This is the final (for a while, anyway) in a series of posts on how the criminal law system ought to work.

Here’s our situation:

Meg, Beth, and Amy are all 22-year-old seniors in college; all live off campus, and all are five miles away from the Drunken Collegian bar, Meg to the East, Beth to the West, and Amy to the South. Each drives to the bar to meet and drink. None has any criminal record or traffic tickets.

Each enjoys cheery conversation and frilly rum drinks until closing time, when each take their respective cars to try to drive home. All have reached a blood alcohol level of 0.22%, which is techincally referred to as “blitzed.”

Meg drives home on the relatively vacant street toward her house. About a mile down, she sees a car stopped at a stop sign too late, and veers hard right to avoid it; she has no idea where she’s heading before she slams the wheel right. She ends up (appropriately) with her car through a the store window of Ubiquitous Liquors. The police come and arrest her.

Beth and Amy both drive separately to their respective homes on their respectively relatively vacant streets. Each sees a car stopped at a stop sign too late; each veers hard right onto the sidewalk, and each strikes and kills a 25-year-old woman before stopping just short of an entry to a Ubiquitious Liquors.

Beth’s victim is a married homeless advocate with two children, whose family wants nothing bad to happen to Beth. “One life has been destroyed, and we are confident that Beth can live an upright, upstanding life and has learned her lesson. Further harm to society is unnecessary, and we do not want her to serve any time. We believe 120 hours of community service would be the right thing.”

Amy’s victim is a single insurance adjuster. Amy’s victim’s parents want Amy prosecuted for murder (a highly unrealistic outcome.) Amy’s victim’s family want Amy incarcerated for as long as possible; they want her in for as long as their daughter is dead. “My daughter deserves to be alive. This woman had no mercy when she got in the car, and she deserves nothing but eons of prison.”

Questions:

1. Assume that the fact that a person was or wasn’t there in these scenarios is entirely luck. Should the friends be treated differently due to the different result? Why, or why not?

2. Should Amy and Beth be treated identically? Why, or why not?

If you’d like to discuss specific sentences, each faces a hefty fine. Meg’s exposure is two days to 120 days actual time, though she will likely be eligible for an alternate work program or other non-jail jail. Beth and Amy face up to five years actual time in prison. As with the others, feel free to ignore the actual California law to discuss whatever sentence you think is just.

Thanks for participating everyone! If there are any other criminal law subjects you’d like hit, let me know in the comments.

–JRM

[by Justin Levine]

This weekend marks the 40th anniversary of the start of the Zodiac killings – one of the most confounding, unsolved serial killer cases in the annals of American crime.

The San Francisco Chronicle has a great page dedicated to the case, and all of their original news coverage of it through the years.

Fascinating stuff – check it out.   Also check out the movie, which I think remains a masterpiece, even though it largely concentrates on a suspect who may not have been guilty of the murders in actuality.

In my post a couple of days ago, I asked about two situations and asked whether they should be crimes.

The first was a situation where a stoned lookout got his burglarizing buddy killed by not paying attention.

The second was when a rapist ineffectively attempted a rape and got shot for his troubles, despite an easy avenue of escape by the victim.

I got a lot of great, thoughtful comments.

In each case, the law differs in different jurisdictions. What the law should be is contested.

I’ll talk about California and other U.S. law, then talk about my own feelings. Let’s start with the first one:

What the law is: California’s law on this is a little messy. Felony-murder has been partially codified in Penal Code section 189. First degree felony murder is statutory; second degree felony murder is a judicial creation. (I don’t make the laws. I just enforce ’em.)

The basic rule of felony murder is that if you’re committing a crime, and something you or your accomplice does causes a death during that crime, you’re on the hook for murder. When you’re the getaway driver in the bank robbery, when the guard ends up dead, you’re on the hook.

California does not distinguish between whether the decedent is an innocent victim or an accomplice, but does distinguish based on how the death was caused. I believe that this would not be murder in California, as the victim was the shooter. (However, in an arson case where one of the arsonists lit himself on fire and burned death, his fellow arsonists went down for felony murder.)

State laws are widely different on this issue. In some states, dead accomplices are free all the time. In others (like Illinois, according to commenter nk) you’re good for deaths when the victim is the shooter and the accomplice is the decedent.

Side note: Commenter and law student aphrael left some comments that sent me down a path which (I hope) caused this analysis to be better than it otherwise would have. I am also away from my legal research tools, so if someone thinks I am wrong, let me know. I despise being wrong, but I especially hate continuing to be wrong.

My view: I think this is a very difficult area. The felony murder rule has been widely criticized generally, but I think that criticism is mostly unjustified. If you hang around with guys who like guns, you’re unlucky to go down for murder – but the guy who choked to death on his own blood was one hell of a lot unluckier.

I think that accomplice deaths of this sort should be manslaughter. If you help make dead people, you ought to be responsible, but accomplice lives should not receive the same protection as victim’s lives. I believe that my proposed compromise rule is not the law anywhere.

Case two is of the very sad potential rapist.

I tried to make the facts as clean as possible that the victim, Marie, had a full retreat available and was faced with lethal force.

What the law is: California imposes no duty to retreat, so if you’re in lethal danger, you can use lethal force, even if you can back off safely. Like almost all states, once a prima facie case of self-defense is made, the prosecution must prove it wasn’t self-defense beyond a reasonable doubt. Last I checked, Ohio and South Carolina were the only states that required the defendant to prove it was self-defense by a preponderance of the evidence.

If there’s no duty to retreat, Marie’s off the hook. If there is a duty to retreat, she’s guilty of a crime.

My view: I’m very comfortable with my conclusion that there should be no duty to retreat. Creating a duty to retreat places prosecutors in terrible positions: Do you really prosecute Marie? Really?

Once someone attacks you without provocation with lethal force, they’re on their own dime. If you require people to make showings that they could not retreat, that strikes me as an unnecessary further challenge to the victim. I don’t think we want to be in a position to second-guess a straight-up victim in this kind of situation.

This also serves as a mild further deterrent to the bad guys. That’s a good thing.

Tremendous comments once again; I may have a third (and probably last for a while) in this series on what criminal law should be, if I get it done before packing the stuff for the trip to the ‘rents.

–JRM