Chapter 1

Basic Principles of the Criminal Law

INTRODUCTION
When law students begin their study of the criminal law, they often
expect to deal with search and seizure issues, illegal arrests, questionable
interrogations, tainted confessions, police brutality, mass incarceration,
and the like. In other words, they imagine a course packed with issues
involving police and prisons. At most law schools, however, the rules that
regulate the behavior of police officers are covered in the class on Criminal
Procedure, while the rules regulating jails and prisons are covered in
Prison Law. Criminal law concerns a different, even more basic topic:
What, in our society, makes a “crime,” and why?
More precisely, substantive criminal law (hereafter simply criminal
law) answers these sorts of questions: How do various jurisdictions define
their criminal offenses? What are the basic elements common to every
crime in the Anglo-American tradition? What does the prosecution have to
prove in order for the fact finder to find a person guilty? What are the
elements of particular crimes, like murder, rape, or burglary? What
distinguishes first degree from second degree murder?
Criminal law also addresses questions such as what level of
punishment does the person who has committed a crime deserve? The rules
of criminal law tell us what a person must do to be considered guilty of a
crime, but not everyone who has technically violated a statute will be
treated in the same way. Sometimes the issue is whether a person ought to
be considered capable of committing a crime at all. For example, the
insanity defense is based on the theory that people who commit crimes
because they are insane lack the capacity to make moral choices, a
prerequisite for criminal punishment. Other times, assuming the person is
capable of moral choice, the issue is whether and to what extent that choice
reflects values and beliefs shared by those in our society, rendering the
person’s actions excusable or justifiable. For example, a person who kills in
the “heat of passion” is considered less blameworthy than a person who
kills in cold blood. A person who kills in self-defense may not be considered
blameworthy at all.
As the preceding paragraph suggests, criminal law is inextricably
intertwined with issues of morality. This being the case, answers to the

1
2 Basic Principles of the Criminal Law Ch. 1

questions it asks may vary from person to person. Thus, criminal law in
part engages one’s moral intuitions, and criminal law is often taught as a
branch of moral philosophy.
But people do not develop their moral intuitions in a vacuum. We grow
up in a culture, socialized by family, friends, schools, and mass media,
accepting some broad beliefs and rejecting others. Like any other culture,
Anglo-American culture includes widely-held ideas about responsibility,
blame, and punishment, and these ideas have shaped our criminal law. In
this book, we approach criminal law as a system of cultural meaning, and
Anglo-American criminal law as a reflection of Anglo-American moral
culture.
This is where things get really interesting, for no culture is monolithic.
First, cultural meanings change over time. Second, the same culture may
contain conflicting beliefs and values. Third, cultures often contain
subcultures with very different traditions and perspectives, and this is
certainly true of the United States. Some of these subcultures exist because
the United States is a multicultural nation, composed of indigenous peoples
and immigrants (voluntary and involuntary) from many different
countries. Other subcultures have emerged through the long-term effects
of social inequality. Men and women, for example, are sometimes said to
live in different cultures. When there is no cultural consensus on moral
issues, whose view gets written into the law? Should the trier of fact—
whether a judge or a jury—be educated about different cultural
perspectives on a person’s behavior? When does a legal rule or doctrine
become so lacking in support from contemporary moral culture that it
should be abolished or radically altered? By what means may such a rule
or doctrine be changed to reflect a new moral consensus? What is the proper
relationship between culture and morality? These are some of the
questions raised by the study of criminal law.
In addition to being a system of cultural meaning, criminal law is part
of a legal system, and this too raises interesting and important issues.
Criminal law reflects popular morality, but is also independent of morality.
Not everything that is a moral duty is necessarily a legal duty. To what
extent should criminal law reflect the minimum standards of behavior
necessary to a functioning society, and to what extent should it push people
to be better to one another than they might otherwise choose? What is the
appropriate role for each of the different actors that shape and enforce
substantive criminal law—judges, juries, trial courts, appellate courts, and
legislatures? What discretion is or should be available to each institutional
actor to apply or interpret the law the way she or he sees fit? How is that
discretion limited by constitutional rules, by rules of interpretation, or by
the actions of other actors within the criminal justice system?
Sec. A Sources of Criminal Law 3

The study of criminal law, then, is both the study of what is and what
ought to be. You will learn what the rules are and also have the chance to
examine critically whether those rules serve the goals of reflecting a
general cultural and moral consensus. You will have the chance to ponder
whether the rules strike an appropriate balance between how we would
like people to act in a perfect world and what we can reasonably expect of
them, and whether they facilitate the efficient and just operation of a
necessarily imperfect legal system. This is not the flashy stuff of Law &
Order, but it is just as pressing.

The Aims of the Criminal Law

Henry M. Hart, Jr.
23 Law & Contemp. Probs. 401 (1958)

* * * What do we mean by “crime” and “criminal”? Or, put more

accurately, what should we understand to be “the method of the criminal
law,” the use of which is in question? This latter way of formulating the
preliminary inquiry is more accurate, because it pictures the criminal law
as a process, a way of doing something, which is what it is. * * *
What then are the characteristics of this method?
1. The method operates by means of a series of directions, or
commands, formulated in general terms, telling people what they must or
must not do. Mostly, the commands of the criminal law are “must-nots,” or
prohibitions, which can be satisfied by inaction. “Do not murder, rape, or
rob.” But some of them are “musts,” or affirmative requirements, which can
be satisfied only by taking a specifically, or relatively specifically, described
kind of action. “Support your wife and children,” and “File your income tax
return.”
2. The commands are taken as valid and binding upon all those who
fall within their terms when the time comes for complying with them,
whether or not they have been formulated in advance in a single
authoritative set of words. They speak to members of the community, in
other words, in the community’s behalf, with all the power and prestige of
the community behind them.
3. The commands are subject to one or more sanctions for
disobedience which the community is prepared to enforce.
Thus far, it will be noticed, nothing has been said about the criminal
law which is not true also of a large part of the noncriminal, or civil, law.
The law of torts, the law of contracts, and almost every other branch of
private law that can be mentioned operate, too, with general directions
prohibiting or requiring described types of conduct, and the community’s
tribunals enforce these commands. What, then, is distinctive about the
method of the criminal law?
4 Basic Principles of the Criminal Law Ch. 1

Can crimes be distinguished from civil wrongs on the ground that they
constitute injuries to society generally which society is interested in
preventing? The difficulty is that society is interested also in the due
fulfillment of contracts and the avoidance of traffic accidents and most of
the other stuff of civil litigation. The civil law is framed and interpreted
and enforced with a constant eye to these social interests. Does the
distinction lie in the fact that proceedings to enforce the criminal law are
instituted by public officials rather than private complainants? The
difficulty is that public officers may also bring many kinds of “civil”
enforcement actions—for an injunction, for the recovery of a “civil" penalty,
or even for the detention of the defendant by public authority. Is the
distinction, then, in the peculiar character of what is done to people who
are adjudged to be criminals? The difficulty is that, with the possible
exception of death, exactly the same kinds of unpleasant consequences,
objectively considered, can be and are visited upon unsuccessful defendants
in civil proceedings. * * *
4. What distinguishes a criminal from a civil sanction and all that
distinguishes it, it is ventured, is the judgment of community
condemnation which accompanies and justifies its imposition. As Professor
Gardner wrote not long ago, in a distinct but cognate connection:
The essence of punishment for moral delinquency lies in the
criminal conviction itself. One may lose more money on the stock
market than in a court-room; a prisoner of war camp may well
provide a harsher environment than a state prison; death on the
field of battle has the same physical characteristics as death by
sentence of law. It is the expression of the community’s hatred,
fear, or contempt for the convict which alone characterizes
physical hardship as punishment.
If this is what a “criminal” penalty is, then we can say readily enough
what a “crime” is. It 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 a
legislature chooses to attach a “criminal” penalty. It is conduct which, if
duly shown to have taken place, will incur a formal and solemn
pronouncement of the moral condemnation of the community. * * *
At least under existing law, there is a vital difference between t e
situation of a patient who has been committed to a mental hospital and t e
situation of an inmate of a state penitentiary. The core of the difference is
precisely that the patient has not incurred the moral condemnation of his
community, whereas the convict has.
Sec. A Sources of Criminal Law 5

A. SOURCES OF CRIMINAL LAW

Law students often find criminal law confusing because there is no
single criminal code that applies to all jurisdictions. Each of the fifty states,
the District of Columbia, and the federal government has its own criminal
code (also known as a penal code). The United States military, in addition,
has its own criminal code. Fortunately, even though criminal provisions
differ from jurisdiction to jurisdiction, there are certain basic principles of
criminal law which are sufficiently common to most jurisdictions to enable
generalizations about the basic elements of most crimes and the basic
elements of most defenses. In addition, all the criminal laws of every
jurisdiction of the United States are subject to the same constraints
imposed by the United States Constitution.
Because the United States began as colonies of England, all criminal
codes in the United States broadly recognize the crimes and defenses
developed by English judges over many centuries and then imported here.
However, the definition of these crimes and defenses, and how penal codes
should be read and interpreted, depends on whether one is in a jurisdiction
in which the code principally follows the common law or one in which the
code has incorporated reforms taken from the Model Penal Code. We can
speak of these as common law jurisdictions and Model Penal Code
jurisdictions.
In common law jurisdictions, judges continue to play an important role
in shaping the criminal law. Courts in these jurisdictions must interpret
statutes that are often very old and that may incorporate archaic language
and concepts. Judges in common law jurisdictions both definitively
interpret the meaning of criminal statutes and occasionally go beyond the
statutes to announce new rules of their own. This book contains many
excerpts from appellate court opinions in order to articulate and examine
criminal law in common law jurisdictions.
Other jurisdictions have recently sought to update and reform their
criminal codes. Many of these reform efforts have been influenced by the
Model Penal Code (hereafter MPC). The MPC is a product of the American
Law Institute (ALI), an organization composed of judges, lawyers, and law
professors. When the ALI was organized, it saw itself as a body of experts
that would try to influence state law by writing “restatements” of various
subject matter areas, like Torts and Contracts. These restatements
purported to simply set forth the common law of all the states in a clear,
organized, and comprehensive way, but in fact they often incorporated
significant reforms. The ALI hoped that the states would change their own
laws to conform with the restatements, and many of these restatements
have been highly influential with state legislatures.
When it came to the criminal law, the ALI concluded that the statutory
and case law of the various states was such a hopelessly confusing and
 Basic Principles of the Criminal Law Ch. 1
6
obsolete mishmash that “restatement” would be the wrong word. Instead,
the ALI drafted its own model criminal code from scratch. Drafting of the
MPC began in 1952, and in 1962, after thirteen tentative drafts with
accompanying explanatory Commentaries, the ALI approved and
published its Proposed Official Draft of the MPC. Although no state has
adopted the MPC in its entirety, between 1962 and 1984, thirty-four states
enacted completely new criminal codes, influenced to some extent by the
MPC. You will find excerpts from the MPC in the Appendix to this
casebook.
In both common law and MPC jurisdictions, the basic contours of the
relevant law will usually be found in a statute. A good attorney will start
by looking at the applicable statute, but should not stop there. A good
attorney will also research how the judges in the jurisdiction have
interpreted the statute. Thus, in both common law and MPC jurisdictions,
understanding the case law (the judicial opinions) interpreting the criminal
statutes is key to understanding what the law is.
Moreover, in both common law and MPC jurisdictions, criminal law is
influenced by federal law® The most important source of federal law is the
United States Constitution. With the exception of treason, the Constitution
does not specifically set forth any crimes or defenses. However, some
provisions of the Constitution set limitations on the way government actors
can punish criminal behavior. We will examine some of these limitations
in Chapter 2.

B. JUSTIFICATIONS FOR PUNISHMENT

The arguments traditionally used to justify criminal punishment come
from moral philosophy. These moral justifications for punishment are not
only discussed by theorists, but are frequently used by policymakers in
public debate and by attorneys and judges in legal proceedings to evaluate
the efficiency and fairness of the criminal justice system. Legislators and
judges use concepts taken from moral philosophy when writing or revising
criminal statutes, when sentencing convicted criminals, and when making
policy’ arguments about the fairness of a law. We therefore need to briefly
examine these philosophical principles in order to understand the
traditional justifications for punishment.
Traditional moral reasoning is usually divided into two types:
consequentialist and nonconsequentialist. The consequentialist believes
that actions are morally right if, and only if, they result in desirable

• Congress has no general constitutional authority to make criminal law, so the principal
authority for enacting criminal statutes lies with the states, rather than the federal government.
However, Congress does enact many criminal statutes (including, for example, drug laws) by virtue
of its power over interstate commerce. Congress also has the authority to make criminal law for
the District of Columbia, for the military, for violations of the laws of war and nations, and for
territories under its jurisdiction, such as Indian reservations.
Sec. B Justifications for Punishment 7

consequences. The primary consequentialist theory of punishment is called

utilitarianism. Utilitarians tend to look forward at the predictable effects
of punishment on the offender and/or society. The nonconsequentialist, in
contrast, believes that actions are morally right or wrong in themselves,
regardless of the consequences. The primary nonconsequentialist theory of
punishment is called retributivism. Retributivists typically look backwards
at the harm caused by the crime and attempt to calibrate the punishment
to the crime. Debates over criminal law and policy usually involve a
mixture of utilitarian and retributivist arguments.
The first excerpt in this section, a famous English case, provides fodder
for a rich discussion regarding the basic theories of punishment. The
second excerpt represents a contemporary American use of the traditional
justifications for punishment in a sentencing decision. The third excerpt
looks at the traditional justifications for punishment as they play out in a
contemporary American prison.

Regina v. Dudley and Stephens

Queen’s Bench Division
14 Q.B.D. 273 (1884)

* * * The two prisoners, Thomas Dudley and Edwin Stephens, were

indicted for the wilful murder of Richard Parker on July 25, 1884, on the
high seas, within the jurisdiction of the Admiralty of England. They were
tried at the winter assizes at Exeter on Nov. 6, 1884, before Huddleston,
B., when at the suggestion of the learned judge, the jury returned a special
verdict, setting out the facts, and referred the matter to the Divisional
Court for its decision.
The special verdict was as follows:
The jurors, upon their oath, say and find that, on July 5, 1884, the
prisoners, with one Brooks, all able-bodied English seamen, and the
deceased, also an English boy, between seventeen and eighteen years of
age, the crew of an English yacht, were cast away in a storm on the high
seas, 1,600 miles from the Cape of Good Hope, and were compelled to put
into an open boat. That in this boat they had no supply of water and no
supply of food, except two 1 lb. tins of turnips, and for three days they had
nothing else to subsist upon. That on the fourth day they caught a small
turtle, upon which they subsisted for a few days, and this was the only food
they had up to the twentieth day, when the act now in question was
committed. That on the twelfth day the remains of the turtle were entirely
consumed, and for the next eight days they had nothing to eat. That they
had no fresh water, except such rain as they from time to time caught in
their oilskin capes. That the boat was drifting on the ocean, and it was
probably more than a thousand miles away from land. That on the
eighteenth day, when they had been seven days without food and five
 Basic Principles of the Criminal Law CH.l
8
without water, the prisoners spoke to Brooks as to what should be done if
no succour came, and suggested that someone should be sacrificed to save
the rest, but Brooks dissented, and the boy to whom they were understood
to refer was not consulted. That on July 24, the day before the act now in
question, the prisoner Dudley proposed to Stephens and to Brooks that lots
should be cast who should be put to death to save the rest, but Brooks
refused to consent, and it was not put to the boy, and in point of fact there
was no drawing of lots. That on that day the prisoners spoke of their having
families, and suggested that it would be better to kill the boy that their
lives should be saved, and the prisoner Dudley proposed that if there was
no vessel in sight by the morrow morning the boy should be killed. That
next day, July 25, no vessel appearing, Dudley told Brooks that he had
better go and have a sleep, and made signs to Stephens and Brooks that
the boy had better be killed. The prisoner Stephens agreed to the act, but
Brooks dissented from it. That the boy was then lying at the bottom of the
boat quite helpless, and extremely weakened by famine and by drinking
sea water, and unable to make any resistance, nor did he ever assent to his
being killed. The prisoner, Captain Dudley, offered a prayer, asking
forgiveness for them all if either of them should be tempted to commit a
rash act, and that then- souls might be saved. That the prisoner Dudley,
with the assent of the prisoner Stephens, went to the boy, and telling him
that his time was come, put a knife into his throat and killed him then and
there. That the three men fed upon the body and blood of the boy for four
days. That on the fourth day after the act had been committed, the boat
was picked up by a passing vessel, and the prisoners were rescued still
alive, but in the lowest state of prostration. That they were carried to the
port of Falmouth, and committed for trial at Exeter. That, if the men had
not fed upon the body of the boy, they would probably not have survived to
be so picked up and rescued, but would within the four days have died of
famine That the boy, being in a much weaker condition, was likely to have
died before them. That at the time of the act in question there was no sail
in sight, nor any reasonable prospect of relief. That under the
circumstances there appeared to the prisoners every probability that,
un ess t ey ten ed, or very soon fed, upon the boy or one of themselves,
ey won le o starvation. That there was no appreciable chance of
saving life except by killing someone for the others to eat. That assuming
any necessity to kill anybody, there was no greater necessity for killing the
boy than any of the three men.
and ™Ut Yhether J* e kllll.ng of Parker bY Dudley and Stephens] be felony
and murder or not the said jurors so as aforesaid chosen, tried, and sworn,
are ignorant, and pray the advice of the court thereupon.
Dec. 9,1884.
COLERIDGE,DT- ]Udgtnent Of the court was delivered by LORD
Sec. B Justifications for Punishment 9

The two prisoners, Thomas Dudley and Edwin Stephens, were indicted
for the murder of Richard Parker on the high seas on July 25 in the present
year. They were tried before Huddleston, B., at Exeter on Nov. 6, and,
under the direction of my learned brother, the jury returned a special
verdict, the legal effect of which has been argued before us, and on which
we are now to pronounce judgment. From the facts, stated with the cold
precision of a special verdict, it appears sufficiently that the prisoners were
subject to terrible temptation and to sufferings which might break down
the bodily power of the strongest man, and try the conscience of the best.
Other details yet more harrowing, facts still more loathsome and appalling,
were presented to the jury, and are to be found recorded in my learned
brother’s notes. But nevertheless this is clear, that the prisoners put to
death a weak and unoffending boy upon the chance of preserving their own
lives by feeding upon his flesh and blood after he was killed, and with a
certainty of depriving him of any possible chance of survival. The verdict
finds in terms that: “if the men had not fed upon the body of the boy, they
would probably not have survived . . .” and that “the boy, being in a much
weaker condition, was likely to have died before them.” They might
possibly have been picked up next day by a passing ship; they might
possibly not have been picked up at all; in either case it is obvious that the
killing of the boy would have been an unnecessary and profitless act. It is
found by the verdict that the boy was incapable of resistance, and, in fact,
made none; and it is not even suggested that his death was due to any
violence on his part attempted against, or even so much as feared by, them
who killed him. Under these circumstances the jury say they are ignorant
whether those who killed him were guilty of murder, and have referred it
to this court to say what [are] the legal consequences which follow from the
facts which they have found.
[HIS LORDSHIP dealt with objections taken by counsel for the
prisoners which do not call for report, and continued:] There remains to be
considered the real question in the case—whether killing, under the
circumstances set forth in the verdict, be or be not murder. * * *
First, it is said that it follows, from various definitions of murder in
books of authority—which definitions imply, if they do not state, the
doctrine—that, in order to save your own life you may lawfully take away
the life of another, when that other is neither attempting nor threatening
yours, nor is guilty of any illegal act whatever towards you or anyone else.
But, if these definitions be looked at, they will not be found to sustain the
contention. * * * [I]t is clear that Bracton is speaking of necessity in the
ordinary sense, the repelling by violence—violence justified so far as it was
necessary for the object—any illegal violence used towards oneself. * * *
Lord Hale regarded the private necessity which justified, and alone
justified, the taking the life of another for the safeguard of one own’s to be
what is commonly called self-defence. . . . Lord Hale himself has made it
 Basic Principles of the Criminal Law Ch. 1
10
clear, for, in the chapter in which he deals with the exemption created by
compulsion or necessity, he thus expresses himself (1 Hale, P.C. 51):
If a man be desperately assaulted, and in peril of death, and
cannot otherwise escape, unless to satisfy his assailant’s fury he
will kill an innocent person then present, the fear and actual force
will not acquit him of the crime and punishment of murder if he
commit the act, for he ought rather to die himself than to kill an
innocent; but if he cannot otherwise save his own life, the law
permits him in his own defence to kill the assailant, for, by the
violence of the assault and the offence committed upon him by the
assailant himself, the law of nature and necessity hath made him
his own protector. * * *
Is there, then, any authority for the proposition which has been
presented to us? Decided cases there are none. * * *
Except for the purpose of testing how far the conservation of a man s
own life is in all cases and under all circumstances an absolute,
unqualified, and paramount duty, we exclude from our consideration all
the incidents of war. We are dealing with a case of private homicide, not
one imposed upon men in the service of their Sovereign or in the defence of
their country. It is admitted that deliberate killing of this unoffending and
unresisting boy was clearly murder, unless the killing can be justified by
some well-recognised excuse admitted by the law. It is further admitted
that there was in this case no such excuse, unless the killing was justified
by what has been called necessity. But the temptation to the act which
existed here was not what the law has ever called necessity. Nor is this to
be regretted. Though law and morality are not the same, and though many
things may be immoral which are not necessarily illegal, yet the absolute
divorce of law from morality would be of fatal consequence, and such
divorce would follow if the temptation to murder in this case were to be
held by law an absolute defence of it. It is not so.
To preserve one’s life is generally speaking, a duty, but it may be the
plainest and the highest duty to sacrifice it. War is full of instances in
which it is a man’s duty not to live, but to die. The duty, in case of
shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers
to women and children * * *—these duties impose on men the moral
necessity, not of the preservation, but of the sacrifice, of their lives for
others, from which in no country-least of all it is to be hoped in England—
will men ever shrink, as indeed they have not shrunk. It is not correct,
therefore, to say that there is any absolute and unqualified necessity to
preserve one’s life. * * *
It would be a very easy and cheap display of commonplace learning to
quote from Greek and Latin authors, from Horace, from Juvenal, from
Cicero, from Euripides, passage after passage, in which the duty of dying
Sec. B Justifications for Punishment 11

for others has been laid down in glowing and emphatic language as
resulting from the principles of heathen ethics; it is enough in a Christian
country to remind ourselves of the Great Example whom we profess to
follow. It is not needful to point out the awful danger of admitting the
principle which has been contended for. Who is to be the judge of this sort
of necessity? By what measure is the comparative value of lives to be
measured? Is it to be strength, or intellect, or what? It is plain that the
principle leaves to him who is to profit by it to determine the necessity
which will justify him in deliberately taking another’s life to save his own.
In this case the weakest, the youngest, the most unresisting was chosen.
Was it more necessary to kill him than one of the grown men? The answer
must be, No. * * *
There is no path safe for judges to tread but to ascertain the law to the
best of their ability, and to declare it according to their judgment, and if in
any case the law appears to be too severe on individuals, to leave it to the
Sovereign to exercise that prerogative of mercy which the Constitution has
entrusted to the hands fittest to dispense it. It must not be supposed that,
in refusing to admit temptation to be an excuse for crime, it is forgotten
how terrible the temptation was, how awful the suffering, how hard in such
trials to keep the judgment straight and the conduct pure. We are often
compelled to set up standards we cannot reach ourselves, and to lay down
rules which we could not ourselves satisfy. But a man has no right to
declare temptation to be an excuse, though he might himself have yielded
to it, nor allow compassion for the criminal to change or weaken in any
manner the legal definition of the crime. It is, therefore, our duty to declare
that the prisoners’ act in this case was wilful murder; that the facts as
stated in the verdict are no legal justification of the homicide; and to say
that, in our unanimous opinion, they are, upon this special verdict, guilty
of murder.
The Lord Chief Justice thereupon passed sentence of death in the
usual form."
Judgment for the Crown.

Note
Do you think the sentence of death was an appropriate punishment?
Consider four different theories of punishment: (1) deterrence, which can
either be general (punishment to deter others from committing the same or
similar offenses) or specific (punishment to deter the individual defendant from
committing the same crime in the future), (2) rehabilitation (reforming the

“ Apparently, a pardon had been arranged in advance, so even though Dudley and Stephens
were sentenced to death, they served only six months in prison. LEO KATZ, BAD ACTS AND GUILTY
MINDS: CONUNDRUMS of THE Criminal Law 25 (1987). Haunted by memories of what happened
on the dinghy, Stephens lost his mental faculties. Id. Dudley moved to Australia, became an opium
addict, and then died of the bubonic plague. Id.
12 Basic Principles of the Criminal Law ChJ.
defendant through vocational training, counseling, drug rehabilitation, etc.),
(3) incapacitation (incarceration to keep the defendant away from other
members of society), and (4) retribution (giving the defendant what he
deserves).

People v. Suitte
New York State Supreme Court, Appellate Division
455 N.Y.S.2d 675, 90 A.D.2d 80 (N.Y. App. Div. 1982)

Lazer, Justice Presiding.

The defendant has pleaded guilty to criminal possession of a weapon
in the fourth degree, a class A misdemeanor. The sentence we review
consists of 30 days of imprisonment and three years of probation, the jail
time to be a condition of and to run concurrently with the period of
probation. Execution of the sentence has been stayed pending this appeal.
***

When arrested in January, 1981, for unauthorized use of a motor

vehicle, based on what seems to have been a misunderstanding, James
Suitte was found to possess a loaded Sterling .25 calibre automatic pistol.
Although Mr. Suitte had registered the gun in North Carolina when he
acquired it there in 1973, he carried it unlicensed in this State for the seven
and one-half-year period preceding his arrest. College educated for three
years, Mr. Suitte is 46 years old, has been married for 25 years, and has
two children, aged 14 and 21 years. He has never before been convicted of
a crime. Although he admits he was aware of New York’s gun licensing
requirement, he claims that the gun was necessary for protection because
the tailor shop he operates is located in a high crime area of the Bronx.
The plea of guilty was a bargained one. Originally charged with the
class D felony of criminal possession of a weapon in the third degree, Mr.
Suitte was permitted to plead to the misdemeanor of possession in the
fourth degree. In imposing sentence under the new gun statute and its
mandatory one year imprisonment provision—publicized in the State as
the toughest gun law in the country”—the sentencing Judge found the
mandatory one year jail provision too severe. He noted, however, “the
Legislature, the community and indeed this Court [are] concerned with the
proliferation of guns and the possession of guns by individuals in the
community regardless of the reasons, and we have such a possession in
this case. He then exercrsed his discretion under the statute and imposed
a jail sentence of 30 days plus three years’ probation. The jail portion of the
sentence rs the focus of the appeal.
The new gun statute has substantially increased the penal sanctions
for possession and sale of illegal weapons. The major change from previous
law is the mandatory imposition of a prison sentence of at least one year
upon conviction of possession of a loaded weapon outside the home or place
Sec. b Justifications for Punishment 13

of business. The legislation contains additional procedures, however,

which, inter alia, permit imposition of a lesser sentence upon conviction of
possession in the fourth degree if “the court having regard to the nature
and circumstances of the crime and to the history and character of the
defendant, is of the opinion that such sentence would be unduly harsh.”
This mitigation inquiry relative to possession in the fourth degree is
limited to individuals who have not been convicted of either a felony or a
class A misdemeanor within the preceding five years. Other provisions of
the new law prohibit preindictment plea bargaining, restrict post-
indictinent plea bargaining and expedite the processing of licensing
requests.
The statute is an obvious expression of the State’s reaction to the
current avalanche of gun-related crimes. In approving the law, Governor
Carey proclaimed:
We must bring an end to the proliferation of illegal handguns in
New York and the intolerable assaults on law enforcement officers
and law-abiding citizens. We must let it be known that New York
has the toughest gun law in the country and that it will be strictly
enforced. We are determined to rid our streets of those who would
do violence to its citizens.
The Governor viewed the amended gun law as even more stringent
than that of Massachusetts, which had been considered the strictest in the
country. Mayor Koch termed the legislation “a significant first step in the
fight to remove illegal handguns from the streets of our city.”
Early returns on the law—later ones are not available—indicate that
applications for gun licenses have increased, fewer gun possession cases
have been reduced to misdemeanors, and sentences of incarceration have
been imposed in more instances than before the law. Slightly more than
half of the adults convicted of gun possession received at least the
mandatory one-year minimum.
Whatever its ultimate success in a nation bedeviled by handguns,
there can be no doubt that the State’s 1980 legislation represents a vivid
manifestation of public policy intended to make illegal possession of guns
a serious criminal offense accompanied by the strong prospect of
punishment by penal servitude. While we note our colleague’s negative
view of the wisdom of the statute, it is not for the court to pass on the
wisdom of the Legislature, for that body “has latitude in determining which
ills of society require criminal sanctions, and in imposing, as it reasonably
views them, punishments, even mandatory ones, appropriate to each.” We
turn, then, to the role of the judiciary in enforcing this public mandate that
the crime of illegal possession of a gun be impressed upon all as a serious
offense against society.
 Basic Principles of the Criminal Law Ch. 1
14

It is scarcely worth repetition to observe that a sentencing

determination is a matter committed to the exercise of the sentencing
court’s discretion, for it is that court’s primary responsibility. Sentencing
involves consideration of the crimes charged, the particular circumstances
of the offender, and the purposes of a penal sanction.
As has been oft-stated, the four principal objectives of punishment are
deterrence, rehabilitation, retribution and isolation. While deterrence
includes individual deterrence directed at preventing the specific offender
from repeating the same or other criminal acts, it also includes general
deterrence which aims to discourage the general public from recourse to
crime. Rehabilitation is directed, of course, at reform of the individual,
while retribution includes “the reaffirmation of societal norms for the
purpose of maintaining respect for the norms themselves,” community
condemnation, and the community’s emotional desire to punish the
offender. Isolation serves simply to segregate the offender from society so
as to prevent criminal conduct during the period of incarceration. It is clear
that the principal aim of the 1980 gun legislation is general deterrence.
The most difficult problem confronting the sentencing judge is
determination of the priority and relationship between the objectives of
punishment, a matter of considerable and continuing debate. Inevitably,
there are bound to be differences of opinion in the relative values assigned
these factors in particular cases. The theories frequently are in
unavoidable and constant conflict and those that prevail in the sentencer’s
mind obviously decide the degree of punishment. Much of the controversy
and criticism swirling about the contemporary sentencing scene relates to
inequitable disparities between sentences for the same or similar crimes.
The disparities derive primarily from differing philosophies and attitudes
of judges and a lack of consensus concerning the goals of criminal justice.
Appellate review of sentences obviously is a useful means of
diminishing sentencing disparity and ensuring the imposition of fair
sentences. Nevertheless, the limited nature of appellate review of
sentences is a recognition that “the sentencing decision is a matter
committed to the exercise of the [sentencing] court’s discretion. A
reviewing court lacks some of the first-hand knowledge of the case that the
sentencing judge is in a position to obtain, and therefore the sentencer’s
decision should be afforded high respect. As a consequence, abuse of
discretion is the test most frequently cited as the one to be applied. The
abuse of discretion standard is especially befitted to an era in which most
convictions derive from plea bargains where the bargaining leverages of
the respective parties to the agreement are ofttimes more important in
fixing the degree of the crime pleaded to and the other limits of the sentence
to be imposed than matters of guilt, fault, character, mitigative
circumstances oi othei factors which might otherwise seem more relevant.
Nevertheless, since the Legislature has empowered us to modify sentences
Sec. B Justifications for Punishment 15

“as a matter of discretion in the interest of justice” and our general review
powers include the right to do whatever the trial court could have done
even in matters entrusted to the discretion of that court, we can substitute
our own discretion for that of a trial court which has not abused its
discretion in the imposition of a sentence. The power to substitute
discretion helps us to meet recommended sentence review standards by
making any disposition the sentencing court could have made, except an
increased sentence. Without the substitution power, our ability to rectify
sentencing disparities, reach extraordinary situations, and effectively set
sentencing policy through the development of sentencing criteria, would be
sorely handicapped.
Appellate review determines whether the sentence is excessive to the
extent that there was a failure to observe the principles of sentencing. In
such review, the court takes a “second look” at the sentences in light of the
societal aims which such sanctions should achieve. But in reducing any
sentence, the appellate body must be sensitive to the fact that its actions
become guidelines for the trial court to follow in the imposition of future
sentences under circumstances similar to the case reviewed.
In the current case, there has been no abuse of discretion and we
perceive neither a failure to observe sentencing principles nor a need to
impose a different view of discretion than that of the sentencing judge.
True, the defendant does not appear to be a danger to society or in apparent
need of rehabilitation. It is plain, however, that the sentencing court
viewed general deterrence as the overriding principle, and we cannot say
that the emphasis was erroneous or that the interests of justice call for a
reduction. Deterrence is the primary and essential postulate of almost all
criminal law systems. In this era of conflict between the adherents of the
rehabilitation model and those who advocate determinative sentencing, it
is hardly debatable that prisons do deter even if the degree of deterrence
and the types of persons deterred remain in dispute. Even when imposing
an “individualized” sentence, the judge may look beyond the offender to the
presumed effect of the sentence on others. Indeed, the primary purpose
behind mandatory sentence laws is to impose swift and certain punishment
on the offender. A short definite period of confinement under the
circumstances has been seen as the most effective method of deterrence. As
Marvin Frankel has written, general deterrence may be satisfied through
“relatively short but substantially inexorable sentences to prison.” Some
commentators have concluded that lesser punishment for firearm crimes,
e.g., fines, probation or suspended sentences, is not significant enough to
have any real deterrent effect.
In emphasizing the mandatory minimum sentence and the purpose of
deterrence, the new gun legislation intended to convey to the public a “get
tough” message on crime. In this regard, the advertisements heralding the
new law are significant; thus: “If you get caught carrying an illegal
 Basic Principles of the Criminal Law Ch. 1
16
handgun, you’ll go to jail for one year. No plea bargaining. No judges feeling
sorry for you. Just one year in jail.”
With such a background, we cannot view the new gun law as
containing a blanket exception of first offenders from the scope of its penal
provisions. The statute’s provisions for mitigation are not carte blanche for
the commission of one offense free of the threat of a sentence of custodial
detention. The sense of the new law is to deter all unlicensed handgun
possessions, whether the offense is the first or a repeat. The special
mitigation inquiry is not intended to provide automatic probation for those
without prior criminal records. The penalty to be imposed is a matter for
the trial court’s broad discretion within the limits imposed by the
Legislature. In balancing the public and private interests represented in
the criminal justice process, the sentencing court’s decision in this case was
neither inconsistent with sound sentencing principles, nor inappropriate.
We see nothing obscene about a 30-day jail sentence (which is subject to a
10-day reduction for good behavior) for possession of a gun. particularly
when the defendant has a history of carrying the weapon for over seven
years with knowledge of the law’s requirements.
Reduction of the current sentence by this court would proclaim to those
listening that the new gun law presents no threat of jail to first criminal
offenders. Such a reduction would also declare to the trial bench that a
judge who imposes a 30-day jail sentence on such a first offender has either
abused his discretion or that this court disagrees with the sentencer’s
evaluation of the relevant sentencing factors. Finally, reduction would be
this courts expression that violation of the gun law is nothing serious.
Accordingly, the sentence is affirmed.
O’Connor, Justice (dissenting).
In his usual scholarly and impelling style, my esteemed confrere of the
majority, Justice Lazer, reviews the principles and discusses the rationale
attendant upon sentencing and its appellate review. And so we go pell mell
on our merry, merry way! More crimes are committed, more police make
more arrests more D.A.’s process more cases, more judges commit more
peop e to jai, and here, the majority would affirm a jail sentence despite
the presence of what, by any standard, was an abuse of sentencing
discretion that warrants, nay demands, a reduction to probation. I cannot
agree.
Recently released Justice Department figures for 1981 indicate that
there were 369,000 adults in Federal and State prisons at the end of that
year, plus nearly 157,000 in local jails. The National Council on Crime and
Delinquency reports that the United States trails only the Soviet Union
and South Africa (what a combination!) in its per capita rate of
incarceration and, contrary to popular belief, in the severity of the
Sec. B Justifications for Punishment 17

punishments it inflicts! And in spite of it all, the crime rate continues to

soar. * * *
It seems to me that it’s about time we begin to find, in matters such as
this where no violence or even threat of violence is present, alternatives to
jail. I further believe that rather than joining those who bend before the
incessant cry of a rightly outraged public for vengeance we, as appellate
judges, should seek to put some sanity into the sentences we approve under
these circumstances.
I agree with the principle, articulated in the majority opinion, that an
appellate court ought not disturb a sentence in the absence of an abuse of
discretion by the sentencing court or unless the interest of justice so
requires. I further agree that a workable test for applying this principle is
whether the alleged excessiveness of the challenged sentence in fact
demonstrates a failure by the sentencing court to observe the purposes of
sentencing: individual and general deterrence, rehabilitation, retribution
and isolation. I can even agree to the soundness of visiting upon one
individual a punishment greater than would have been his had the
sentencing court not decided to make an example of him in order to curb
sharply a sudden manifestation in the general public of pernicious conduct
previously endemic to certain subclasses, e.g., drug abuse, or to overcome
widespread public intransigence to legislated curbs on historically
unregulated conduct such as gun possession. But I disagree with the
majority’s statement that the sentencing judge, rather than this court, may
on an ad hoc basis, subject only to personal predilections, establish the
coefficients to the four variables of deterrence, rehabilitation, retribution
and isolation in this sentencing formula. This court should not abdicate its
responsibility for the assignment of appropriate, if somewhat inexact,
weights to these factors in the discharge of its obligation to control
sentencing discretion within the overarching limits fixed by the Penal Law.
Is it just or proper that we permit one sentencing judge to count
general deterrence as the overriding factor in this gun possession case
under the new anti-gun law, with the implication that another sentencing
judge in a factually identical case may switch the emphasis in the formula
to another factor, e.g., rehabilitation? Bear in mind that the difference
resulting from our toleration of such ad hoc legislating by sentencing judges
is incarceration, and I most vehemently reject any argument that
incarceration is but a gentle escalation of sanctions to the point at which a
real deterrent effect can finally be ascertained operating on the populace.
After all, 30 days in the county jail will surely cripple the spirit of any
otherwise law-abiding citizen who honestly believed that the cost of
unlawfully possessing a gun (discounted tremendously by the
infinitesimally small probability of being caught) outweighed the benefit of
protecting his life while conducting his livelihood in an urban war zone. I
submit that it is we, as the Appellate Division, that should assign the
18 Basic Principles of the Criminal Law Ch-J.
approximate values to the parameters of the sentencing formula (to the
extent possible), and that we should restrict sentencing judges to their
proper role in applying this legal formula, as so weighted, to the facts as
they find them in individual cases.
I pose the questions:
(1) Is it a proper exercise of discretion to sentence to jail a first
offender who poses no serious threat to the community?
(2) Does the nature of the crime here committed make it a serious
threat to the community?
With these thoughts in mind, let us look at the case at bar.
On the morning of January 20, 1981, while driving through Nassau
County on his way to his place of business in New York City, the defendant
was stopped and arrested on a bench warrant charging him with the
unauthorized use of a motor vehicle.
The validity of that warrant, or the merits of the complaint upon which
it was issued, are not before the court at this time, but it should be noted
that it is defendant’s contention that the charge is totally without
substance, arising, he alleges, out of a misunderstanding involving the
return by him of a rented automobile.
Be that as it may, upon his arrest he was found in possession of a
loaded Sterling .25 caliber automatic pistol. He was promptly charged with
the crime of criminal possession of a weapon in the third degree, a class D
felony, was convicted on his plea of guilty to possession in the fourth degree,
a class A misdemeanor, and was sentenced to three years’ probation with
the special condition that he serve a determinate sentence of 30 days in the
Nassau County Correctional Center. Execution of that sentence has been
stayed pending appeal.
Upon appeal to this court as excessive, that sentence has been affirmed
by my confreres of the majority. I respectfully disagree and strongly
suggest that under the facts and circumstances here extant, it is totally
inappropriate and completely counterproductive to impose a jail sentence
for however short a period of time.
An objective review of the record establishes that this defendant, a
successful businessman, with three years of college education, is married
and the father of two children, a daughter, aged 21, and a son, 14 years of
age.
Since 1973 the defendant has owned and operated a custom tailer [sic]
shop which is located in a high-crime area of the Bronx. A prior owner of
the shop had been stabbed during one of several robberies that took place
before defendant became the proprietor. The defendant lawfully purchased
Sec. B Justifications for Punishment 19

the gun in question in North Carolina and properly registered it in that

State.
According to the arresting officers, the defendant was “very
cooperative” when arrested, and readily admitted that he knew that it was
illegal to carry an unregistered pistol in New York City and stated that
although he had inquired about obtaining a gun permit, he had never
completed the process. The defendant told the police that he thought he
needed the gun for self-protection.
The Probation Report contains this significant appraisal:
The present offense is the defendant’s only criminal conviction
and his first criminal charge in 21 years. He appears to be a
devoted father and husband, as well as a productive member of
society. There is no evidence of criminal intent in his possession
of this weapon and his desire for protection in his business
neighborhood is justified.
No one can sustain this defendant, or any person, in the illegal
possession of a loaded firearm. It is a clear violation of law and calls for an
appropriate sanction and penalty. But under the clear and compelling
circumstances here present, is it appropriate or fair or just to send this first
offender off to jail for 30 days, 10 days or even one day? To me, such a
sentence based upon these facts is cruel and harsh and borders on the
obscene.
It is beyond cavil that violent crime is ever on the increase and that it
is, in all its terrifying aspects, continuously creating conditions of
unspeakable horror on the streets of our cities. Out of these jungle
conditions in crescendo fashion, the cry of an aroused and frightened public
is heard demanding, with good reason, swift and effective measures to
contain and to curtail the monstrous abominations which are daily visited
upon them. The fire is fueled by those who should and do know better but
who, seizing upon a popular theme, pick up the cry and, by some total
distortion of reason, imply that the fault lies with the judiciary and suggest
that tougher and longer prison sentences are the solution. The Legislature
responds by passing more and more mandatory sentencing laws and the
press and other news media not infrequently give at least tacit approval to
such measures. And all the time, judges, sitting in the eye of the storm,
know that the catastrophic rise in crime bespeaks a failure not alone of
society, but of the family, the church, the schools, the home and of the
economic and political structure of the State itself. We know, too, that there
are as many reasons for crime as there are people who commit it and we
have long since learned that there is no simple solution or ready answer to
the problem. I have previously expressed my disapproval of mandatory
sentences because of a firmly held opinion that mandatory sentences give
to a worried and frightened public the illusion of protection, that they do
20 Basic Principles of the Criminal Law Ch. 1
not deter the criminal and, worst of all, that they incapacitate a major
section of the system of criminal justice in denying discretion to the courts.
Are we really ready to give up on the theory that the punishment fit the
crime?
To the issue before us—to tack on an additional jail sentence for the
possession and/or use of the gun, loaded or unloaded, in or about the
commission of a crime, makes much sense and may even be effective.
However, to send an otherwise law-abiding citizen to jail on his first offense
under the facts of this case makes no sense, accomplishes no good and
creates nothing but untoward hardship and bitterness. I respectfully
dissent and would modify the sentence by striking the 30-day period of
incarceration.

Haven or Hell? Inside Lorton Central Prison:

Experiences of Punishment Justified
Robert Blecker"
42 Stan. L. Rev. 1149(1990)

I. INTRODUCTION

A. The Problem: Justifying Punishment

Why and how should we punish these criminals? A fearful and furious
citizen may demand: “First, get them off the streets; keep them away from
us. Make them suffer: They deserve it. Teach them a lesson they will not
forget. And let their pain and suffering be an example to others. Maybe
then, having been punished, someday, somehow, these criminals will feel
remorse, change their attitudes, and productively reintegrate into society.
Drawing upon sentiments and concepts implicit in the Bible and the works
of Plato, Hobbes, Beccaria, Kant, Bentham, and a host of contemporary
commentators, the citizen urges that punishment serve as incapacitation,
retiibution, general deterrence, specific deterrence, and rehabilitation.
The precise definition of each concept differs with each advocate,
antagonist, or analyst. Essentially, however, incapacitation is rendering
harmless to society a person otherwise inclined to crime. Retribution is the
intentional infliction of pain and suffering on a criminal to the extent he
deserves it because he has willingly committed a crime. General deterrence
is the pressure that the example of one criminal’s pain and suffering exerts
on potential criminals to forgo their contemplated crimes. Specific
deterrence is the pressure that unpleasant memories of incarceration exeit

■ Robert Blecker, a criminal law professor at New York Law School, interviewed s
criminals in Lorton Prison and on the streets of Washington, DC. from 1986 to 19 •
maximum-security facility at Lorton closed in 2001. The facility—much of it built with P
labor—has been renovated and turned into an apartment community called, interesti g
“Liberty Crest.”
Sec. B Justifications for Punishment 21

on a released convict, which cause him to obey the law. Rehabilitation is

the acquisition of skills or values which convert a criminal into a law-
abiding citizen. * * *
Those who do [prioritize] among the various justifications or purposes
of punishment, almost without exception address the problem
conceptually, as a matter of logic or philosophy. Without discussion, they
assume that an appropriate blend of retribution, deterrence,
incapacitation, and rehabilitation ultimately translates into a number, or
number range, such as “10 years in prison” or “5-to-15 years in prison.” A
legislature or court need merely increase or decrease the length of the
“sentence” to increase or decrease retribution, rehabilitation, deterrence,
or incapacitation. Often this abstraction is obscured: the number becomes
the punishment rather than a symbol of its duration which is only one
dimension of a prisoner’s actual pain and suffering.
Punishment, however, is not merely the quantity of time in prison. The
reality of each criminal’s punishment consists in the experience of that
punishment. What actually happens to prisoners—their daily pain and
suffering inside prison—is the only true measure of whether the traditional
concepts have meaning, the traditional goals are fulfilled, the traditional
definitions apply. Only through the prisoners’ experience can we test the
categories, clarify these concepts, and set priorities. * * * This study, then,
attempts to bridge the gap between traditional penal philosophy and the
actual experience of punishment. * * *
II. INSIDE LORTON CENTRAL
Retribution, deterrence (general and specific), rehabilitation, and
incapacitation represent overlapping and antithetical perspectives on why,
when, and to what degree criminals should undergo pain and suffering
through punishment. In order to evaluate these various definitions,
justifications, and goals of punishment, therefore, we need to know
whether and how prisoners do in fact suffer inside Lorton Central.
Of course everyone’s “bit”—time spent in prison—is different. One
individual feels a loss of freedom more or less than another. A forced
separation from home, and the streets, and entrance into a new prison
environment can be more or less painful. Losing family ties may cause a
criminal to suffer differently at different stages of life. And in the course of
each day, moment to moment, a prisoner’s experience of prison changes.

C. Haven or Hell?
* * * What is the real experience of Lorton? Obviously it depends. Some
guys breeze through it; others live in agony. Even Douglas Wright who
called Lorton a “playground” qualified it: “[A] playground to all those
youngsters who don’t know what’s happening.”
38__________ Basic Principles of the Criminal Law_________ Ch. 1

can be understood without an appreciation of the political advantages

it has enjoyed over rival forms of punishment by virtue of its
expressive overdetermination.
Id. at 2089-90.
Although Kahan has recanted, other advocates support a different theory
of criminal justice that involves shame: “restorative justice,” which involves
the idea of “reintegrative shaming.” For more on restorative justice, see
Chapter 14.

C. THE PRESUMPTION OF INNOCENCE AND

PROOF BEYOND A REASONABLE DOUBT
In American litigation, criminal trials begin with the prosecution’s
attempt to establish the defendant’s guilt. The reason why the prosecution
goes first in a trial is the presumption of innocence, which has been
described by the Supreme Court as “that bedrock 'axiomatic and
elementary’ principle whose ‘enforcement lies at the foundation of the
administration of our criminal law.’ ” In re Winship, 397 U.S. 358, 90 S.Ct.
1068,25 L.Ed.2d 368 (1970). The formal way of saying that the prosecution
has the responsibility for establishing the defendant’s guilt—rather than
the defendant having the responsibility for establishing his or her
innocence is that in a criminal case, the prosecution bears the burden of
proof
*
The standard of proof in litigation describes the level of certainty the
fact finder must reach before ruling for the party with the burden of proof.
“u an ,^mer’can criminal trial, the prosecution’s standard of proof is
eyon a reasonable doubt.” This is the most difficult standard of proof to
meet in merican law; in civil cases, in contrast, the standard is usually “a
preponderance of the evidence,” meaning “more likely than not.”
Whj is the burden of proof in a criminal trial so onerous? In Winship,
the Supreme Court set forth some reasons for placing such a heavy burden
on the government:
The reasonable-doubt standard ... is a prime instrument for
reducing the risk of convictions resting on factual error. * * * “[A]
AdTcaR aCCV'Se ° a cr'me • • • w°uld be at a severe disadvantage,
van age amounting to a lack of fundamental fairness, if he

• There are two types of burdens of proof: the burden of production and the burden of
persuasion. The burden of production is the initial responsibility to produce evidence in support ot
a claim. 1 he burden of persuasion is the ultimate responsibility of proving that a given offense was
committed or that the elements of an asserted defense are either present (the defendant’s position)
or absent (the prosecutors position). In a criminal case, the burden of persuasion as to charge
offenses always rests with the prosecution. The burden of persuasion as to a defense may rest with
the prosecution or the defendant, depending on the type of defense asserted. For simplicity’s sake,
however, it is common to speak of the “burden of proof.”
 The Presumption of Innocence and Proof
Sec. C Beyond a Reasonable Doubt 39

could be adjudged guilty and imprisoned for years on the strength

of the same evidence as would suffice in a civil case.”
The requirement of proof beyond a reasonable doubt has this vital
role in our criminal procedure for cogent reasons. The accused
during a criminal prosecution has at stake interests of immense
importance, both because of the possibility that he may lose his
liberty upon conviction and because of the certainty that he would
be stigmatized by the conviction. Accordingly, a society that
values the good name and freedom of every individual should not
condemn a man for commission of a crime when there is
reasonable doubt about his guilt. * * *
Moreover, use of the reasonable-doubt standard is indispensable
to command the respect and confidence of the community in
applications of the criminal law. It is critical that the moral force
of the criminal law not be diluted by a standard of proof that
leaves people in doubt whether innocent men are being
condemned. * * *
The reasonable doubt standard is not just a good idea; it is the law. In
Winship, the Court held that the Due Process Clause of the Fifth and
Fourteenth Amendments of the U.S. Constitution “protects the accused
against conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.” 397 U.S.
at 364.
Because the prosecution always retains the burden of proof beyond a
reasonable doubt in order to secure a conviction, one possible defense
strategy is simply to create a reasonable doubt about some element of the
crime. This kind of strategy is sometimes described as a case in chief
defense, or a prima facie case defense. Suppose, for example, that the
defendant has been charged with theft, and one element of that crime is
the intentional taking of the property of another. By simply creating a
reasonable doubt about whether the taking was intentional or merely
accidental, the defense can win and the defendant can be acquitted. This
kind of defense may not require the introduction of any evidence; it
requires only that the defendant “poke holes” in the prosecution’s story.
However, a second strategy is also available to the defense: admitting
the basic crime, but arguing for acquittal based on extenuating
circumstances. For instance, the defendant can admit that she took the
victim’s property, but argue that the taking was justified: she stole the
victim’s fire extinguisher in order to put out a fire that would have
otherwise killed an entire family of innocent people. Or, the defendant can
admit she stole the property, but argue that she should nevertheless be
excused from criminal punishment because she believed the fire
extinguisher was actually a transmission device for messages from Saturn,
40 Basic Principles of the Criminal Law Ch. 1
and she needed to receive and translate these messages in order to save
the Earth. This kind of defense—in which the defendant admits guilt as to
the charged offense, but claims she nevertheless should be acquitted of that
offense either because she was justified in acting the way she did or because
she should be excused—is called an affirmative defense. In contrast to the
burden of persuasion for the case in chief, which always remains on the
prosecution as a matter of constitutional law, the legislature may place the
burden of persuasion regarding an affirmative defense on the defendant.
In such a case, the defendant has the responsibility to prove the elements
of any justification or excuse defense6 he or she asserts at trial. In
situations in which the legislature has allocated the burden of persuasion
to the defendant, the defendant is usually required to prove the affirmative
defense by a preponderance of the evidence, the same standard used in civil
trials.
What does “reasonable doubt” mean? Consider the following model
jury instructions.

Criminal Jury Instructions for

the District of Columbia
Instruction 2.108—REASONABLE DOUBT
Young Lawyers Section of the Bar Association of the District of Columbia (5th ed., 2013)

he government has the burden of proving [name of the defendant]

gu11) ejond a reasonable doubt. In civil cases, it is only necessary to prove
, .a, ,a actmore true than not, or, in some cases, that its truth is
g J pro a e. In criminal cases such as this one, the government’s proof
ust e more powerful than that. It must be beyond a reasonable doubt.
.6 aS tbe name implies, is a doubt based on reason—a
■ > orw c ^ou have a reason based upon the evidence or lack of
of all th ln CaSe a^er care^uh honest, and impartial consideration
dpfpnda epeV1 e,nce’you cannot say that you are firmly convinced of the
defendant s guilt, then you have a reasonable doubt.

norcnneaS<r?a 6 doubt that would cause a reasonable

m-avpr’nr U thoughtful reflection, to hesitate to act in the
doubt nnrTV j1 matters in hfe. However, it is not an imaginary
on reason Th °U °n speculation or guesswork; it is a doubt based
or to a mathp g°.Verament not required to prove guilt beyond all doubt,
beyond a reasonLle dolr^ Certainty’ ItS burden is to Prove guiU

The distinction between justification

s and excuses is discussed in Chapter 10.
Sec. D Standards of Review 41

California Jury Instructions—Criminal

2.90. Presumption of Innocence—Reasonable Doubt—Burden of Proof
7th ed., West, 2003

A defendant in a criminal action is presumed to be innocent until the

contrary is proved, and in case of a reasonable doubt whether [his] [her]
guilt is satisfactorily shown, [he] [she] is entitled to a verdict of not guilty.
This presumption places upon the People the burden of proving [him] [her]
guilty beyond a reasonable doubt.
Reasonable doubt is defined as follows: It is not a mere possible doubt;
because everything relating to human affairs is open to some possible or
imaginary doubt. It is that state of the case which, after the entire
comparison and consideration of all the evidence, leaves the minds of the
jurors in that condition that they cannot say they feel an abiding conviction
of the truth of the charge.

D. STANDARDS OF REVIEW
Before a criminal trial has ended, at the close of the prosecution’s case
in chief, a defendant may move for a directed verdict of acquittal, in which
the judge directs the jury to acquit for lack of evidence. After the trial is
completed, if the defendant is convicted, he may appeal the conviction to a
higher court for review of the sufficiency of the evidence. What standard of
proof should the trial judge apply to a motion for a directed verdict? What
standard of proof should an appellate court apply when reviewing the
evidence supporting a conviction?
It may be surprising, at first glance, to learn that in these situations
the trial judge and the appellate judge or judges do not apply the
reasonable doubt standard. Instead, the standard of review is a more
complex one. On a motion for a directed verdict, the trial judge asks herself
or himself, not whether the prosecution has proved its case beyond a
reasonable doubt, but whether the prosecution has introduced sufficient
evidence such that a rational jury could decide that the prosecution has
proved its case beyond a reasonable doubt. On an appeal based on the
sufficiency of the evidence, the question for the appellate court is, again,
not whether the prosecution has proved its case beyond a reasonable doubt,
but rather whether a rational jury could have, on the evidence presented,
found the defendant guilty beyond a reasonable doubt. These standards
suggest that when the trial court is deciding whether to free the defendant
without the jury’s input or when, in spite of the jury’s belief that the
defendant should be convicted, an appellate court is deciding whether to
reverse a conviction, the court will give the prosecution, not the defendant,
the benefit of the doubt. The following case helps illuminate this counter­
intuitive standard of review.
42 Basic Principles of the Criminal Law Ch.i

Curley v. United States

United States Court of Appeals, District of Columbia
160 F.2d 229 (D.C. Cir. 1947)

Prettyman, Associate Justice.

Appellants were indicted for violation of the mail fraud statute and for
conspiracy to violate that statute. Trial was had before a jury. At the
conclusion of the case for the prosecution, the defendants moved for
directed verdicts of acquittal. The court denied the motions. Defendants
Curley and Fuller stood on the motions and offered no evidence. Defendant
Smith presented eight character witnesses and proffered certain
documentary evidence. These three defendants were convicted on the
conspiracy count. * * * The appeals were consolidated for argument.
[Curley and the other defendants were members of “the Group,” a
business organization involved in government procurement for housing
and defense-related contracts.]
* * * In the negotiation of the contracts, representations were made in
the name of the Group as to business controlled by it, its staff, its assets,
and the existing status of various government projects. The money was
received by the Group under agreements that it be held as deposits and
returned if contemplated business projects did not materialize. The
representations were false, and the agreements were not kept, except that
three refunds were made from funds paid in by other people. The Group
was represented as having within its control the designation of contractors
on certain government housing projects and war work. It had none. It
represented [itself] as having large amounts of cash in bank and extensive
security holdings. It had no such amounts or holdings. Certain housing
projects were represented as having been approved by the Federal Housing
Administration. They had not been. Commitments on financing were
represented as having been made by financial institutions on certain
projects. No such commitments had been made. These various
representations were inducements for the contracts made by the Group
with its customers or clients. They were made verbally, in letters, in
contract agreements, and in a brochure widely distributed. The money
received as deposits was not held but was spent as received. * * *
[Curley s claim at trial was that, although he served as President of
t e Group, there was no proof that he was involved in any significant way
in the fraudulent activities of the Group.]
The functions of the jury include the determination of the credibility
of witnesses, the weighing of the evidence, and the drawing of justifiable
inferences of fact from proven facts. It is the function of the judge to deny
the jury any opportunity to operate beyond its province. The jury may not
be permitted to conjecture merely, or to conclude upon pure speculation or
from passion, prejudice or sympathy. The critical point in this boundary is
Sec. D Standards of Review 43

the existence or non-existence of a reasonable doubt as to guilt. If the

evidence is such that reasonable jurymen must necessarily have such a
doubt, the judge must require acquittal, because no other result is
permissible within the fixed bounds of jury consideration. But if a
reasonable mind might fairly have a reasonable doubt or might fairly not
have one, the case is for the jury, and the decision is for the jurors to make.
The law recognizes that the scope of a reasonable mind is broad. Its
conclusion is not always a point certain, but, upon given evidence, may be
one of a number of conclusions. Both innocence and guilt beyond reasonable
doubt may lie fairly within the limits of reasonable conclusion from given
facts. The judge’s function is exhausted when he determines that the
evidence does or does not permit the conclusion of guilt beyond reasonable
doubt within the fair operation of a reasonable mind.
The true rule, therefore, is that a trial judge, in passing upon a motion
for directed verdict of acquittal, must determine whether upon the
evidence, giving full play to the right of the jury to determine credibility,
weigh the evidence, and draw justifiable inferences of fact, a reasonable
mind might fairly conclude guilt beyond a reasonable doubt. If he concludes
that upon the evidence there must be such a doubt in a reasonable mind,
he must grant the motion; or, to state it another way, if there is no evidence
upon which a reasonable mind might fairly conclude guilt beyond
reasonable doubt, the motion must be granted. If he concludes that either
of the two results, a reasonable doubt or no reasonable doubt, is fairly
possible, he must let the jury decide the matter. In a given case,
particularly one of circumstantial evidence, that determination may
depend upon the difference between pure speculation and legitimate
inference from proven facts. The task of the judge in such case is not easy,
for the rule of reason is frequently difficult to apply, but we know of no way
to avoid that difficulty. * * *
The crucial question at this point seems to us to be whether [Curley]
knew of the wrongful acts being committed in the name of the Group.
Because, if he knew, reasonable minds might fairly conclude that he must
necessarily have been a participant in the scheme, i.e., a conspirator; that
no other hypothesis is consistent with that knowledge and his acts. Was
such knowledge on his part a legitimate inference from the proven facts? It
seems to us that it was. He was president of the corporation. He was
frequently in its offices. He introduced customers. He personally attempted
to arrange with a bank for a “loan” which was to be left on deposit, a sham
depiction of financial substance. The misrepresentations made by the
Group were total, not incidental or occasional. They were made not to
occasional customers or clients but to all of them. The misrepresentations
were not as to whether a group, in control of certain contracts, was also in
control of others; this Group had control of no contracts whatever. The
misrepresentations weie not as to incidents of the staff and organization of
44 Basic Principles of the Criminal Law Ch. 1

the Group; it had no staff worthy of the name. The Group did not have
funds which it might legitimately use for operating expenses and, by
inadvertence or misconduct of an individual, dip into other funds which it
was obligated to hold on deposit; it had no funds whatever, other than the
deposits. Occasional, incidental or partial misrepresentation or
misappropriation by one officer of a corporation may be unimpressive as a
basis for imputing knowledge to another officer: but total
misrepresentation of the corporate affairs and total diversion of funds is
substantial ground for an inference of knowledge on the part of an active
and experienced president. The jury might fairly and legitimately infer as
a fact from the proven facts that Curley knew of the wrongs being
committed. As we have said, if he knew, his proven activities with and on
behalf of the Group might fairly lead, if not compel, reasonable men to
conclude that he must necessarily have been a participant in the plans of
the Group. It cannot be said that upon all this evidence reasonable minds
must necessarily doubt that Curley was a participant in the activities of
the Group. * * *
The decision in the case rests squarely upon the rule of law governing
the action of the trial judge upon the motion for directed verdict of acquittal
and the action of an appellate court upon a verdict of conviction. We agree,
as Curley contends, that upon the evidence reasonable minds might have
had a reasonable doubt. As much might be said in many, if not in most,
criminal cases. The jury, within the realm of reason, might have concluded
that it was possible that Curley was merely a figurehead, that he had
complete faith in Fuller, that he never asked any questions, that he was
never informed as to the contents of contracts with customers or the
financial statements or the use of the money; in short, that it was possible
that he was as much put upon as were the customers. If the jury had
concluded that such was a reasonable possibility, it might have had a
reasonable aoubt as to guilt. But. as we have stated, that possibility is not
the criterion which determines the action of the trial judge upon the motion
for directed verdict and is not the basis upon which this court must test the
validity of the verdict and the judgment. If the evidence reasonably permits
a verdict of acquittal or a verdict of guilt, the decision is for the jury to
make. In such case, an appellate court cannot disturb the judgment of the
jury. If we ourselves doubted Curley’s guilt, that doubt would be legally
immaterial, in view of the evidence and the rule of law applicable. However,
we think it proper to add. under the circumstances of the case, that to us,
as to the jury, there is no doubt. * * *
Affirmed.
Wilbur K. Miller. Assoclxte Justice (dissenting).
It is my view that the jury should have been instructed to find the
appellant, James M. Cur-ley. not guilty. The wrongs were done by Fuller.
Sec. E The Role of Counsel 45

Curley made no representations to anybody. He did not participate in

negotiations with customers. He signed no letters, executed no contracts.
He did not know of the brochure or the financial statement. He received no
money or other thing of value. All this is admitted, even recited, in the
court’s opinion.
Whether Curley was guilty depended therefore, on whether he knew
of the wrongful acts being committed in the name of the Group. That, the
court correctly says, is the crucial question with respect to him. There was
no criminal intent if he did not know. If he knew, then it would follow that
he had become a conspirator with Fuller. But the evidence of knowledge
must be clear, not equivocal.
It is true, of course, that whether Curley had knowledge of Fuller’s
wrongdoing could not be proved directly, but could only be inferred from
what Curley did. Nevertheless, the presumption of innocence insists that
there be no equivocation in that proof. As always, it must convince beyond
a reasonable doubt. If it be not of that quality, if it be not clear but
equivocal, then the jury must not be permitted to speculate that the
defendant is guilty. * * *
To prove guilt beyond a reasonable doubt does not mean merely to
prove certain facts which are as consistent with innocence as guilt. To me
the expression means to submit evidence which produces in the minds of
the jurors an abiding and conscientious conviction, to a moral certainty,
that the accused is guilty. I am aware of the fact that his classic paraphrase
of proof beyond a reasonable doubt by Chief Justice Shaw of Massachusetts
has been criticized of late, but I do not agree with the critics. Reasonable
doubt is not eliminated by evidence from which the jury may draw either
of two irreconcilable inferences. * * *

E. THE ROLE OF COUNSEL

American Bar Association

Ethical Standards for Defense and Prosecution Function

Ethical Standards for the Defense Function

Standard 4-1.2 The Function of Defense Counsel
(a) Counsel for the accused is an essential component of the
administration of criminal justice. A court properly constituted to
hear a criminal case must be viewed as a tripartite entity
consisting of the judge (and jury, where appropriate), counsel for
the prosecution, and counsel for the accused.
(b) The basic duty defense counsel owes to the administration of
justice and as an officer of the court is to serve as the accused’s
64 Basic Principles of the Criminal Law Ch.i
would be fewer African-Americans seated on juries than there are today,
***
If potential African-American jurors were to embrace the Butler plan,
and if they were honest during voir dire, their belief in jury nullification
would at least give prosecutors a race-neutral explanation for removing
these jurors with their peremptory strikes. In addition, if the jurors were
candid in admitting that they came to the jury box with a very strong
presumption of acquitting a defendant regardless of what the facts show,
such jurors could almost certainly be removed for cause. Since there are no
limits on the number of challenges for cause, every African-American juror
who believed in race-based nullification might be excused in certain cases.
The result would inevitably be juries that are less diverse; this surely
cannot be part of the solution that Professor Butler seeks.
My second technical argument is that juries are incapable of making
reasoned nullification decisions, because at trial they will not be given the
information they need. At the heart of Professor Butler’s plan is the notion
that juries should engage in a cost-benefit analysis when deciding whether
to convict. Jurors are supposed to look at the defendant and ask, “Even if
this defendant committed the crime charged, what are the rewards of
keeping this person out of jail, and what are the risks to the community of
letting this person stay free?” The problem is that juries will never hear
the evidence that would help them answer this question.
Consider the problem in the context of a simple drug possession case.
If we were sitting on a jury, what would we like to know about the
defendant before we decided whether to nullify his conviction? We would
probably want to know whether the defendant is contrite. We would want
to know whether he had a criminal record, and if so, how serious were his
prior crimes. We might want to know whether there was anyone else
involved in the crime who is more blameworthy. We might wonder how the
prosecution enforces this crime against others: are African-Americans
disproportionately targeted or arrested for this type of crime? We might
also want to know about the potential sentences the defendant would face
if convicted, under our cost-benefit analysis, we might be more willing to
nullify if the defendant faced a stiff, mandatory sentence.
• Jr°blem's that almost none of this information is admissible at
trial. Defendants cannot be forced to testify, so the jurors will often be
unable to evaluate the defendant’s contrition. Evidence of prior crimes is
usually inadmissible, as is information on possible sentences or the
prosecution s enforcement scheme. In short, through no fault of their own,
jurors just will not be able to engage in a meaningful cost-benefit analysis.
The best they would be able to do is speculate, based on what they think
migb * gomg on’ rather than on what is actually going on in the case at
hand. * * *
Sec. G Statutory Interpretation 65

There are undoubtedly other groups that will feel that they, too, do not
get a fair shake from the criminal justice system and they, too, should come
to the jury box with an eye toward nullifying the convictions of members of
their groups. “What’s so bad about that,” you ask? “Maybe that’s the way
all juries should decide cases.” The problem with nullification is that once
we tell a jury, directly or indirectly, that it is okay to engage in an
uninformed cost-benefit analysis, we have no moral basis for complaining
about any decision that a jury makes.
Assume that a jury nullifies in the case of a young African-American
defendant who has been charged with simple possession. Maybe this is a
good result: maybe in that specific case, society is better off keeping another
African-American kid out of jail, away from a very harsh sentence. But now
assume that the next jury comes back and says, “Yes, we think this
defendant battered his wife, but you know, she decided to stay in the
marriage rather than get a divorce, it looks like she provoked him by
spending too much time at her job, she was nagging him, et cetera, and we
are not going to send this guy to jail.” When a jury recently acquitted a
defendant who had raped a woman at knife point because the woman was
“asking for it” by dressing in a provocative manner, this also sounded like
a cost-benefit analysis. We might be repelled by this reasoning, but we do
not have any standing to complain about the process by which the outcome
was reached. Those juries also engaged in a cost-benefit analysis, the same
process approved of by the Butler plan. * * *
The final concern I have is at the broadest philosophical level. It is a
comment that makes me very sad to have to raise at all: whether you go to
jail or get set free should not depend on the color of your skin. Using race
as the reason for acquitting or convicting is a bad idea, and no matter how
strategic the reasoning and no matter how good our intentions, it is still
wrong. It is wrong because it encourages the kind of stereotyping that had
led to problems in the first place. It is wrong because we are telling people
that they will never get equal justice in the courts and so you should take
whatever you can get, however you can get it, and be satisfied with that.
In short, the plan raises the flag of surrender in the fight for equal justice
under the law.

G. STATUTORY INTERPRETATION
As we have seen, the primary source of criminal law in the United
States is statutory law. No statute, however, is self-interpreting, and
judges play an important role in deciding what a particular statute means
and how it should apply to particular cases. Whether the jurisdiction is one
whose penal code is based on the common law of England or one that has
incorporated the Model Penal Code in whole or in part, judges must develop
ways to interpret statutes to serve a number of goals. These goals include
respecting the “plain language” of the statutory text; discerning and
66 Basic Principles of the Criminal Law Ch.i

effectuating the intent of the legislature or, in the case of an initiative, the
voters; and making sure that the interpretation of a particular statute in
one case does not contradict its interpretation in another case.
Judges in England and the United States have developed a body of
informal rules over time to help them interpret statutes. Some of these
rules address what values a judge should prioritize when reading a statute:
for example, the rule that the interpreter should always begin with the text
of the statute itself. Other rules concern efficiency in the administration of
justice: for example, the rule that statutes should be interpreted in such a
way as to avoid constitutional problems. Still other rules address grammar
and syntax issues that frequently arise in textual interpretation. Two of
these—noscitur a sociis and ejusdem generis—are described in the case
that follows. Finally, some rules of statutory interpretation, such as the
“rule of lenity,” also discussed in the following case, reflect basic principles
of fairness. Under the rule of lenity, all doubts when reading a criminal
statute should be resolved in favor of the defendant, in recognition of the
important liberty interests at stake and the presumption of innocence.
Collectively, these various sorts of interpretive rules are referred to as
“canons of statutory construction.”
This alternative term for statutory interpretation—“statutory
construction”—reminds us that the process of interpretation is as much an
art as a science. Although judges are supposed to apply the law and not
make it, when statutory language is broad, ambiguous, or outdated, the
line between applying and making can become exceedingly fine. Indeed, as
students of literary interpretation know, to read a text is always in some
sense to construct’ its meaning. In Chapter 2, we will explore some of the
constitutional implications of the fuzzy boundary between discovering and
making meaning.

United States v. Dauray

United States Court of Appeals for the Second Circuit
215 F.3d 257 (2d Cir. 2000)

Jacobs, Circuit Judge:

Defendant-appellant Charles Dauray was arrested in possession of
pictures (or photocopies of pictures) cut from one or more magazines. He
was convicted following a jury trial in the United States District Court for
the District of Connecticut of violating 18 U.S.C. § 2252(a)(4)(B), which
punishes the possession of (inter alia) “matter,” three or more in number,
w ic contain any visual depiction” of minors engaging in sexually explicit
con uct. n appea from the judgment of conviction, Dauray argues that
the wording of § 2252(a)(4)(B)—which has since been amended^
am fguous as aPP to possession of three or more pictures, and that the
rule of lenity should therefore apply to resolve this ambiguity in his favor.
Sec. G Statutory Interpretation 67

We agree, reverse the conviction, and direct that the indictment be

dismissed.
BACKGROUND
On May 13, 1994, an officer of the Connecticut Department of
Environmental Protection approached Dauray’s car in a state park and
found Dauray in possession of thirteen unbound pictures of minors. The
pictures were pieces of magazine pages and photocopies of those pages. On
November 18, 1998, a federal grand jury returned a one-count indictment,
charging Dauray with possessing child pornography in violation of 18
U.S.C. § 2252(a)(4)(B). The version of the statute then in force punished
the possession of “3 or more books, magazines, periodicals, films, video
tapes, or other matter” that have passed in interstate or foreign commerce
and “which contain any visual depiction” showing (or produced by using) a
minor engaged in sexually explicit conduct. 18 U.S.C. § 2252(a)(4)(B)
(1994) (amended 1998). The statute defined “sexually explicit conduct” in
part as “actual or simulated—lascivious exhibition of the genitals or pubic
area of any person.”
Dauray and the government stipulated at trial to the facts that bear
upon this appeal. One stipulation provided that “[i] on or about May 13,
1994, Charles Dauray possessed the visual depictions which have been
introduced into evidence; and [ii] Charles Dauray was aware of the
contents of these visual depictions and thus he knew that genitalia of
minors appear in each of them.” A second stipulation was that the visual
depictions were transported in interstate commerce. The jury therefore had
only to decide whether the visual depictions showed “minorfs] engaging in
sexually explicit conduct,” i.e., whether they depicted the “lascivious
exhibition of the genitals or pubic area.” The jury found Dauray guilty, and
by special interrogatory specified the four of the thirteen pieces of evidence
that met the statutory definition.
The district court then considered Dauray’s pretrial motion, on which
the court had earlier reserved decision, to dismiss the indictment for failure
to charge an offense. Dauray argued that each of the four pictures specified
by the jury was in itself a “visual depiction” and therefore could not be
“other matter which contain any visual depiction.” Therefore, he reasoned,
the indictment failed to charge an offense. The district court concluded that
the pictures Dauray possessed were “other matter” within the plain
meaning of § 2252(a)(4)(B), and for the same reason denied Dauray’s
request to apply the rule of lenity.
Dauray was sentenced on April 30, 1999 to 36 months of
imprisonment, followed by three years of supervised release, and a $50
special assessment.
68__________ Basic Principles of the Criminal Law________ Ch. 1

DISCUSSION
The statute under which Dauray was convicted has since been
amended. At the time, the statute provided in pertinent part:
(a) Any person who—
(4) ...
(B) knowingly possesses 3 or more books, magazines, periodicals,
films, video tapes, or other matter which contain any visual
depiction that has been mailed, or has been shipped or
transported in interstate or foreign commerce, or which was
produced using materials which have been mailed or so shipped
or transported, by any means including by computer, if—
(i) the producing of such visual depiction involves the use of a
minor engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct;
shall be punished as provided in subsection (b) of this section.
18 U.S.C. § 2252(a)(4)(B) (1994) (emphasis added).
The question presented on appeal is whether individual pictures are
other matter which contain any visual depiction” within the meaning of
§ 2252(a)(4)(B). This question of first impression is one of law, which we
review de novo.
Notwithstanding diligent efforts to construe § 2252(a)(4)(B), we
conclude that it can be read either to support or to defeat this indictment.
We therefore apply the rule of lenity to resolve the ambiguity in Dauray s
favor.

I.
A. Plain Meaning.
Our starting point in statutory interpretation is the statute’s plain
meaning, if it has one. Congress provided no definition of the terms other
matter or contain.’ We therefore consider the ordinary, common-sense
meaning of the words.
Among the several dictionary definitions of the verb “to contain,
Dauray presses one, and the government emphasizes another, (i)
contain means to have within: hold.” Webster’s Third New Internationa
Dictionary 491 (unabridged ed.1981). Dauray argues that a picture is not
a thing that contains itself. Thus in the natural meaning of the word, a
pictorial magazine contains” pictures, but it is at best redundant to say
that a picture contains a picture, (ii) “To contain” also means “to consist
of wholly or in part: comprise; include,” id., and the government argues
that each underlying piece of paper is “matter” (as opposed perhaps to anti
Sec. G Statutory Interpretation 69

matter) that contains the picture printed on it. It is also possible, applying
this latter meaning, to say that each picture, composed of paper and ink, is
matter that contains its imagery.
The district court assumed that Congress meant to employ both
meanings. The district court thus recognized that one critical word of the
statute lends itself to (at least) two meanings, only one of which can sustain
the conviction, but then assumed, without resort to tools of construction,
that the statutory language was drafted to support every meaning that
would impose punishment. Resort to tools of construction is necessary in
this case, however, to decide whether the language used gave adequate
notice that this defendant’s conduct was forbidden by this statute.
The plain meaning of another critical term—“other matter”—is also
elusive. The dictionary defines “matter” as “the substance of which a
physical object is composed.” Webster’s Third New International
Dictionary 1394. Everything is more or less organized matter (as Napoleon
observed). But Congress employed “matter” in a specific context, as the
final, general term at the end of a list. We must “consider not only the bare
meaning of the word but also its placement and purpose in the statutory
scheme. ‘[T]he meaning of statutory language, plain or not, depends on
context. ’ ” Other courts have construed “other matter” in § 2252(a)(4)(B)
as “simply something which, at a minimum, must be capable of containing
a visual depiction.” These definitions are unhelpful for our purposes.
There is no doubt that a pictorial magazine is “matter” that “contains”
visual images. But no court that has construed § 2252(a)(4)(B) has
considered whether a loose photograph clipped from such a magazine is
itself “matter” that “contains” a visual image. The First Circuit recently
held that a single negative film strip containing three images constituted
only one piece of “matter” under § 2252(a)(4)(B). The court noted that
“[h]ad Congress meant for the number of images to be the relevant
criterion, it would have likely stated as much.” The case concerned the
character of singular “matter” containing multiple images, not whether
each image—if loosed from the container—could itself constitute prohibited
“matter.”
Every other case that construes the term “other matter” has involved
whether an individual computer graphics file is a “matter.” These cases
consider whether a computer file has the capacity to “contain a visual
depiction,” whether the general term “other matter” extends the statute’s
prohibition to a medium that is unenumerated in the list (and unlikely to
have been thought of when the statute was drafted), and whether the
proper analog to a graphics file is a page in a book or a book in a library.
These cases have no evident bearing on whether a single magazine (which
it was no crime to possess at the time of Dauray’s arrest, no matter how
70 Basic Principles of the Criminal Law Ch.i

many pages and pictures it contained) can become prohibited material

simply by detaching the staples that bind the pages. * * *
B. Canons of Construction.
Because the government and Dauray each rely on a reasonable
meaning of § 2252(a)(4)(B), we resort to the canons of statutory
interpretation to help resolve the ambiguity.
1. Lists and Other Associated Terms. Two related canons inform our
analysis of the meaning of “other matter.” First, the meaning of doubtful
terms or phrases may be determined by reference to their relationship with
other associated words or phrases (noscitur a sociis). Second, “where
general words follow a specific enumeration of persons or things, the
general words should be limited to persons or things similar to those
specifically enumerated” (ejusdem generis). In this case, “other matter”
should be construed to complete the class of items or things in the list
preceding it, namely “books, magazines, periodicals, films, [or] video tapes.”
Dauray argues that the listed items form a category of picture
containers that can enclose within them multiple visual depictions.
Because a picture taken from a magazine is not itself a picture container,
like books or magazines, but is rather a thing abstracted from its container,
Dauray contends that a picture in itself cannot be considered “other
matter’ within the meaning of the statute, and that possession of three of
them is not prohibited.
But these canons equally support the government’s argument. The
list at a sufficient level of generality, and completed by the catch-all
other matter —can be read to include any physical medium or method
capable of presenting visual depictions. A picture cut from a magazine,
considered as paper and ink employed to exhibit images, can be said to
contain an image or as many images as can be perceived in a picture or
photograph, which depends on how one looks at it.
2. Statutory Structure. “[A] statute is to be considered in all its parts
when construing any one of them.” The Protection of Children Against
exual Exploitation Act contains four substantive subsections (of which
§ 2252(a)(4) is one): § 2252(a)(1) prohibits the interstate transportation of
C j Porno^raP^y> § 2252(a)(2) prohibits the receipt or distribution of
an § 2252(a)(3) prohibits its sale or possession with intent to sell. Only
§ 2252(a)(4) specifies that the conduct forbidden involves “books.
magazines, periodicals, films, video tapes or other matter which contain’
the pornography. The others more simply forbid “any visual depiction”
c pornography, period. Dauray and the government both find support
in this statutory structure.
According to Dauray, the different drafting demonstrates thrt
Congress knew how to prohibit the possession of individual pictures if
Sec. G Statutory Interpretation 71

wanted to do so. The plain language of the other sections—each of which

targets “any visual depiction”—is such that if Dauray had transported,
distributed or sold the pictures he merely possessed, he would have
violated the law unambiguously.
But the government could argue: that the transport, distribution and
sale of child pornography are most harmful to children, and were therefore
prohibited regardless of the medium or number of visual depictions; that
Congress did not want to cast so fine a net in the context of mere possession
in order to assure that the accidental possessor of one piece of pornography
avoids liability while the collector does not; and that Congress
implemented the distinction by punishing only persons who possess a
threshold number (three) of anything that contains pornographic images,
i.e., “books, magazines, periodicals, films, video tapes or other matter.” If
the statute simply read “3 or more visual depictions,” then the accidental
possession of one pictorial magazine could violate the statute. The
difference between the language in § 2252(a)(4) and the other subsections
is therefore (according to this view) fully consistent with a congressional
intent to punish the possession of three or more individual pictures,
postcards, posters, still frames, or even fragments of magazine pages.
3. Statutory Amendment. A statute should be construed to be
consistent with subsequent statutory amendments. In 1998, Congress
amended the statute by replacing “3 or more” with “1 or more” of the same
list of “books, magazines, periodicals, films, video tapes or other matter.”
At the same time, Congress established an affirmative defense for a
defendant who could show that he possessed “less than three matters
containing” child pornography and “promptly and in good faith . . . took
reasonable steps to destroy” the pornography or report it to law
enforcement officials without disseminating it to others. According to the
government, the list, with its catch-all of “other matter,” is designed to
reach even an individual photograph. That could have been accomplished
without the list, however, by an amendment that simply prohibits
possession of “1 or more visual depictions.” Dauray argues with some force
that the list is superfluous post-amendment unless it serves to distinguish
a “container” such as a magazine, from its contents, such as individual
pictures cut from the magazine’s pages. The government on this appeal
makes no response to this argument, which is not to say that no response
can be made.
4. Avoiding Absurdity. A statute should be interpreted in a way that
avoids absurd results. Whichever interpretation one accepts, the statute
tends to produce absurd results. Dauray’s reading would prohibit the
possession of three books, each of which contains one image, but allow the
possession of stacks of unbound photographs. Equally absurd, the
government’s reading would prohibit the possession of three individual
12__________ Basic Principles of the Criminal Law_______ Ch. 1

photographs (unless they were mounted in a single album), but allow the
possession of two thick illustrated tomes.
C. Legislative History.
When the plain language and canons of statutory interpretation fail to
resolve statutory ambiguity, we will resort to legislative history.
Unfortunately, “[examination of [§ 2252’s] legislative history . . . reveals
no insight as to what Congress intended the precise scope of ‘other matter
to be.” * * *
II.
Due process requires that a criminal statute “give fair warning of the
conduct that it makes a crime.” “[B]efore a man can be punished as a
criminal under the Federal law his case must be ‘plainly and unmistakably
within the provisions of some statute.” The rule of lenity springs from this
fair warning requirement. “In criminal prosecutions the rule of lenity
requires that ambiguities in the statute be resolved in the defendant’s
favor.” This expedient “ensures fair warning by so resolving ambiguity in
a criminal statute as to apply it only to conduct clearly covered.”
But “[b]ecause the meaning of language is inherently contextual,” the
Supreme Court has “declined to deem a statute ‘ambiguous’ for purposes of
lenity merely because it was possible to articulate a construction more
narrow than that urged by the Government.” “Instead, [the Court has]
always reserved lenity for those situations in which a reasonable doubt
persists about a statute’s intended scope even after resort to ‘the language
and structure, legislative history, and motivating policies’ of the statute.
It is a “doctrine of last resort.”
Here, we have done what we can. We have read the plain language of
§ 2252(a)(4)(B), considered the traditional canons of statutory construction,
looked for legislative history, and canvassed potentially relevant case law.
And we are left with no more than a guess as to the proper meaning of the
ambiguous language here.
While it is true that “our role as a court is to apply the provision as
written, not as we would write it,” the statute’s ambiguity makes it
impossible for us to apply the provision in this case without simply
guessing about congressional intent. Indeed, the government conceded at
oral argument that Dauray would not have violated the statute had his
pictures been found in a photo album rather than in an unbound stack-
The government did not show that the pictures at issue were taken
from more than a single magazine. At the time of Dauray’s arrest, the
statute did not forbid possession of such a magazine. Nor did the statute
give Dauray notice that removing several pictures from the magazine, and
keeping them, would subject him to criminal penalties. This result is
Sec. G Statutory Interpretation 73

unconstitutionally surprising. Under these circumstances, we must apply

the rule of lenity and resolve the ambiguity in Dauray’s favor.
CONCLUSION
For the foregoing reasons, the judgment is hereby reversed.
Katzmann, Circuit Judge, dissenting.
I respectfully dissent from the majority’s well-argued opinion. I would
not apply the rule of lenity in this case. In Muscarello v. U.S., the Supreme
Court stated that the “simple existence of some statutory ambiguity ... is
not sufficient to warrant application of that rule, for most statutes are
ambiguous to some degree.” The Court continued: “To invoke the rule, we
must conclude that there is a grievous ambiguity or uncertainty in the
statute.” I do not think that there is such a “grievous ambiguity or
uncertainty” in the statute before us, or that we can make “no more than a
guess as to what Congress intended.” The statute requires that the visual
depiction be contained within books, magazines, periodicals, films, video
tapes, or other matter. The word “contain” in the statute, consistent with
its purposes, could mean both “comprise” and “hold” and still, in my view,
not lead to “grievous ambiguity or uncertainty.” Nothing in the statute
itself or in the legislative record suggests that Congress did not intend to
use both ordinary meanings of the word “contain.” It makes sense, given
the statute’s purposes, that a photograph could be understood—quite
naturally—to “contain” a visual depiction.
I fully agree with the majority that the statute could result in some
incongruous interpretations. But in the end, I conclude that we must “apply
the provision as written, not as we would write it.”
44___________Basic Principles of the Criminal Law_________ Ch. 1

the Group; it had no staff worthy of the name. The Group did not have
funds which it might legitimately use for operating expenses and, by
inadvertence or misconduct of an individual, dip into other funds which it
was obligated to hold on deposit; it had no funds whatever, other than the
deposits. Occasional, incidental or partial misrepresentation or
misappropriation by one officer of a corporation may be unimpressive as a
basis for imputing knowledge to another officer; but total
misrepresentation of the corporate affairs and total diversion of funds is
substantial ground for an inference of knowledge on the part of an active
and experienced president. The jury might fairly and legitimately infer as
a fact from the proven facts that Curley knew of the wrongs being
committed. As we have said, if he knew, his proven activit ies with and on
behalf of the Group might fairly lead, if not compel, reasonable men to
conclude that he must necessarily have been a participant in the plans of
the Group. It cannot be said that upon all this evidence reasonable minds
must necessarily doubt that Curley was a participant in the activities of
the Group. * * *
The decision in the case rests squarely upon the rule of law governing
the action of the trial judge upon the motion for directed verdict of acquittal
and the action of an appellate court upon a verdict of conviction. We agree,
as Curley contends, that upon the evidence reasonable minds might have
had a reasonable doubt. As much might be said in many, if not in most,
criminal cases. The jury, within the realm of reason, might have concluded
that it was possible that Curley was merely a figurehead, that he had
complete faith in Fuller, that he never asked any questions, that he was
never informed as to the contents of contracts with customers or the
financial statements or the use of the money; in short, that it was possible
that he was as much put upon as were the customers. If the jury had
concluded that such was a reasonable possibility, it might have had a
reasonable doubt as to guilt. But, as we have stated, that possibility is not
the criterion which determines the action of the trial judge upon the motion
for directed verdict and is not the basis upon which this court must test the
validity of the verdict and the judgment. If the evidence reasonably permits
a verdict of acquittal or a verdict of guilt, the decision is for the jury to
make. In such case, an appellate court cannot disturb the judgment of the
jury. If we ourselves doubted Curley’s guilt, that doubt would be legally
immaterial, in view of the evidence and the rule of law applicable. However,
we think it proper to add, under the circumstances of the case, that to us,
as to the jury, there is no doubt. * * *
Affirmed.
Wilbur K. Miller, Associate Justice (dissenting).
It is my view that the jury should have been instructed to find the
appellant, James M. Curley, not guilty. The wrongs were done by Fuller.
Sec. E The Role of Counsel 45

Curley made no representations to anybody. He did not participate in

negotiations with customers. He signed no letters, executed no contracts.
He did not know of the brochure or the financial statement. He received no
money or other thing of value. All this is admitted, even recited, in the
court’s opinion.
Whether Curley was guilty depended therefore, on whether he knew
of the wrongful acts being committed in the name of the Group. That, the
court correctly says, is the crucial question with respect to him. There was
no criminal intent if he did not know. If he knew, then it would follow that
he had become a conspirator with Fuller. But the evidence of knowledge
must be clear, not equivocal.
It is true, of course, that whether Curley had knowledge of Fuller’s
wrongdoing could not be proved directly, but could only be inferred from
what Curley did. Nevertheless, the presumption of innocence insists that
there be no equivocation in that proof. As always, it must convince beyond
a reasonable doubt. If it be not of that quality, if it be not clear but
equivocal, then the jury must not be permitted to speculate that the
defendant is guilty. * * *
To prove guilt beyond a reasonable doubt does not mean merely to
prove certain facts which are as consistent with innocence as guilt. To me
the expression means to submit evidence which produces in the minds of
the jurors an abiding and conscientious conviction, to a moral certainty,
that the accused is guilty. I am aware of the fact that his classic paraphrase
of proof beyond a reasonable doubt by Chief Justice Shaw of Massachusetts
has been criticized of late, but I do not agree with the critics. Reasonable
doubt is not eliminated by evidence from which the jury may draw either
of two irreconcilable inferences. * * *

E. THE ROLE OF COUNSEL

American Bar Association

Ethical Standards for Defense and Prosecution Function

Ethical Standards for the Defense Function

Standard 4-1.2 The Function of Defense Counsel
(a) Counsel for the accused is an essential component of the
administration of criminal justice. A court properly constituted to
hear a criminal case must be viewed as a tripartite entity
consisting of the judge (and jury, where appropriate), counsel for
the prosecution, and counsel for the accused.
(b) The basic duty defense counsel owes to the administration of
justice and as an officer of the court is to serve as the accused’s
46 Basic Principles of the Criminal Law Ch. 1
counselor and advocate with courage and devotion and to render
effective, quality representation.
(c) Since the death penalty differs from other criminal penalties in its
finality, defense counsel in a capital case should respond to this
difference by making extraordinary efforts on behalf of the
accused. * * *
(d) Defense counsel should seek to reform and improve the
administration of criminal justice. When inadequacies or
injustices in the substantive or procedural law come to defense
counsel’s attention, he or she should stimulate efforts for remedial
action.
(e) Defense counsel, in common with all members of the bar, is
subject to standards of conduct stated in statutes, rules, decisions
of courts, and codes, canons, or other standards of professional
conduct. Defense counsel has no duty to execute any directive of
the accused which does not comport with law or such standards.
Defense counsel is the professional representative of the accused,
not the accused’s alter ego.
(f) Defense counsel should not intentionally misrepresent matters of
fact or law to the court.
Standard 4-1.6 Trial Lawyer’s Duty to Administration of Justice
(a) The bar should encourage through every available means the
widest possible participation in the defense of criminal cases by
awyers. Lawyers should be encouraged to qualify themselves for
participation in criminal cases both by formal training and
through experience as associate counsel.
(b) All such qualified lawyers should stand ready to undertake the
e ense of an accused regardless of public hostility toward the
accuse or peisonal distaste for the offense charged or the person
of the defendant.
Standard 4-7.7 Argument to the Jury * * *
( ) Defense counsel should not make arguments calculated to appeal
to the prejudices of the jury.
(b) Defense counsel should refrain from argument which would divert
the jury from its duty to decide the case on the evidence.
Ethical Standards for the Prosecution Function
Standard 3-1.2 The Function of the Prosecutor
nrn«pri>fCe °^- Prosecut°r is charged with responsibility for
prosecutions in its jurisdiction.
Sec. E The Role of Counsel 47

(b) The prosecutor is an administrator of justice, and advocate, and

an officer of the court; the prosecutor must exercise sound
discretion in the performance of his or her functions.
(c) The duty of the prosecutor is to seek justice, not merely to convict.
(d) It is an important function of the prosecutor to seek to reform and
improve the administration of criminal justice. When
inadequacies or injustices in the substantive or procedural law
come to the prosecutor’s attention, he or she should stimulate
efforts for remedial action.
Standard 3-3.4 Decision to Charge
(a) The decision to institute criminal charges should be initially and
primarily the responsibility of the prosecutor. * * *
(c) The prosecutor should establish standards and procedures for
evaluating complaints to determine whether criminal
prosecutions should be instituted. * * *
Standard 3-3.8 Discretion as to Noncriminal Disposition
(a) The prosecutor should consider in appropriate cases the
availability of noncriminal disposition, formal or informal, in
deciding whether to press criminal charges which would
otherwise be supported by probable cause; especially in the case
of a first offender, the nature of the offense may warrant
noncriminal disposition.
(b) Prosecutors should be familiar with the resources of social service
agencies which can assist in the evaluation of cases for diversion
from the criminal process.
Standard 3-3.9 Discretion in the Charging Decision
(a) A prosecutor should not institute, or cause to be instituted, or
permit the continued pendency of criminal charges when the
prosecutor knows that the charges are not supported by probable
cause. * * *
(b) The prosecutor is not obliged to present all charges which the
evidence might support. The prosecutor may in some
circumstances and for good cause consistent with the public
interest decline to prosecute, notwithstanding that sufficient
evidence may exist which would support a conviction. Illustrative
of the factors which the prosecutor may properly consider in
exercising his or her discretion are:
(i) The prosecutor’s reasonable doubt that the accused is in fact
guilty;
(ii) The extent of the harm caused by the offense;
48 BASIC PRINCIPLES OF THE CRIMINAL I. AW ClLl

(iii) The disproportion of the authorized punishment in relation to

the particular offense or the offender;
(iv) Possible improper motives of the complainant;
(v) Reluctance of the victim to testify;
(vi) Cooperation of the accused in the apprehension or conviction
of others; and
(vii) Availability and likelihood of prosecution by another
jurisdiction.
(c) A prosecutor should not be compelled by his or her supervisor to
prosecute a case in which he or she has a reasonable doubt about
the guilt of the accused.
(d) In making the decision to prosecute, the prosecutor should give no
weight to the personal or political advantages or disadvantages
which might be involved or to a desire to enhance his or her record
of convictions.

Standard 3-6.1 Role in Sentencing

(a) The prosecutor should not make the severity of sentences the
index of his or her effectiveness. To the extent that the prosecutor
becomes involved in the sentencing process, he or she should seek
to assure that a fair and informed judgment is made on the
sentence and to avoid unfair sentence disparities.

F. THE ROLE OF THE JURY

The jury plays an influential role in the criminal justice system.® The
Sixth Amendment to the U.S. Constitution guarantees that “in all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial
by an impartial jury.” This means that unless the defendant waives his or
her right to a jury trial and elects to be tried by a judge, his guilt or
innocence will be determined by a jury of twelve individuals.
Although the judge gives jurors detailed instructions on the law they
are supposed to apply to the case, the jury is not strictly obligated to follow
the law. If the jury acquits the defendant even in the face of overwhelming

• In the federal courts and in most state courts, the defendant is tried before a jury of
persons and the jury s verdict must be unanimous. If the jury cannot come to a unanimous verdict,
the judge will declare a mistrial due to a hung jury and the prosecutor may either re-file chaiges
or drop the case. Some states permit non-unanimous verdicts. Some states permit juries to e
comprised of fewer than twelve persons. The Supreme Court has upheld the use of non-unanimous
jury verdicts and juries of fewer than twelve persons. See, e.g., Apodaca v. Oregon, 406 U.S. 404,
92 S.Ct. 1628,32 L.Ed.2d 184 (1972), Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d
152 (1972). If, however, a six-person jury is used, its verdict must be unanimous. Burch v-
Louisiana, 441 U.S. 130,99 S.Ct. 1623, 60 L.Ed.2d 96 (1979).
Sec. F The Role of the Jury 49

evidence of guilt, the judge is not permitted to punish the jury, nor can the
judge overturn the jury’s not guilty verdict. The act of returning a verdict
contrary to law is called jury nullification.
A longstanding debate exists over whether jurors should be informed
of their power to nullify. On the one hand are individuals who, like the
members of the Fully Informed Jury Association (FI JA), believe that jurors
should be informed of their power to ignore the law so that justice can be
done in all cases, not simply in the cases in which a member of the jury
happens to know of the nullification power and tells his or her fellow jurors.
FIJA members have shown up on the steps of courthouses, passing out
leaflets informing potential jurors of their power to bring in a verdict of
conscience when they find that a law is objectionable, unjust or unfair.
On the other hand are individuals who believe that jury nullification
threatens the rule of law and invites chaos. According to these individuals,
if jurors feel they are free to reach any verdict they choose regardless of the
law, jury verdicts are likely to produce widely disparate treatment for
similarly situated defendants.
In 1995, law professor Paul Butler ignited a new debate in the
nullification arena when he suggested in the Yale Law Journal that African
American jurors should engage in racially based jury nullification in cases
involving African American defendants charged with non-violent crimes.
See Paul Butler, Racially Based Jury Nullification: Black Power in the
Criminal Justice System, 105 YALE L.J. 677 (1995). An excerpt from one of
Professor Butler’s subsequent writings as well as a powerful response by
Andrew Leipold follow People v. Williams, a case in which the California
Supreme Court had to decide whether a trial judge acted properly when he
discharged a juror who admitted that he was uncomfortable convicting an
18-year-old male defendant of statutory rape for having what the
defendant claimed was consensual sex with his 16-year-old girlfriend. If
the jury has the power to acquit even in the face of overwhelming evidence
of guilt, is it fair for a judge to discharge a juror who seems inclined to
exercise this power?

People v. Williams
Supreme Court of California
25 Cal.4th 441, 21 P.3d 1209, 106 Cal.Rptr.2d 295 (2001)

George, C.J.
* * * [T]he charges in this case arose from three incidents involving
defendant and his former girlfriend. Only the first incident is relevant to
the issue upon which we granted review.
At the time of the December 31, 1994, incident, defendant was 18 years
of age and his girlfriend, Jennifer B., was 16 years of age. Both defendant
880___________________Crime and Punishment______________ Ch. 14

frameworks and institutions may ultimately reshape the roles of key actors
in the criminal justice system, and may diminish or eliminate the role that
individual moral blame has long played in American crime and
punishment.

A. THE HISTORY AND TRENDS OF

PUNISHMENT IN THE UNITED STATES

The Crime of Punishment

David J. Rothman
The New York Review of Books, February 17, 1994n

[Rothman notes that the “penitentiary,” a place where prisoners would

reflect on their crimes and ultimately repent, was an American invention.]
In the 1820s and 1830s, American state governments were pioneers in
prison design; they built huge and expensive institutions that provided
each inmate with his own private cell, and sometimes, as in the
Pennsylvania Penitentiary, his own private exercise yard. The prison, by
excluding all corrupting influences and subjecting the inmate to steady
labor and a quasi-military routine * * *, would reform the deviant and
eradicate crime from the society. That this simplistic and utopian mission
failed to achieve its aims is not nearly as surprising as the influence it
exerted abroad. Alexis de Toqueville, it should be remembered, came to the
United States not to write Democracy in America but to report on American
prisons for the French assembly.
A second phase of prison reform took place in the opening decades of
the twentieth century. American states were the first to introduce
indeterminate sentences, under which the inmate was to serve, say, one to
five years; the actual time of release depended on the parole board’s
estimate of whether the offender had been rehabilitated. The prisons
introduced educational programs and psychological counseling and
dropped the insistence on isolation; ostensibly, life behind walls would
prepare inmates for life outside. Once more, European criminologists and
legislators came to study American methods and generally admired the
new measures.
But again the realities of prison life contradicted the reformers’ hopes.
Indeterminate sentences did not lead to “rehabilitation,” and visitors to
prisons could not ignore the overcrowding and brutality they found there
or the periodic riots that took place in them. * * * [L]eading reformers * * *
attributed these failures not to an inherent flaw in the design of the system
but to the incompetence of administrators, the ignorance of the guards, and

• From The New York Review of Books. Copyright © 1994 by David J. Rothman.
 The History and Trends of
Sec. A Punishment in the United States 881
the stinginess of the legislators. For the reformers, rehabilitation and
education continued to be altogether feasible goals of the prison system.
Beginning in the 1970s, and continuing to this day, an impressive
literature has discredited each component of this inherited prison system.
Foreign observers are appalled by current American prison conditions and
sentencing practices; they cannot believe that we could be so retrogressive.
* * * Human Rights Watch, having investigated prison conditions
throughout the world, found in the US “numerous human rights abuses
and frequent violations of the UN Standard Minimum Rules for the
Treatment of Prisoners.”
The most conspicuous sign of failure * * * is the heavy American
reliance on keeping people in prison. * * * [Rothman describes how by the
mid-1990s, the United States was the world leader in incarceration;
moreover, the prison population was growing at the fastest rate in the
world, states were spending more and more of their budgets on building
new prisons, and still the new capacity could not keep up with the demand,
resulting in vastly overcrowded conditions.]
The justice system is most troubling in its impact on minorities,
particularly on African Americans. [Rothman notes that by 1994, 57
percent of black men in Baltimore between the ages of eighteen and thirty-
five were either in prison or on probation or parole, out on bail, or being
sought on an arrest warrant. Blacks made up 48 percent of prison inmates,
as against 12 percent of the population.] * * *
Among the many reasons why so many blacks are in prison—including
high rates of unemployment and inadequate urban schools—none is more
decisive than the changes in the administration of criminal justice,
particularly the sentencing practices that have been adopted since the
1980s. During the 1970s, liberal reformers—myself among them—became
disillusioned with the principle that indeterminate sentences would
encourage greater justice in punishment. The dominant view, expressed in
many reports and studies, was that open-ended sentences adapted to the
personal characteristics of the offender—his education, jobs, marital state,
and so on—gave judges and parole boards the discretion to penalize blacks
and lower-class offenders more heavily than white, middle-class ones. The
reports also argued that rehabilitation programs were a sham. Not only
were they ineffectual, but they made imprisonment seem legitimate and
desirable. * * * Fostering the illusion that inmates were locked up for their
own good, rehabilitation made sentences of five, ten, and fifteen years
appear benevolent.
From this diagnosis came a proposed cure: encourage legislators to
enact fixed sentences, reduce the discretion of the judge to set the penalty,
and restrict, or even eliminate, the power of the parole board to determine
the moment of release. The aim was to let the crime and the previous
882 Crime and Punishment Ch. 14
criminal record of the offender dictate the punishment, without any
reference to the social characteristics of the criminal, including race,
gender, occupation, work history, etc. Sentencing guidelines, drawn up in
advance, would set the punishment within narrow ranges. In this way,
virtually all first-time burglars would get, for example, a sentence between
twelve and eighteen months, regardless of whether the burglar was white
or black, male or female, from the urban or rural part of the state, or
standing before a judge with a reputation for leniency or harshness.
The reformers were aware of the possibility that fixed sentences might
turn out to be even longer than indeterminate ones. They recognized that
longer sentences were the goal of the conservative and right-wing thinkers
who also advocated fixed sentences. Such conservatives argued * * * that
indeterminate sentences put offenders back on the streets too quickly.
Since the actual time served almost always turned out to be less than the
maximum provided in the original sentence, the criminal, they said, was
being prematurely released and allowed to return to a life of crime. When
“twenty-five years to life” turned out to be eight years, because parole
boards often released inmates at one-third the minimum sentence,
conservatives warned that the safety of society was being compromised.
Thus fixed sentences represented a long overdue return to “truth in
sentencing” which would make offenders serve out their time.
The oddness of the alliance did not weaken liberals’ enthusiasm. They
fully expected that the sentences indicated in guidelines would reduce the
severity of penalties, starting with less serious crimes, and they believed
that the number of prison cells available would limit the numbers put in
prison. * * *
Reformers also expected their legislators to vote in ways that would
cost the taxpayers less. Since prisons were expensive and becoming more
so because of court-ordered improvements, politicians, they believed, would
welcome a reduction in the number of prisoners.
Finally, reformers were attracted by the prospect that appointed
commissions, not individual judges or parole boards, would be setting the
scale of penalties. The advocates of commissions, it must be said, did not
spend much time discussing who would actually serve on them or how their
decisions would be translated into law or practice. Rather, they were
convinced that sentencing decisions should be removed from politics and
the criminal justice system insulated from popular pressures. Sentencing
commissions, like other administrative bodies (most notably, the Securities
Exchange Commission and the Food and Drug Administration), would, it
was thought, bring expertise and rational decisionmaking into bitterly
contested disputes over sentences. Once decisions on punishment were
removed from arbitrary judges, from overly conservative parole boards, and
from legislators trying to please constituents, prison time would be doled
 The History and Trends of
Sec. A___________ Punishment in the United States___________ 883
out more sparingly and alternatives to prison would be used more
frequently.
The reformers proved wrong on all counts. Fixed sentences were
introduced in the 1980s, both in the federal system and in roughly one third
of the states. But apart from a few jurisdictions (most notably Minnesota),
sentencing guidelines have increased the time served and have relatively
little effect on disparity in sentences. They have promoted prison
overcrowding and reduced the importance of judges in sentencing, while
giving more discretion to prosecutors. The distaste for rehabilitation has
also contributed to making prisons into human warehouses. If educational
and training programs are seen as futile, why should the state spend
money on them?
Hostility to indeterminate sentences also made it easier for the federal
government and the states to enact mandatory minimum statutes, which
inevitably increase the time to be served. Once decisions about punishment
became more mechanical—a matter of consulting a chart—and less
concerned about what would be a just sentence for a particular criminal,
mandatory minimum sentences seemed to have their own logic. * * *
Moreover, mandatory minimum sentences have greatly increased the
authority of prosecutors. In return for a guilty plea, they will indict on a
lesser offense which does not carry a minimum. And prosecutors continue
their discriminatory practices: far more often than blacks, whites get the
chance to plead guilty to lesser crimes and thereby receive sentences below
the mandatory minimums.
Why did the good intentions of the reformers lead to such punitive
results? Part of the answer is the changed political environment of the
1980s. Reagan and Bush were able to make crime and sentencing
procedures an issue that middle-class Americans could use to express their
frustrations not only with unsafe streets but with affirmative action and
the costs of welfare. Reformers also forgot * * * that many bond holders see
prisons not as a drain upon public resources but as a sound investment,
while some job seekers see them as a source of employment.
More important, reformers were wrong to think that sentencing
commissions would be insulated from politics. * * *
[Transferring authority from judges and parole boards to a
commission may make sentencing more of a political issue than it was
before. Outrageous crimes can be used as evidence to support long-term
changes in penal codes. In the past, a public outcry often affected a judge’s
behavior, and when there was a rash of robberies or a vicious child-abuse
case, the next person to commit such a crime often received a harsher
sentence in the hope of deterring future crimes. But when sentencing
commissioners and legislators feel they must show they are tough, the
repercussions go beyond an increased sentence for one highly publicized
884 Crime and Punishment Ch. 14
case and result, for years to come, in harsher penalties for entire categories
of crimes. The real problem * * * is that once sentencing becomes “a tool in
the hands of politicians,” we get “democratic crime control.” That is, there
are no Emits to punishment so long as those limits do not adversely affect
the majority.
Probably the most serious drawback of the 1970s reform program was
the failure to anticipate the prominence that would be given drug control,
the issue that now dominates criminal justice procedures. * * *
What is clear is that arrests, convictions, and imprisonment for drug
offenses, as distinguished from other crimes, have risen sharply, while
everyone agrees that the increases reflect a change not in street behavior
but in patterns of enforcement and punishment. Marc Mauer, the assistant
director of Washington, D.C.’s Sentencing Project, calculates that drug
arrests increased during the 1980s by 88 percent, and that [b\z the mid-
1990s] one out of every four prison inmates [was] serving time or awaiting
trial for a drug offense. * * * In New York City offenders sentenced for
possession or sale of drugs increased over 600 percent between 1983 and
1989, notwithstanding the increasing severity of prison sentences for drug
offenders during this period.
Drug law enforcement and punishment are aimed mostly at
minorities, and the “war on drugs” is in large part a war on blacks.
[Rothman reviews statistics under which, by the mid-1990s, despite similar
levels of drug use across racial groups, blacks were five times more likely
than whites to be arrested for drug offenses and among juveniles, blacks
were ten times more likely.] * * *
[The federal sentencing guidelines bill] that was signed into law by
President Reagan in 1984 had none of the nuances of the original proposal.
The earlier instructions to the commission to decrease the amount of time
served and not to overcrowd prisons were weakened. More important, the
commissioners were appointed by the President with William Wilkens, a
federal appeals court judge from South Carolina and a close associate of
Senator Strom Thurmond, as chairman. Under Wilkens’ leadership the
commission adopted Reagan’s rhetoric about “law and order” and “getting
tough with the criminal.” Its interpretations of the statute consistently
curtailed judicial discretion and made penalties more severe. The
commissioners ruled, for example, that sentences were to be meted out on
the basis of “real offense”—that is, what the offender had presumably done,
not what he had pleaded guilty to in bargaining with the prosecutor or been
convicted for in court.
In day-to-day practice, * * * the judge must consult a set schedule to
reach his sentence. He starts at the “base offense level,” say, burglary,
which has a score of 20, and then adds points to it on the basis of how the
crime was carried out. If the offender discharged a gun, he adds seven
 The History and Trends of
Sec. A Punishment in the United States 885

points. If the crime resulted in bodily injury, he adds two; if it was serious
bodily injury, another two. If $10,000 or less was stolen in the burglary, he
adds nothing. But if the sum was between $10,000 and $50,000, he adds
two, if more than $250,000 he adds three, and so on.
The judge then adds up the points and consults the guideline chart,
which has the offense level scores running down the left, and, running
across the top, six columns scoring the offender on the basis of his past
criminal record. So if the burglar fired a gun, caused serious bodily injury,
and made off with $300,000, he gets a score of 34; if this was his first
offense, his sentence must fall between 151 and 188 months. If he has a
long record, let us say IV on the scale of VI, his sentence must fall between
210 and 262 months.
The only two factors a judge may use to reduce the guideline’s sentence
are the offender’s “acceptance of responsibility,” i.e., by pleading guilty,
which can bring a modest reduction, and his willingness to provide
“substantial assistance” to the government, i.e., by turning state’s evidence
and implicating others, which can bring a major reduction. The judge may
not reduce sentence time because of the offender’s age, his employment
record, his having a stable family life, the fact that he has children at home
to suppori. or any other personal characteristic.
The impact of these guidelines [was] to increase the prison population
and the average time served * * * Sentences of probation have declined.
The guidelines have clearly elevated the prosecutor over the judge. Because
sentences are severe, offenders may be tempted to go to trial rather than
to plea bargain; to make certain this does not happen, prosecutors define
the “base offense” downward to bring about a reduction in penalty, and hide
their action so that the “real offense” on which the guidelines are set cannot
be known. Thus in return for a guilty plea, the prosecutor will agree to
charge the defendant with robbery without the use of a weapon, although
he carried a pistol. Defendants and their lawyers understand that judges
no longer control sentencing, bound as they are to the guidelines.b All the
real bargaining has to be done with the prosecutors.

b In 2005, the Supreme Court ruled in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738,
160 L. Ed. 2d 621 (2005), that the federal sentencing guidelines did not bind judges, but were only
advisory. For an examination of sentencing outcomes in this post-Booker period, see, e.g., Amy
Baron-Evans & Kate Stith, Booker Rules, 160 U. PA. L. REV. 1631 (2012). Baron-Evans and Stith
argue that the new discretion afforded judges under Booker has reduced racialized sentencing
disparities: “The gap in time served between black and white offenders was largest in 1994, at 37.7
months. It narrowed to 25.4 months in 2010, the smallest since 1992. Id. at 1690.