Pinkerton Short-Circuits the Model Penal Code

I show that the Pinkerton rule in conspiracy law is doctrinally and morally flawed. Unlike past critics of the rule, I propose a statutory fix that preserves and reforms it rather than abolishing it entirely. As I will show, this accommodates authors like Neil Katyal who have defended the rule as an important crime fighting tool while also fixing most of the traditional problems with it identified by critics like Wayne LaFave. Pinkerton is a vicarious liability rule that makes conspirators criminally responsible for the foreseeable crimes of their coconspirators committed in furtherance of the conspiracy. It has two big problems: (1) Doctrinally, it breaks the logic of the many state criminal codes that are based on the Model Penal Code. (2) Ethically, it infringes the culpability constraint on the criminal law by imposing excessive punishments on defendants who did not even consciously suspect that their coconspirators would commit additional crimes that were not the object of the conspiracy. These problems are most acute in Texas, where Pinkerton can be combined with capital murder charges to produce automatic life without parole sentences. The Texas example is an extreme illustration of the problem of unintended consequences when state legislators tinker with the carefully drafted, interlocking provisions of a model code. The new statute I propose would put the penal code back in order and respect the culpability constraint. In the latter aspect, it is informed by leading work in philosophical ethics on blameworthiness and culpability

Implementasi Asas Lex Specialis Derogat Legi Generali dalam Sistem Peradilan Pidana

This study aims to assess and analyze the application of the principle of lex specialis the derogat legi generali in the Criminal Justice System related to the stages in the criminal justice process, and the form of the indictment in applying the principle of lex specialis the derogat legi generali. The method used is empirical juridical with descriptive analytical. The result shows that this principle is applied in criminal cases that violating the general and special criminal provisions in the Penal Code, the general criminal provisions in the Penal Code and special criminal provisions outside the Penal Code, as well as criminal cases that violating two special criminal acts outside the Penal Code. Regarding the fase of criminal procedure in handling the case under this principle, it is implemented in the adjudication process, using the subsidiarity or cumulative model of chargingPenelitian ini bertujuan untuk mengkaji dan menganalisis penerapan asas lex specialis derogat legi generali dalam Sistem Peradilan Pidana terkait dengan tahapan dalam proses peradilan pidana, dan bentuk surat dakwaan dalam menerapkan asas lex xpecialis derogat legi generali tersebut. Metode penelitian yang digunakan adalah metode yuridis empiris yang bersifat deskriptif analitis. Hasil penelitian memperlihatkan bahwa asas lex specialis derogat legi generali diterapkan dalam perkara pidana yang mempertemukan ketentuan pidana umum dan khusus dalam KUHP, ketentuan pidana umum dalam KUHP dan ketentuan pidana khusus di luar KUHP, serta perkara pidana yang mempertemukan dua atau lebih ketentuan pidana khusus di luar KUHP. Berkenaan dengan tahapan dalam sistem peradilan pidana, asas ini diterapkan dalam tahap adjudication, yang mengharuskan surat dakwaan dibuat dalam model subsidiaritas atau kumulati

The punitive turn in Spain. Is the welfare state able to resist it?

In recent years there is a tendency to carry out penal reforms in Spain very often, as it also happens in other countries. During its twenty years of existence, the Spanish penal code has already been modified more than 30 times, on an average of more than one penal reform by year. Most of them have increased punitiveness by widening the categories of crimes, raising the penalties, and making the penitentiary system less flexible, especially for some criminal offences, all leading to a very high prison population. Although there are no alarming crime figures in Spain and experts consider it appropriate to decrease punitive pressure in some areas, it seems that this could only happen for utilitarian reasons, within a context of economic crisis that makes it unsustainable to maintain such a high prison population. The investigation has shown that there are many processes and practices indicating that the law and order model is consolidating itself in the Spanish penal system, leading to a punitive turn. Nevertheless this process has a different intensity at each phase, being stronger at the legislative stage and softer in the penitentiary enforcement phase. One of the main conclusions is, therefore, that the designed instrument is ideal for measuring the degree of penetration of the model throughout the system. The most striking results of the research will be presented at the III Scientific Congress on the Law of The Philippines & Spain, and some proposals to resist the punitive turn will be made.Universidad de Málaga. Campus de Excelencia Internacional Andalucía Tech

Postpartum Psychosis: A Legitimate Defense for Negating Criminal Responsibility (Comment)

Part I traces the slaughter of children throughout history and literature, and reveals the functions and reasons behind the ancient practice of infanticide. Part II discusses the medical debate regarding the causes of postpartum psychosis. Part III evaluates the legal recognition of postpartum psychosis as a defense in terms of usage and success rates. Analyzing postpartum depression to determine whether it meets the legal test of insanity, it compares the English common law to the American perspective of infanticide. Four tests are examined in detail: the M'Naghten test, the American Law Institute Model Penal Code test, the "Irresistible Impulse" test, and the Durham or "Product" test. Part IV looks to the effects of gender on sentencing, and compares sentencing for maternal as opposed to paternal infanticides. It examines how mothers are punished under the Texas justice system. Postpartum psychosis is a gender-specific defense. Part IV determines whether gender is a relevant factor in the charge of murder, and examines the validity of postpartum psychosis as an "Excuse" defense, along with the partial defense of "Extreme Mental and Emotional Disturbance." Evaluating current Congressional bills regarding postpartum disorders, Part IV also addresses the Texas approach to postpartum psychosis, as related to mental illness through the Texas Mental Health Code and the Texas Penal Code. Part V advocates proposed approaches to the defense of postpartum psychosis by either changing the burden of proof or considering such a defense as a mitigating factor at sentencing, if not both; it advocates the possibility of manslaughter for infanticide and involuntary manslaughter for neonaticide. Lastly, the Texas Penal Code and proposed amendments are analyzed and compared to the "guilty but mentally ill" standard' of other states, as well as the Model Penal Code. Part V ultimately looks to various statutes-state, federal, and foreign-for possible answers to the puzzle of postpartum psychosis in Texas courts today

Revising the Model Penal Code: Keeping It Real

The thesis of this talk can be simply stated: In any serious discussion of revising the Model Penal Code (MPC), the object of the game cannot be revising the MPC itself. Rather, the object of any revision of the Code is to promote the reform of the nation\u27s actual criminal codes, as adopted by the state legislatures and Congress

Section 309(c) of the Clean Water Act: Using the Model Penal Code to Clarify Mental State in Water Pollution Crimes

Courts and commentators have struggled with interpreting the mental state requirement in modern regulatory criminal statutes, and the public welfare offense doctrine has been the focus of that confusion. The Supreme Court has relatively recently defined public welfare offenses as those, which a reasonable person would know are subject to strict public regulation, could threaten public health and safety, and relate to activities that are both dangerous and uncommon. Despite a relatively clear definition, practitioners and judges are left to determine which mental state word applies to each element of the regulatory offense and whether the offense falls within the public welfare offense category at all. Using the criminal provisions of the federal Clean Water Act in section 309(c) and its judicial interpretations as a guidepost, the author argues that Congress should redraft the federal regulatory criminal statutes using the Model Penal Code interpretative protocols and definitions. The author further argues that the government should have to prove some awareness of illegality under section 309(c) and offers a suggested amendment of section 309(c) using a Model Penal Code approach