice is a philosophical concept whose application depends on culpability. Culpability
culpability; only those depends on blame; we can punish only those we can blame; we can blame only those
who deserve punishment
who freely choose, and intend, to harm their victims. Therefore, only those who deserve
ought to receive it
punishment can justly receive it; if they don’t deserve it, it’s unjust. Similarly, justice is
the only criterion by which to determine the quality and quantity of punishment (see
“Disproportionate Punishments,” in Chapter 2).
Opponents find a lot to criticize in retribution. First, it’s difficult to translate
abstract justice into concrete penalties. What are a rapist’s “just deserts”? Is castration
for a convicted rapist justice? How many years in prison is a robbery worth? How
much offender suffering will repay the pain of a maimed aggravated assault victim?
Another criticism is that the urge to retaliate isn’t part of human nature in a civi-
lized society; it’s the last remnant of barbarism. Retributionists can only assume that
human nature cries out for vengeance; they can’t prove it. So it’s time for the law to
reject retribution as a purpose for punishment. There’s a substantial body of empirical
research from psychology, anthropology, and biology contesting this “barbarism” argu-
ment. Instead, they maintain, “a wide variety of empirical studies indicate that people
broadly share intuitions that serious wrongdoing should be punished and also share
intuitions about the relative blameworthiness of different transgressions” (Robinson,
Kurzban, and Jones 2007, 1636).
Determinists, which include many criminologists, reject the free-will assumption
underlying retribution (Mayer and Wheeler 1982; Wilson and Herrnstein 1985). They
maintain that conditions and forces beyond human control determine individual behav-
deterrence the use of ior. Social scientists have shown the relationship between social conditions and crime;
punishment to prevent the usual suspects are race, ethnicity, gender, age, neighborhood, education, and class.
or reduce future crimes
Psychiatrists point to subconscious forces beyond the conscious will’s control that
specific deterrence determine criminal conduct. A few biologists have linked violent crime to biological
aims to reduce crime
and biochemical abnormalities. Determinism undermines the theory of retribution
by inflicting the actual
punishment to convince because it rejects blame, and punishment without blame is unjust.
offenders not to commit Another argument against retribution is the vast number of crimes that don’t
crimes in the future require culpability to qualify for criminal punishment (Diamond 1996, 34). This
includes almost all the crimes outside the “core felonies” discussed earlier, and which
general deterrence we’ll encounter again in Chapter 3 (drug and gun possession), Chapter 4 (negligent
aims to reduce crime by homicide and no-fault open bottle laws), and Chapter 12 (offenses against public order
the threat of punishment and morals). It includes some serious crimes, too—for example, statutory rape—where
to convince criminal
wannabes in the general
neither the consent of the victim nor an honest and reasonable mistake about the
population to not com- victim’s age relieves statutory rapists from criminal liability (discussed in Chapter 10)—
mit a crime in the future and several kinds of unintentional homicides (discussed in Chapters 4 and 9).
LO6 PreventiOn
Prevention (also called consequentialism) looks forward to the consequences of crimi-
nal conduct. It inflicts pain, not for its own sake, but to prevent (or at least reduce)
future crimes. Punishment theorists break it down into three functions:
incapacitation prevents 1. Deterrence. Aims by specific deterrence, actual punishment to convince present
convicted criminals from offenders not to commit crimes in the future; and by general deterrence, the threat
committing future crimes of punishment in the future, to convince criminal wannabes in the general popula-
by locking them up, or tion who haven’t committed crimes from doing so.
more rarely, by alter-
ing them surgically or 2. Incapacitation prevents convicted criminals from committing future crimes by
executing them locking them up, or more rarely, by altering them surgically or executing them.
3. Rehabilitation (also called reformation) aims to prevent future crimes by changing rehabilitation aims to
individual offenders so that they want to play by the rules and support themselves prevent future crimes
by changing individual
and their families without committing future crimes. offenders so that they
want to play by the rules
Notice how all three forms of prevention inflict pain, not for its own sake, but to and won’t commit any
secure the greater good of preventing future crimes. Let’s look at each of these forms more crimes in the future
of prevention.
DETERRENCE Jeremy Bentham, an eighteenth-century English philosopher and law LO6

reformer, promoted deterrence. Bentham was part of the intellectual movement called
“the Enlightenment.” At the Enlightenment’s core was the notion that natural laws
govern the physical universe and, by analogy, human society. One of these “laws,” hedonism the natural
hedonism, is that human beings seek pleasure and avoid pain. law that human beings
seek pleasure and avoid
A related “law,” rationalism, states that individuals can, and ordinarily do, act to pain
maximize pleasure and minimize pain. Rationalism permits human beings to apply
rationalism the natural
natural laws mechanistically (according to rules) instead of having to rely on the discre- law that individuals can
tionary judgment of individual decision makers. act to maximize pleasure
These ideas, almost insultingly oversimplified here, led Bentham to formulate and minimize pain, per-
mitting human beings
classical deterrence theory. According to the theory, rational human beings won’t com-
to apply natural laws
mit crimes if they know that the pain of punishment outweighs the pleasure gained mechanistically (accord-
from committing crimes. ing to rules) instead of
Prospective criminals weigh the pleasure they hope to get from committing a crime having to rely on the
discretionary judgment
now against the threat of pain they believe they’ll get from future punishment. According to of individual decision
the natural law of hedonism, if prospective criminals fear future punishment more than they makers
derive pleasure from present crime, they won’t commit crimes. In short, they’re deterred.
classical deterrence
Supporters of deterrence argue that the principle of utility—permitting only the theory rational human
minimum amount of pain necessary to prevent the crime—limits criminal punishment beings won’t commit
more than retribution does. crimes if they know that
the pain of punishment
English playwright George Bernard Shaw, a strong deterrence supporter, put it this outweighs the pleasure
way: “Vengeance is mine saith the Lord; which means it is not the Lord Chief Justice’s” gained from committing
(Morris 1974). According to this argument, only God, the angels, or some other divine crimes
being can measure “just deserts.” Social scientists, on the other hand, can determine
principle of utility
how much pain, or threat of pain, deters crime. With this knowledge, the state can sci- permits only the minimum
entifically inflict the minimum pain needed to produce the maximum crime reduction. amount of pain necessary
Deterrence supporters concede that there are impediments to putting deterrence to prevent the crime
into operation. The emotionalism surrounding punishment impairs objectivity, and
often, prescribed penalties rest more on faith than evidence. For example, the economist
Isaac Ehrlich’s (1975) sophisticated econometric study showed that every execution
under capital punishment laws may have saved seven or eight lives by deterring poten-
tial murderers. His finding sparked a controversy having little to do with the study’s
empirical validity. Instead, the arguments turned to ethics—whether killing anyone is
right, no matter what social benefits it produces. During the controversy over the study,
one thoughtful state legislator told me that he didn’t “believe” the findings, but if they
were true, then “we’ll just have to deep-six the study.”
Critics find several faults with deterrence theory and its application to criminal
punishment. According to the critics, the rational, free-will individual that deterrence
supporters assumes exists is as far from reality as the eighteenth-century world that
spawned the idea. Complex forces within the human organism and in the external
environment, both of which are beyond individual control, strongly influence behavior
(Wilson and Herrnstein 1985).
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the most cordial reception. He spoke Arabic extremely well, which he
said he learned solely from the Koran.
March 17.—After breakfast the sultan sent for me; his residence
was at no great distance. In front of it there is a large quadrangle,
into which several of the principal streets of the city lead. We passed
through three coozees, as guardhouses, without the least detention,
and were immediately ushered into the presence of Bello, the
second sultan of the Felatahs. He was seated on a small carpet,
between two pillars supporting the roof of a thatched house, not
unlike one of our cottages. The walls and pillars were painted blue
and white, in the Moorish taste; and on the back wall was sketched a
fire-screen, ornamented with a coarse painting of a flower-pot. An
arm-chair, with an iron lamp standing on it, was placed on each side
of the screen. The sultan bade me many hearty welcomes, and
asked me if I was not much tired with my journey from Burderawa. I
told him it was the most severe travelling I had experienced between
Tripoli and Sackatoo, and thanked him for the guard, the conduct of
which I did not fail to commend in the strongest terms.
He asked me a great many questions about Europe, and our
religious distinctions. He was acquainted with the names of some of
the more ancient sects, and asked whether we were Nestorians or
Socinians. To extricate myself from the embarrassment occasioned
by this question, I bluntly replied we were called Protestants. “What
are Protestants?” says he. I attempted to explain to him, as well as I
was able, that having protested, more than two centuries and a half
ago, against the superstition, absurdities, and abuses practised in
those days, we had ever since professed to follow simply what was
written “in the book of our Lord Jesus,” as they call the New
Testament, and thence received the name of Protestants. He
continued to ask several other theological questions, until I was
obliged to confess myself not sufficiently versed in religious
subtleties to resolve these knotty points, having always left that task
to others more learned than myself. He now ordered some books to
be produced which belonged to Major Denham, and began to speak
with great bitterness of the late Boo Khaloom, for making a predatory
inroad into his territories; adding, in his own words, “I am sure the
bashaw of Tripoli never meant to strike me with one hand, while he
offers a present with the other: at least it is a strange way for friends
to act. But what was your friend doing there?” he asked abruptly. I
assured the sultan, that Major Denham had no other object than to
make a short excursion into the country. The books being brought in,
proved to be the Nautical Almanack, two Reviews, Lord Bacon’s
Essays, and Major Denham’s Journal; all which the sultan returned
to me in the most handsome manner. Before taking leave, however, I
had to explain the contents of each, and was set to read them, in
order to give him an opportunity of hearing the sound of our
language, which he thought very beautiful. The sultan is a noble-
looking man, forty-four years of age, although much younger in
appearance, five feet ten inches high, portly in person, with a short
curling black beard, a small mouth, a fine forehead, a Grecian nose,
and large black eyes. He was dressed in a light blue cotton tobe,
with a white muslin turban, the shawl of which he wore over the nose
and mouth in the Tuarick fashion.
In the afternoon I repeated my visit, accompanied by the gadado,
Mahomed El Wordee, and Mahomed Gumsoo, the principal Arab of
the city, to whom I had a letter of introduction from Hat Salah at
Kano. The sultan was sitting in the same apartment in which he
received me in the morning. I now laid before him a present, in the
name of His Majesty the King of England, consisting of two new
blunderbusses highly ornamented with silver, the double-barrelled
pistols, pocket-compass, and embroidered jacket of the late Dr.
Oudney; a scarlet bornouse trimmed with silver lace, a pair of scarlet
breeches, thirty yards of red silk, two white, two red, and two
Egyptian turban shawls, the latter trimmed with gold; four pounds
each of cloves and cinnamon; three cases of gunpowder, with shot
and balls; three razors, three clasp-knives, three looking-glasses; six
snuff-boxes, three of paper, and three of tin; a spy-glass, and a large
English tea-tray, on which the smaller articles were arranged. He
took them up one by one. The compass and spy-glass excited great
interest; and he seemed much gratified when I pointed out that by
means of the former, he could at any time find out the east to
address himself in his daily prayers. He said, “Every thing is
wonderful; but you are the greatest curiosity of all!” and then added,
“What can I give that is most acceptable to the King of England?” I
replied, “The most acceptable service you can render to the King of
England, is to co-operate with His Majesty in putting a stop to the
slave trade on the coast: as the King of England sends every year
large ships to cruise there, for the sole purpose of seizing all vessels
engaged in this trade, whose crews are thrown into prison; and of
liberating the unfortunate slaves, on whom lands and houses are
conferred, at one of our settlements in Africa. “What!” said he, “have
you no slaves in England?” “No. Whenever a slave sets his foot in
England, he is from that moment free.”—“What do you then do for
servants?” “We hire them for a stated period, and give them regular
wages: nor is any person in England allowed to strike another; and
the very soldiers are fed, clothed, and paid by Government.” “God is
great!” he exclaimed; “You are a beautiful people.” I next presented
the sheikh of Bornou’s letter. On perusing it, he assured me I should
see all that was to be seen within his dominions, as well as in Youri
and Nyffee, both of which, I informed him, I was anxious to visit. He
expressed great regret at the death of Dr. Oudney, as he wished
particularly to see an English physician, who might instruct his
people in the healing art. In the evening I made a present to the
gadado of a scarlet bornouse, a pair of scarlet breeches, a red
Turkish jacket, two white, and one red turban shawls, three razors,
three knives, three paper snuff-boxes, and three of tin, three looking-
glasses, two pounds of cloves, and two pounds of cinnamon. The
gadado is an excellent man, and has unbounded influence with the
sultan, to whose sister he is married.
March 18.—Weather clear and warm. Although I was very ill all
day, the courtyard of my house was crowded with people, from
sunrise to sunset; all of whom I had to see with the greatest
patience, and to answer their numberless questions, such as, “Have
you rain in your country?” “Have you wheat?” “Have you goats,
sheep, and horses?” But the obvious and favourite interrogatory
was, “What are you come for?” This I always attempted to explain to
their satisfaction; telling them, “I came to see the country, its rivers,
mountains, and inhabitants, its flowers, fruits, minerals, and animals,
and to ascertain wherein they differed from those in other parts of
the world. When their friends travelled among strange nations, did
they not on their return ask them what they had seen? The people of
England could all read and write, and were acquainted with most
other regions of the earth; but of this country alone they hitherto
knew scarcely any thing, and erroneously regarded the inhabitants
as naked savages, devoid of religion, and not far removed from the
condition of wild beasts: whereas I found them, from my personal
observation, to be civilized, learned, humane, and pious.”
March 19.—I was sent for by the sultan, and desired to bring with
me the “looking-glass of the sun,” the name they gave to my sextant.
I was conducted farther into the interior of his residence than on my
two former visits. This part consisted of coozees, pretty far apart
from each other. I first exhibited a planisphere of the heavenly
bodies. The sultan knew all the signs of the Zodiac, some of the
constellations, and many of the stars, by their Arabic names. The
“looking-glass of the sun” was then brought forward, and occasioned
much surprise. I had to explain all its appendages. The inverting
telescope was an object of intense astonishment; and I had to stand
at some little distance, to let the sultan look at me through it; for his
people were all afraid of placing themselves within its magical
influence. I had next to show him how to take an observation of the
sun. The case of the artificial horizon, of which I had lost the key,
was sometimes very difficult to open, as happened on this occasion:
I asked one of the people near me for a knife to press up the lid. He
handed me one much too small, and I quite inadvertently asked for a
dagger for the same purpose. The sultan was instantly thrown into a
fright: he seized his sword, and half drawing it from the scabbard,
placed it before him, trembling all the time like an aspen leaf. I did
not deem it prudent to take the least notice of his alarm, although it
was I who had in reality most cause of fear; and on receiving the
dagger, I calmly opened the case, and returned the weapon to its
owner with apparent unconcern. When the artificial horizon was
arranged, the sultan and all his attendants had a peep at the sun;
and my breach of etiquette seemed entirely forgotten. After the
curiosity of all was satisfied, I returned to my house. I had now a
severe headach, and was seized with violent vomiting. In the
evening the sultan sent me two sheep, a camel-load of wheat and
rice, some plantains, and some of the finest figs I had ever tasted in
Africa.
March 20.—I returned the visit of Mahomed Gomsoo, the chief of
the Arabs; taking him a present of a scarlet bornouse, jacket and
breeches, two white turbans, two razors, two knives, two snuff-boxes
of paper, and two of tin, a pound of cinnamon, and two cases of
gunpowder, with some balls and flints. I was warned at Kano of his
excessive greediness; but at the same time recommended to make
him a handsome present, and to endeavour by all means to keep
him in good humour, on account of his great influence. On receiving
the presents, Gomsoo promised to give me a letter to the sultan of
Youri, who was his particular friend, and with whom he had lived
many years. He also said he was there when the English came down
in a boat from Timbuctoo, and were lost; which circumstance he
related in the following manner:—They had arrived off a town called
Boosa, and having sent a gun and some other articles as presents to
the sultan of Youri, they sent to purchase a supply of onions in the
market. The sultan apprised them of his intention to pay them a visit,
and offered to send people to guide them through the ledges of rock
which run quite across the channel of the river a little below the town,
where the banks rise into high hills on both sides. Instead of waiting
for the sultan, however, they set off at night, and by day-break next
morning, a horseman arrived at Youri, to inform the sultan that the
boat had struck on the rocks. The people on both sides of the river
then began to assail them with arrows, upon which they threw
overboard all their effects; and two white men arm in arm jumped
into the water, two slaves only remaining in the boat, with some
books and papers and several guns: one of the books was covered
with wax-cloth, and still remained in the hands of the sultan of Youri.
He also told me, and his account was confirmed by others, that the
sultan of Youri was a native of Sockna in the regency of Tripoli, and
prided himself extremely on his birth; but that he was such a
drunkard, whenever any person of consequence came to visit him,
that nothing proved so acceptable a present as a bottle of rum.
I learned, besides, from Gomsoo, that he had been detained a
prisoner three years, in a country called Yoriba, on the west side of
the Quarra; which, he said, entered the sea at Fundah, a little below
the town of Rakah. The latter is opposite to Nyffee; is a place of
great trade between the interior and the coast, and all kinds of
European goods, such as beads, woollen and cotton cloth, pewter
and copper dishes, gunpowder, rum, &c., are to be had there in
exchange for slaves. The inhabitants of Yoriba he represented to be
extremely ill disposed. I may here mention, that during my stay in
Sackatoo, provisions were regularly sent me from the sultan’s table
on pewter dishes, with the London stamp; and one day I even had a
piece of meat served up in a white wash-hand basin, of English
manufacture.
On my return home from Gomsoo’s, I found a message had been
left for me to wait on the sultan, with which I complied immediately
after breakfast. He received me in an inner apartment, attended only
by a few slaves: after asking me how I did, and several other chit-
chat questions, I was not a little surprised when he observed, without
a single question being put by me on the subject, that if I wished to
go to Nyffee, there were two roads leading to it—the one direct, but
beset by enemies; the other safer, but more circuitous: that by either
route I should be detained, during the rains, in a country at present in
a state of open rebellion, and therefore that I ought to think seriously
of these difficulties. I assured him I had already taken the matter into
consideration, and that I was neither afraid of the dangers of the
road nor of the rains. “Think of it with prudence,” he replied, and we
parted. From the tone and manner with which this was spoken, I felt
a foreboding that my intended visit to Youri and Nyffee was at an
end. I could not help suspecting the intrigues of the Arabs to be the
cause; as, they know well, if the native Africans were once
acquainted with English commerce by the way of the sea, their own
lucrative inland trade would from that moment cease. I was much
perplexed the whole day how to act, and went after sunset to consult
Mohamed Gomsoo: I met him at the door of his house on his way to
the sultan, and stopped him, to mention what had passed, and how
unaccountably strange it appeared to me that the sultan, after having
repeatedly assured me of being at liberty to visit every part of his
dominions, should now, for the first time, seem inclined to withdraw
that permission; adding, that before I came to Sackatoo, I never
heard of a king making a promise one day, and breaking it the next.
All this, I knew, would find its way to the sultan. Gomsoo told me I
was quite mistaken; for the sultan, the gadado, and all the principal
people, entertained the highest opinion of me, and wished for
nothing so much as to cultivate the friendship of the English nation.
“But it is necessary for me to visit those places,” I remarked, on
leaving him; “or how else can the English get here?” As I anticipated,
he repeated to the sultan every word I had said; for I was no sooner
at home than I was sent for by the sultan, whom I found seated with
Mahomed Gomsoo, and two others. He received me with great
kindness, and Mahomed Gomsoo said he had made the sultan
acquainted with our conversation. I thanked him, and expressed my
earnest hope I had neither said nor done any thing to offend him.
The sultan assured me that my conduct had always met with his
approbation, and that, although he was freely disposed to show me
all the country, still he wished to do so with safety to myself. An army,
he added, was at this moment ravaging the country through which I
had to pass, and, until he heard from it, it would be unsafe to go; but
he expected farther information in three or four days. He drew on the
sand the course of the river Quarra, which he also informed me
entered the sea at Fundah. By his account the river ran parallel to
the sea coast for several days’ journey, being in some places only a
few hours’, in others a day’s journey, distant from it. Two or three
years ago the sea, he said, closed up the mouth of the river, and its
mouth was at present a day or two farther south; but, during the
rains, when the river was high, it still ran into the sea by the old
channel. He asked me if the King of England would send him a
consul and a physician, to reside in Soudan, and merchants to trade
with his people; and what I had seen among them, which I thought
the English would buy? Here again I enforced the discontinuance of
the slave trade on the coast, as the only effectual method of inducing
the King of England to establish a consul and a physician at
Sackatoo; and that, as the sultan could easily prevent all slaves from
the eastward passing through Haussa and Nyffee, it would be the
consul’s duty to see that engagement faithfully fulfilled. With respect
to what English merchants were disposed to buy, I particularized
senna, gum-arabic, bees’ wax, untanned hides, indigo, and ivory. I
also endeavoured to impress on his mind that Soudan was the
country best situate in all Central Africa for such a trade, which
would not only be the means of enriching himself, but, likewise, all
his subjects; and that all the merchandise from the east and from the
west would be conveyed through his territories to the sea. “I will give
the King of England,” says he, “a place on the coast to build a town:
only I wish a road to be cut to Rakah, if vessels should not be able to
navigate the river.” I asked him if the country he promised to give
belonged to him? “Yes:” said he, “God has given me all the land of
the infidels.” This was an answer that admitted of no contradiction.
He then spoke of Mungo Park, and said, that had he come in the
rainy season, he would have passed the rocks; but that the river fell
so low in the dry season, boats could only pass at a certain point. He
told me, that some timbers of the boat, fastened together with nails,
remained a long time on the rocks; and that a double-barrelled gun,
taken in the boat, was once in his possession; but it had lately burst.
His cousin, Abderachman, however, had a small printed book taken
out of the boat; but he was now absent on an expedition to Nyffee.
The other books were in the hands of the sultan of Youri, who was
tributary to him. I told the sultan, if he could procure these articles for
the King of England, they would prove a most acceptable present,
and he promised to make every exertion in his power.
March 21.—Confined to my bed all day with headach and bilious
vomiting. In the afternoon I was visited by Mahomed Gomsoo, who
was going on a journey to Kano. He casually mentioned, that it was
a fortunate circumstance we did not accompany Hadje Ali Boo
Khaloom, when he brought the bashaw’s present last year; as the
rogue had opened the bashaw’s letter before presenting it to Bello,
and erased out of the list several of the presents named in it, which
he embezzled, and substituted for them some of inferior quality. The
news of his brother’s wanton inroad into the sultan’s territories, with
the bashaw’s forces arriving at the same time, Bello sent Hadje Ali
back without any present, and would not even admit him into his
presence. His conduct, he assured me, had exasperated the sultan
against all the Arabs in the bashaw’s dominions. Both Bello and his
father have, it seems, been much cheated by the Arabs in all their
dealings, twenty sometimes coming at a time on a begging
excursion, with the story of being poor shreefs; and, if not presented
with thirty or forty slaves, besides food and camels, they were sure
to bully the Felatahs, telling them they were not Mussulmans, and
would never see paradise, on account of the number of the faithful
they had put to death in the conquest of Soudan.
March 22.—Clear and warm. My fever a little abated. In the
afternoon the sultan sent for me again, to discuss the advantages
and best method of establishing a permanent intercourse with
England. I expressed myself exactly in the same terms I had done
before, carefully avoiding the mention of any thing which might
awaken the jealousy of the Arabs.
The direct road to Youri is only five days’ journey; but, on account
of the rebellious state of the country, it was necessary to take a
circuitous route of twelve days. Numbers of the principal people of
Sackatoo came to me, to advise me to give up the idea of going; all
alleging that the rains had already commenced at Youri, and that the
road was in the hands of their enemies. They repeated the same
tales to the servants who were to accompany me, and threw them all
into a panic at the prospect of so dangerous a journey.
March 23.—Very ill all day. I discovered that the Arabs were also
tampering with my servants. One of them, named Absalom, was
accosted to-day in the market by one of the merchants of that nation,
who told him, if ever he arrived at Youri, without meeting with
disasters by the way, the sultan there would assuredly sell him, and
that he would never be allowed to return.
March 24.—I felt much better. The sultan sent for me this
forenoon about the guide who was to accompany me to Youri. One
man had already refused, and I had to tempt another with a promise
of 40,000 cowries, unknown to the sultan; who kindly took much
pains to impress upon me the necessity of my return within twenty-
six days, on account of the capricious character of the people of that
place. From every person here dissuading me from the attempt, I
had too good reason to fear that a regular plan was laid to obstruct
my further progress. Even El Wordee went so far as to say, that it
was contrary to the wishes of the sheikh that we should either go to
Youri or Nyffee, and complained sadly of being afflicted with a
dysentery, which very opportunely made its attack the instant I
expressed a wish to visit Youri; and, although I protested against his
accompanying me, I have no doubt he both practised on my
servants, and used his influence with the gadado to oppose my
departure. At last El Wordee, and Mahomed Sidi sheikh, a native of
Tuat, and fighee to the sultan, came to tell me, that no person would
venture to accompany me, from the road to Youri being infested with
Kafirs, and that it was impossible to travel in safety without an army. I
remained silent; for had I once begun to give vent to my feelings, I
might have committed myself. I thank God I had never once lost my
temper amid all these crosses and vexations, and in spite even of
this deathblow to all my hopes of reaching Youri. The whole tissue of
dangers, however, I believed to be a mere fabrication; for the Arabs,
having learned what the sultan said with respect to the English
opening a trade with his people by the way of the sea, and well
knowing how fatal this scheme would prove to their traffic in the
interior, probably now attempted to persuade both the sultan and the
gadado that the English would come and take the country from them:
by which insinuations they induced the sultan to embrace this
disingenuous expedient to disengage himself from his promise.
March 25.—Clear and warm. Early this morning I was sent for by
the sultan, and, although suffering from fever, I went immediately. He
was seated in an inner coozee, with only one eunuch in attendance.
The conversation again commenced concerning the projected trade
with England, when I repeated the same arguments. He inquired if
the King of England would give him a couple of guns, with
ammunition and some rockets? I assured him of His Majesty’s
compliance with his wishes, if he would consent to put down the
slave trade on the coast. I further pointed out to him that Sackatoo
was the best situate town in all Northern Africa for commerce,
without which a nation was nothing; that rich merchants make rich
kings; and that it was in the power of the King of England to make
him one of the greatest princes in Africa, when all the trade from the
east and west of that continent would centre in his dominions: at the
same time advising him strongly to have a port on the sea coast,
where he might have ships, and where his people would be taught
by the English the art of ship-building, unless he preferred to send
some of them to our settlements on the coast to learn to work as
carpenters or blacksmiths, where their religion would be respected,
and, after learning these trades from us, they would be enabled to
instruct their countrymen. By weighing these important
considerations in his mind, he would see that it was both his own
interest, and the interest of his people, to form a strict friendship with
the English; for when once he had ships, his people might trade to
every part of the world, and could even make the pilgrimage to
Mecca by a much safer route than at present by land, being able to
go there and return in six months; and, at the same time, bring with
them all the produce of the East.
March 26.—I was much better. Being Friday, the Mahommedan
Sabbath, a crowd of people from the country came to see me, after
being at the mosque, and the square in front of my house was
completely filled. I was sitting in the shade, on a mat spread on the
ground, and Mahomed El Wordee with me: both he and my servants
were in great fright at the increasing numbers of country people, and
El Wordee begged of me either to have my guns loaded, or to
threaten to fire among the multitude, if they did not go away; or else
to send a message to the gadado to have them dispersed. By way of
aggravating his alarm, I said to him, with provoking indifference, “Let
them look at me, and welcome; they are like all other country people,
and will do me no harm.” A number of boys squeezing through the
crowd, whenever they caught a glimpse of me, called out to their
companions, “Wishod en ila hullah ila hullah wahod Mohamoud wa
rhasoul illah, hada el Kaffir;” or more briefly, “ila el ullah Mohamoud
wa rhasoul illah, hada el Kaffir,”—“I bear witness there is no God but
one God, and Mahomet is his prophet; there is the Infidel,” and
immediately took to their heels. At last one of my servants stole
through the crowd and informed the gadado, who sent and dispersed
the people, to the great satisfaction of El Wordee; when I was
allowed to enjoy the remainder of the day undisturbed.
March 27.—Clear and warm. In the morning I was very ill with
ague, and at eleven the sultan sent for El Wordee and me, with a
request to bring my English saddle along with me. We were
conducted farther into the interior of his residence than I had ever
been before: the sultan was sitting reading in one corner of a square
tower: on showing him my English saddle, he examined it very
minutely, and said it was exactly like the ancient Arab saddle,
described in one of his books. It was a second-hand saddle which
we bought at Malta, and having often also served myself and my
servant for a pillow, I had it re-stuffed at Kano: on seeing the maker’s
card, “Laurie, Oxford-Street, London,” under the saddle lap, the
sultan, surmising perhaps that it was a charm, requested me to
explain its meaning; upon which I told him, that in England a
tradesman generally attached his name to the articles made by him,
which, if of superior quality, brought him into notice.
He again renewed the subject of the establishment of an English
consul and physician at Sackatoo, as well as of the likelihood of
receiving guns and rockets from England, which he now
recommended to be sent by the way of Tripoli and Bornou, under the
escort of El Wordee. To the latter part of this proposal I gave a direct
negative: I assured him, that unless he undertook to convey them to
Rakah at his own expense, they would not be sent at all, as the
expense and delay by the other route were obstacles of too serious
a nature to be repeated; besides, should the bashaw of Tripoli even
allow the guns to pass, the sheikh of Bornou, who was famed for
prudence and foresight, would forfeit all claim to that character, if he
did not seize them on reaching his territory. “Oh! no,” said the sultan,
“he will never do that; he is my friend.” I again expatiated on the
futility of this mistaken confidence, so opposite to sound policy. At
this discourse El Wordee seemed to be quite crest-fallen; and it
plainly appeared that this was his own device, in order that he might
be sent by the bashaw along with another English mission; and after
fleecing them throughout the route, have another opportunity here of
playing the same game over again. All my former suspicions were
now confirmed; and I attribute, in a great measure, to his
machinations the necessity of abandoning my journey to Youri. I
once more assured the sultan, that it was only by the sea-coast he
must expect to maintain an intercourse with England. He then
promised, that if I would wait till after the rains, he would send me to
the governor of Zeg Zeg, with orders to convey me to the coast.
Having heard of our newspapers, he desired me to send for them,
calling them the “Huber el dineah,” or “News of the world.” Being set
to read extracts from them, I happened to mention that thousands of
them were printed daily, when he exclaimed, “God is great; You are a
wonderful people.” He asked me about the Greeks, and inquired if
they were joined by any other Christians; the discussion of which
subject I contrived to evade. He then remarked, “You were at war
with Algiers, and killed a number of the Algerines.” I assured him that
they were a ferocious race, never at peace amongst themselves
(having even killed three of their own deys in one month), and
persisting in the practice of making slaves of Europeans, until
forcibly compelled by us to relinquish it.
In this conversation, he repeated “You are a strange people, the
strongest of all Christian nations: you have subjugated all India.” I
said, we merely afforded it our protection, and gave it good laws. I
mentioned, particularly, that many Mahometan states had put
themselves under our protection, knowing we were a people that
never interfered with the rights of others, whether civil or religious,
but caused the laws to be impartially administered among all sects
and persuasions. The King of England, I often told him, had, in fact,
as many Mahometan subjects as the Grand Signor; and I took care
to enlarge upon the favourite topic of several ships conveying the
inhabitants of India annually to Mecca.
The sultan again drew on the sand the course of the Quarra, with
the outline of the adjoining countries. I now requested him to order
one of his learned men to make me a chart of the river, on paper,
which he promised to have done. The sultan re-stated that Fundah is
the name of the place where the Quarra enters the sea, during the
rainy season; and that Tagra, a town on the sea-coast, where many
Felatahs reside, is governed by one of his subjects, a native of
Kashna, named Mohamed Mishnee. In the evening I saw him again,
when he told me that he was going on an expedition against some of
his enemies, but would not be away more than five days, desiring
me not to be uneasy during his absence, and assuring me that I
should want for nothing.
To announce to the people any public measure, such as the
present expedition, the city crier is sent round, who first proclaims,
“This is the will of the sultan;” the people replying “Whatever the
sultan does, is good; we will do it:” the crier stops in like manner at
the end of every sentence, when the people renew the same
assurances of submission. The crier always commences at the
sultan’s gate, from which he proceeds to the market-place. It was
proclaimed on this occasion, that all those who were to accompany
the expedition must provide themselves with eight days’ provisions.
At eight in the evening, the sultan left the capital with his army.
March 28.—This forenoon I had a visit from a famous Marauboot,
or holy man: he was accompanied by a great retinue, and repeated
the Fatha at his entrance, for the first time this ceremony had been
performed before me in Haussa. He began by asking me, abruptly,
to become a Moslem: I said, “God willing, I might; but I require much
previous instruction in religious matters before I can think of
changing my faith.” At this answer the bystanders began to laugh
immoderately, to the evident discomposure of the holy man’s gravity:
for my part, I could not discover any wit in what I said, although it
had the effect of relieving me from further impertinent questions on
religious subjects; and he soon left me, rather disconcerted at his
want of success. After sunset I had a visit from Ateeko, the brother of
the sultan, to whom I had sent a present of a scarlet jacket,
breeches, and bornouse: when he was seated, and the usual
compliments were over, I apologized on the score of ill health, and
the remoteness of his abode, for not having already paid him a visit.
He now told me he had a few things which belonged to the
Englishman who was at Musfia, with the late Boo Khaloom, but as
no person knew what they were, he would gladly sell them to me,
ordering his servant at the same time to produce a bundle he held
under his arm. The servant took from the bundle a shirt, two pair of
trowsers, and two pieces of parchment, used for sketching by Major
Denham. The only other articles, Ateeko said, were a trunk, a broken
sextant, and a watch; but the watch had been destroyed, as he
alleged, in their ignorant eagerness to examine its structure. He then
invited me to visit him the following morning, when we might fix the
price of what I wished to buy, to which I assented; and he bade me
good night; but, on re-considering the matter, I thought it prudent first
to consult the gadado, particularly as the sultan was absent. I began
to fear lest a bad construction might be put upon my visit to this
mean prince, who, on the death of his father, Bello the first, had
aspired to the throne, and had even had himself proclaimed sultan in
Sackatoo; from the mere circumstance of his brother Bello, the
present sultan, having expressed the intention, during his father’s
lifetime, of resigning the splendour of sovereignty for the tranquillity
of a learned and holy life. Ateeko even had the audacity to enter his
brother’s house, preceded by drums and trumpets; and when Bello
inquired the cause of the tumult, he received the first intimation of his
brother’s perfidy, in the answer “The sultan Ateeko is come.” Bello,
nowise disconcerted, immediately ordered the usurper into his
presence, when Ateeko pleaded, in vindication of his conduct, his
brother’s proposed disinclination to reign; to which the sultan only
deigned to reply, “Go and take off these trappings, or I will take off
your head:” Ateeko, with characteristic abjectness of spirit, began to
wring his hands, as if washing them in water, and called God and the
Prophet to witness that his motives were innocent and upright; since
which time, he has remained in the utmost obscurity.
March 29.—I visited the gadado very early, and informed him of
what had taken place last night. He told me by no means to go while
the sultan was absent, as my visit at this juncture might be regarded
with a very jealous eye by the people; who would not hesitate to
charge me with a plot to place prince Ateeko on the throne, by the
assistance of England. The gadado undisguisedly expressed his
contempt of Ateeko’s conduct, and assured me that it was entirely
without the sanction of the sultan.—In the afternoon I was again
seized with bilious vomiting.
March 30.—Cloudy and warm. El Wordee came to-day in the
name of the gadado, to ask me to sell him a silk tobe and some
other articles, although it was well known to him I had nothing of the
kind in my possession; and had it been otherwise, he was also
aware I would not sell them. I suspected that he was manœuvring in
some way for himself; and as soon as he was gone, I went to the
gadado, and asked him if he had sent any message to me, when it
turned out as I conjectured. The good old gadado said he felt quite
ashamed that any thing should have been asked in his name; and
shaking his head, he said he feared El Wordee was —— then
checking himself, he earnestly requested me to take no further
notice of it.
March 31.—I was confined to the house all day with ague. During
the time I had been in Sackatoo, I had, at the recommendation of
both the sultan and gadado, ridden out every morning for the benefit
of my health; but instead of choosing the high grounds, I had
generally taken my rides by the banks of the river, where there were
many stagnant pools of water, and the land was low and swampy. To
this I attributed my ague. The Arabs are likewise much afflicted with
it at this season of the year. With the gadado’s advice, I took my
morning rides in future on the high grounds.
April 1.—Morning cool and clear. I discovered that one of my bags
of cowries had been cut open; and having good reason to suspect
my servant Absalom of the theft, as he was known to have made a
number of extravagant presents to one of the gadado’s female
slaves, of whom he was passionately enamoured, I was obliged to
dismiss him my service, although both a smart and a brave fellow,
uniting at once in his person the important functions of barber and
butler.
April 4.—Cool and clear. My ague had left me. In the evening the
sultan returned to town.
April 5.—This morning Hadje Ali Boo Khaloom arrived from Kano.
Although he left the town of Quarra with a large kafila, consisting of a
thousand people, and protected by an escort of fifty horsemen, yet
they were attacked between the lake of Gondamee and the wells of
Kamoon, by the people of Goober and Zanfra, who after killing one
shreef, two Arabs of Tripoli, and seventeen Felatahs, and taking the
negroes prisoners, captured all the baggage except that of Hadje Ali.
He fortunately escaped with his camels, though less by his own
bravery than through the address of one of his slaves, who kept
cheering up his master’s spirits, and urging the camels to their
utmost speed, until they completely outstripped their pursuers. The
shreef who was killed left two young children, to whom I sent ten
dollars, by way of encouraging others to contribute to their relief.—In
the afternoon I paid my respects to the sultan, on his return from the
army. Hadje Ali Boo Khaloom accompanied me; but the sultan did
not deign to look towards the place where he sat, although he was
extremely kind to me, inquiring how I did, and if any thing had
happened in his absence.
A slave belonging to Mahomed Moode, the gadado’s brother,
whose duty it was to run with his spears by his horse’s side, had
feigned lameness, to be excused attending his master. For this
offence his legs were heavily shackled, in which miserable plight he
often contrived to crawl to the square before my door, and at length
begged me to intercede with his master for his release. In the
evening, when his master came as usual to see me, I asked him to
pardon the slave, who was immediately sent for, and his fetters
taken off. It is but justice to say, his master appeared as grateful to
me for affording him the opportunity of liberating his slave, as if I had
done him a personal favour. The mode of punishing slaves in
Sackatoo is by putting them in irons, and throwing them into a
dungeon under the common prison of the city. The dungeon is
reported to be extremely filthy and abominable. Here they remain
without any food, but what is gratuitously supplied by their fellow
slaves, until their master releases them. This punishment is much
dreaded, and its duration depends entirely on the caprice of the
master.
April 6.—Clear and cool.
April 7.—Having obtained the permission of the gadado to
purchase from Ateeko the sorry remains of Major Denham’s
baggage, I went early this morning with El Wordee to the prince’s
house, which is situate at the west end of the town. After waiting
some time in the porch of a square tower, we were introduced into
an inner coozee hung round with blue and yellow silk, in sharp
pointed festoons, not unlike gothic arches. Ateeko soon made his
appearance, and after a few compliments, we proceeded to
business. He brought out a damaged leathern trunk, with two or
three shirts and other articles of dress, much the worse for wear, and
the sextant and parchment already mentioned. The sextant was
completely demolished, the whole of the glasses being taken out, or
where they could not unscrew them, broken off the frame, which
remained a mere skeleton. He seemed to fancy that the sextant was
gold, in which I soon undeceived him; and selecting it with the
parchment and one or two flannel waistcoats and towels, likely to be
useful to Major Denham, I offered him 5000 cowries, at which he
appeared much surprised and mortified. El Wordee whispered in my
ear,—“Remember he is a prince, and not a merchant.” I said, loud
enough for his highness to hear, “Remember that when a prince
turns merchant, he must expect no more than another man; and as
that is the value of the articles, it is a matter of indifference to me
whether I buy them or not.” Ateeko frequently repeated his belief of
the sextant being gold; but at length the bargain seemed to be
concluded, and I requested him to send a slave to my house with the
articles I had picked out, to whom I would pay the money. The slave,
however, was recalled before he got half way, and his suspicious
master took back the sextant frame, in dread of being overreached
by me in its value, which I did not fail to deduct from the price agreed
on.
The prince’s residence, like those of other great men in this
country, is within a large quadrangular enclosure, surrounded by a
high clay wall, with a high tower at the entrance, in which some of
the slaves or body-guard lounge during the day, and sleep at night.
The enclosure is occupied by coozees, some of them in a very
ruinous condition. He told me that he possessed a great number of
slaves; and I saw many females about his person, most of them very
beautiful. He also stated, that he kept two hundred civet cats, two of
which he showed me. These animals were extremely savage, and
were confined in separate wooden cages. They were about four feet
long, from the nose to the tip of the tail; and with the exception of a
greater length of body and a longer tail, they very much resembled
diminutive hyenas. They are fed with pounded Guinea corn, and
dried fish made into balls. The civet is scraped off with a kind of
muscle shell every other morning, the animal being forced into a
corner of the cage, and its head held down with a stick during the
operation. The prince offered to sell any number of them I might wish
to have; but they did not appear to be desirable travelling
companions. Ateeko is a little spare man, with a full face, of monkey-
like expression. He speaks in a slow and subdued tone of voice; and
the Felatahs acknowledge him to be extremely brave, but at the
same time avaricious and cruel. “Were he sultan,” say they, “heads
would fly about in Soudan.”
After taking leave of the prince, we rode by appointment to view a
new mosque, which was building at the expense of the gadado, not
far distant from Ateeko’s house. Like all mosques, it was of a
quadrangular form, the sides facing the four cardinal points, and
about 800 feet in length. On the eastern side there were two doors.
The western entrance had a small square apartment on the right
hand in entering, where the people perform their ablutions before
prayers. The roof of the mosque was perfectly flat, and formed of
joists laid from wall to wall, the interstices being filled up with slender
spars placed obliquely from joist to joist, and the whole covered
outside with a thick stratum of indurated clay. The roof rested on
arches, which were supported by seven rows of pillars, seven in
each row. The pillars were of wood, plastered over with clay, and
highly ornamented. On the south side of the body of the building
there was a small recess appropriated solely to the sultan’s use.
Some workmen were employed in ornamenting the pillars, others in
completing the roof; and all appeared particularly busy, from the
circumstance of the gadado himself being here to receive me. The
gadado was very inquisitive to know my opinion, every two or three
minutes asking me what I thought of the building. The master builder,
a shrewd looking little man, continually laughing, was seated in a
position whence he could conveniently overlook all the workmen. He
informed me he was a native of Zeg Zeg, and that his father having
been in Egypt, had there acquired a smattering of Moorish
architecture, and had left him at his death all his papers, from which
he derived his only architectural knowledge. He was particularly
solicitous to possess a Gunter’s scale, which I afterwards sent to the
sultan.
April 8.—Clear and cool. I was confined to the house all day with
ague. Hadje Ali Boo Khaloom, who has paid me two or three visits,
which I never return, sent me half a sheep, and accompanied the
present with great offers of his services, of which I took no notice,
but ordered the present to be given to the poor. I always treated this
man with civility; but took good care never to follow any of his
suggestions, or to allow myself the smallest freedom of conversation
before him.
A number of poor children came to ask alms every morning, to
whom I was in the habit of giving two or three cowries a piece. Their
cry was, “Allah attik jinne,” or “God give you paradise;” a style of
begging that a kafir like me could not withstand; and when almost all
Africa doomed me to eternal perdition, I considered it obtaining their
suffrages at a cheap rate. Amongst the older beggars, there was
one, a native of Bornou, who had once been governor of a town
called Sockwa near Katagum, and had come to Sackatoo in
consequence of having made certain complaints against Duncowa,
which being on investigation found to be untrue, he had been
degraded. He was said to be rich; but in order to save his wealth,
now feigned madness. Every night after sunset, he used to sing
extempore before the gadado’s door; and I was frequently the
subject of his songs, particularly if I had given him any thing in the
course of the day. He generally set the people around him in a roar
of laughter.
April 9.—This morning I paid the gadado a visit, and found him
alone, reading an Arabic book, one of a small collection he
possessed. “Abdullah,” said he, “I had a dream last night, and am
perusing this book to find out what it meant. Do you believe in such
things?” “No, my lord gadado; I consider books of dreams to be full
of idle conceits. God gives a man wisdom to guide his conduct, while
dreams are occasioned by the accidental circumstances of sleeping
with the head low, excess of food, or uneasiness of mind.”
“Abdullah,” he replied, smiling, “this book tells me differently.” He
then mentioned, that in a few days the sultan was going on another
expedition, and wished him to join it, but that he preferred remaining,

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Chapter 2 Constitutional Limits on Criminal Law 38

Chapter 3 the Criminal act: the First principle of Criminal Liability 94

Chapter 4 the General principles of Criminal Liability: Mens Rea,

Chapter 5 defenses to Criminal Liability i: Justifications 162

Chapter 6 defenses to Criminal Liability ii: excuses 204

Chapter 7 parties to Crime and Vicarious Liability 242

Chapter 8 inchoate Crimes 270

Chapter 9 Crimes against persons i: Murder and Manslaughter 320

Chapter 10 Crimes against persons ii: Sex offenses, Bodily injury,

Chapter 11 Crimes against property 430

Chapter 12 Crimes against public order and Morals 484

Chapter 13 Crimes against the State 518

About the Author iii Chapter 2

The “Voluntary” act Requirement 99 Proving Defenses 164

CASE: State v. Fleck (2012) 131 “Choice of Evils” 192

Subjective entrapment Test 230 Voluntary Abandonment 294

CASE: People v. O’Neil (1990) 350 Rape mens Rea 403

Criminal Mischief mens Rea 458 history of Victimless Crimes 503

ELEMENTS OF MATERIAL SUPPORT TO TERRORISTS

Actus Reus Mens Rea Circumstance Criminal Conduct

Changes to the twelfth edition

Chapter 1, Criminal Law and Punishment in U.S. Society: An Overview

Chapter 2, Constitutional Limits on Criminal Law

Chapter 3, The Criminal Act: The First Principle of Criminal Liability

Chapter 4, The General Principles of Criminal Liability: Mens Rea,

Chapter 5, Defenses to Criminal Liability I: Justifications

• Criminal Law in Focus

Chapter 6, Defenses to Criminal Liability II: Excuses

Chapter 7, Parties to Crime and Vicarious Liability

Chapter 8, Inchoate Crimes

Chapter 9, Crimes Against Persons I: Murder and Manslaughter

Chapter 11, Crimes Against Property

Chapter 12, Crimes Against Public Order and Morals

Chapter 13, Crimes Against the State

resources for Students

provides interoperability with major Learning Management Systems (LMS) via

2 To understand the differ-

Did he “intend” to cause bodily harm?

CRIMINAL LAW IN U.S. SOCIETY

severe punishments to the penal code, criminalizing, recriminalizing, and overcrimi-

Table 1.1 Selected Crimes and arrest Statistics, 2013

Source: FBI Uniform Crime Report 2013 (Sept.), Table 29.

ArresTs 2013 ◂ Figure 1.1

Source: FBI Uniform Crime Report 2013 (Sept.), Table 29.

The Core Felonies LO1

LO1 HiStOry OF tHe POLice POwer

POLice POwer And PubLic mOrALS LO1

CRIMES AND NoNCRIMINAL LEGAL wRoNGS

TAbLE 1.2 Crimes and Torts: Similarities and Differences

SoURCES oF CRIMINAL LAw

State Criminal Codes LO4

LO4 The Model Penal Code (MPC)

Actus Reus Mens Rea Circumstance Criminal Conduct

ELEMENTS OF FIRST-DEGREE MURDER (SPECIFIC INTENT)