Rethinking Criminal Law

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ISBN: 9780195136951 | 0195136950
Cover: Hardcover
Copyright: 6/29/2000

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This is a reprint of a book first published by Little, Brown in 1978. George Fletcher is working on a new edition, which will be published by Oxford in three volumes, the first of which is scheduled to appear in January of 2001. Rethinking Criminal Law is still perhaps the most influential and often cited theoretical work on American criminal law. This reprint will keep this classic work available until the new edition can be published.

Preface

xix

Table of Abbreviations and Short-Form Citations

xxv

Part I --- Rethinking Specific Offenses

(390)

The Topology of Theft

(56)

Introduction

(10)

Larceny and Embezzlement

(6)

Obtaining Property by False Pretenses

(3)

Points of Stress in the Topology of Theft

(17)

Receiving the Chattel with a Fraudulent Purpose

(3)

The Problem of Finders

(2)

The Problem of Mistaken Delivery

(2)

The Problem of Delivery from a Third Party

(4)

A Guide to Analyzing Theft Offenses

(2)

Custody Acquired at T1

(1)

Posession Acquired at T1

(1)

Title Acquired at T1

(1)

The Interests Protected by Theft Offenses

(29)

An Earlier Understanding

(4)

Larceny as a Crime Against Possession

(4)

Protecting Objects and Protecting Economic Interests

(10)

The Interests Protected in Punishing Fraud

(10)

Common-Law Larceny and Its Metamorphosis

(56)

Enigmas of the Common Law

(17)

Possessorial Immunity

(5)

Enigmas of the Common Law: The Carrier's Case

(4)

The Problem of Staged Larceny

(6)

A Theory for Resolving the Enigmas of the Common Law

(14)

Possessorial Immunity

(2)

Carrier's Case

(3)

Staged Larceny

(2)

The Rationale of Manifest Criminality

(2)

The Metamorphosis of Larceny

(13)

The King v. Pear

(4)

Reinterpreting the Tradition

(6)

The Intellectual Background

100

(3)

Judicial Expansion of the Common Law

103

(12)

Liability of Finders

104

(3)

The Problem of Mistaken Delivery

107

(3)

Legislative Consolidation

110

(5)

Two Patterns of Criminality

115

(120)

Abstracting from the History of Larceny

115

(7)

The Pattern of Manifest Criminality

115

(3)

The Pattern of Subjective Criminality

118

(1)

Maxims Common to Both Patterns of Liability

119

(3)

Related Theft Offenses

122

(9)

Embezzlement

122

(2)

False Pretenses

124

(1)

Burglary

124

(4)

New Offenses Akin to Burglary-Without-Breaking

128

(3)

Attempts

131

(66)

Two Doctrinal Issues in Attempts

135

(4)

Objectivist Approaches and the Theory of Attempts

139

(1)

Stages of Commission

140

(1)

The Criterion of Danger

141

(1)

Apprehension and Unequivocal Conduct

141

(5)

Manifest Criminality and Impossible Attempts

146

(3)

The Shooting Cases

149

(3)

The Poisoning Cases

152

(2)

The Empty Receptacle Cases

154

(1)

Receiving Stolen Property

154

(3)

A General Theory of Attempting

157

(9)

The Ascendancy of Subjective Criminality

166

(4)

The Principles Behind the Subjectivist Theory of Attempts

170

(4)

The Prospects of a Subjective Theory of Attempts

174

(10)

The Problem of Abandonment

184

(13)

Possession Offenses

197

(8)

Possession Offenses as a Form of Discretionary Social Control

202

(3)

The Overt Act in Treason

205

(13)

Compassing Death and Overt Acts

207

(6)

Overt Acts and Treason Under the Constitution

213

(5)

An Excursus on Conspiracy

218

(7)

Inconsistent Criteria of Inchoate Liability

220

(3)

The Requirement of an Overt Act

223

(2)

Stop-and-Frisk and Flirtations with Manifest Criminality

225

(7)

The Two Patterns of Criminality Revisited

232

(3)

Homicide: Three Lines of Liability

235

(106)

Toward a Third Pattern of Liability

235

(7)

Intentional Killings

242

(17)

Provocation

242

(8)

Diminished Capacity

250

(3)

Premeditation and Deliberation

253

(3)

Intention in Homicide

256

(3)

Homicide by Excessive Risk-Taking

259

(15)

Liability for Manslaughter

262

(2)

Liability for Murder

264

(10)

Formal Criteria of Liability

274

(47)

The Historical Background

276

(9)

The Misdemeanor-Manslaughter Rule

285

(2)

Tort Theory Points the Way

287

(3)

Felony-Murder in the Second Degree

290

(7)

Conflicting Rationalia for Curtailing the Second-Degree Felony-Murder Rule

297

(6)

First-Degree Murder: The Means Tests

303

(4)

First-Degree Murder: Felony-Murder

307

(12)

The Institutional Context of Formal Liability

319

(2)

Comparative Notes

321

(15)

Analogues to Manslaughter

322

(3)

The Standard Form of Criminal Homicide

325

(1)

Aggravated Homicide

326

(1)

The Motive of the Slaying

326

(2)

The Manner of Killing

328

(2)

Felony-Murder

330

(1)

Special Features of Continental Legislation

331

(1)

Killing on Request

332

(2)

Infanticide

334

(2)

Capital Homicide

336

(5)

The Jurisprudence of Homicide

341

(50)

The Uniqueness of Homicide

341

(17)

Blaming and Tainting

343

(6)

Omissions and Negligence

349

(1)

Interaction with the Victim and Culpability by Degrees

350

(5)

The Outer and Inner Circles of Liability

355

(3)

The Outer Circle of Liability

358

(21)

The Jurisprudence of Acting

358

(2)

The Jurisprudence of Causing Death

360

(2)

The Degree of Causal Contribution

362

(3)

The Victim Endangers His or Her Own Life

365

(1)

An Intentional Intervening Act by a Third Person

366

(6)

The Jurisprudence of Life and Death

372

(7)

From Desecration to a Pattern of Harmful Consequences

379

(12)

Desecration in a Secular Society

380

(5)

A Pattern of Harmful Consequences

385

(3)

The Three Patterns of Liability

388

(3)

Part II --- Rethinking the General Part

391

(486)

The Quest for the General Part

393

(122)

The Need for Synthesis

393

(2)

Some Preliminary Distinctions

395

(13)

Descriptive and Normative Uses of the Same Terms

396

(5)

Conceptual and Empirical Propositions

401

(5)

Analyzing Statutes and Explicating the Structure of the Criminal Law

406

(2)

Punishment and Its Rationale

408

(12)

On What Punishment Is

409

(5)

The Rationale of Punishment

414

(6)

The Concept of Acting

420

(19)

Acts and Omissions

421

(5)

Acts Contrasted with Conditions

426

(7)

The Teleological Theory of Action

433

(6)

The Concept of Intention

439

(15)

Intending and Desiring

440

(2)

Intention and Recklessness

442

(7)

Intending and Omissions

449

(1)

Intention in Ordinary Language

449

(3)

Intention and Motives

452

(1)

A Glossary of Intents

452

(2)

The Concepts of Wrongdoing and Attribution

454

(37)

Wrongdoing and Norms

456

(3)

Punishment and Wrongdoing

459

(2)

The Components of Desert

461

(2)

Defiance as Wrongdoing

463

(3)

On the Indispensability of Wrongdoing

466

(3)

On the Externality of Wrongdoing

469

(3)

Wrongdoing and Harm

472

(4)

Arguments for the Three German Theories

476

(5)

The Evidentiary Value of Harm

481

(1)

Harm and Remorse

482

(1)

Wrongdoing, Mistakes and Accidents

483

(8)

Tensions in the Theory of Attribution

491

(13)

The Descriptive Theory of Attribution

492

(3)

The Normative Theory of Attribution

495

(1)

Responsibility and Attribution

496

(1)

Guilt Without Attribution

497

(7)

Objectivity and Subjectivity in Criminal Theory

504

(11)

Utility and Objective Standards

506

(5)

Justice and Attribution

511

(4)

The Structure of Wrongdoing

515

(66)

Introduction

515

(1)

The Problem of the Burden of Persuasion

516

(16)

The Private Law Style

519

(5)

The Private Law Style in Criminal Litigation

524

(8)

The Revolt Against the Private Law Style

532

(20)

The Emergence of a Normative Theory of Guilt

532

(6)

The Borderland of Culpability

538

(1)

Insanity

539

(2)

Entrapment

541

(3)

Culpability and the Abandonment of Attempts

544

(1)

Politics and Policies in Allocating the Burden of Persuasion

545

(4)

The Burden of Persuasion as a Constitutional Issue

549

(3)

The Structure of Wrongdoing

552

(17)

Definition and Justification

555

(7)

On Norms and Privileges

562

(4)

On Distinguishing Between Norms and Exceptions

566

(3)

Due Process and Fair Warning

569

(6)

The Problem of Vagueness

570

(3)

Legislative Control over the Refinement of the Criminal Law

573

(2)

The Structure of Offenses: A Review

575

(6)

The Definition of the Offense

575

(1)

Wrongdoing and Justification

576

(1)

Culpability, Wrongdoing and Excuses

577

(4)

The Theory of Derivative Liability

581

(102)

The Concepts of Direct and of Derivative Liability

581

(4)

Derivative Liability for Omissions

585

(26)

Causation and Derivative Liability

588

(5)

An Alternative to ``But For'' Causation

593

(6)

Verbs of Interference and Causation

599

(3)

Liberty, Interference and Allocation

602

(4)

The Quinlan Case

606

(5)

Derivative Liability: The Criteria of Duty

611

(14)

The Personal Relationship Between the Defendant and a Dependent Person

611

(3)

A Community of Shared Risks

614

(1)

Contract and Undertaking

614

(4)

The Defendant's Creating the Danger

618

(2)

Statutory Duties

620

(2)

Duties To Control Third Persons

622

(1)

The Scope of Duties To Avert Harm

622

(3)

Derivative Liability for Omissions: Some Doubts

625

(9)

Conceptual Problems

625

(3)

Constitutional Arguments

628

(3)

Accommodations

631

(2)

Why Punish the Failure To Avert Harm?

633

(1)

Perpetrators and Accessories: Derivative Liability for Human Conduct

634

(15)

The Formal Basis of Liability

635

(1)

Causation

635

(1)

Intent

635

(2)

Direct Liability for Perpetration

637

(3)

Two Categories of Accessories

640

(4)

A Special Category of Instigation

644

(1)

Neighboring Concepts of Complicity

645

(1)

Accessories After the Fact

645

(1)

Conspiracy

646

(1)

Vicarious Liability

647

(2)

The Rationale for Differentiated Participation in Criminal Plans

649

(8)

Punishing the Accessory for the Perpetrator's Wrong

652

(2)

The Rationale for Categorically Mitigating the Accessory's Punishment

654

(3)

Specific Problems of Demarcation

657

(17)

Is the Person Who Culpably Executes the Deed Always a Perpetrator?

657

(2)

When Is a Conspirator a Co-perpetrator?

659

(5)

Accessories and Perpetrators-by-Means

664

(1)

F's conduct is wrongful but excused

664

(3)

F's conduct is justified and therefore not wrongful

667

(3)

F's act is formally legal

670

(1)

The Special Status of Instigators

671

(3)

Minimal Criteria for Accessorial Liability

674

(1)

Parties to Conspiracies

674

(3)

Minimal Facilitation

677

(6)

The Theory of Mistake

683

(76)

Introduction

683

(1)

What Mistakes Are About

684

(1)

Mistakes about elements of the definition

684

(1)

Mistakes related to justificatory claims

684

(1)

Mistakes about excusing conditions

685

(1)

Mistakes in cases of negligent risk-taking

685

(1)

Mistakes about elements extrinsic to culpability

685

(2)

Outcomes in the Analysis of Mistakes

687

(1)

Mistakes Negating Intent

687

(1)

Mistakes Negating Culpability

687

(3)

Irrelevant Mistakes

690

(1)

Arguments Favoring the Exculpatory Effect of Mistakes

691

(22)

Mistakes Negating the Required Intent

691

(7)

The Borderland of Definition and Justification

698

(9)

Requiring That Exculpatory Mistakes Be Reasonable

707

(6)

Strategies for Disregarding Mistakes

713

(23)

Mistakes Extrinsic to Wrongdoing and Culpability

713

(3)

Arguments for Strict Liability: Special Governmental Purposes

716

(7)

Arguments for Strict Liability: The Wrongdoer Runs the Risk

723

(7)

Arguments for Strict Liability: Mistakes of Law

730

(6)

Domesticating Mistakes of Law

736

(23)

The German Experience

737

(18)

The American Instrumentalist Rationale

755

(4)

The Theory of Justification and Excuse

759

(118)

Tensions in the Theory of Justification

759

(15)

The Interactional Effects of Justificatory Claims

759

(3)

The Problem of Putative Justification

762

(7)

Is There a Single Theory of Justification?

769

(1)

The Value of Autonomy

770

(1)

Acting in the Name of the Government

771

(3)

The Theory of Lesser Evils

774

(24)

Lesser Evils in the German Tradition: The Statutory Background

775

(4)

The Emergence of Extra-Statutory Necessity

779

(9)

The Emergence of Necessity as a Justification in Anglo-American Law

788

(4)

Limitations on the Privilege of Necessity

792

(6)

The Theory of Excuses

798

(19)

Excuses, Character and Desert

799

(3)

Excuses and Voluntariness

802

(5)

Compassion and Mercy in the Theory of Excuses

807

(3)

Do Excuses Amend the Law?

810

(3)

The Utilitarian Theory of Excuses

813

(4)

A Comparative Survey of Excuses

817

(38)

Necessity

818

(11)

Duress

829

(4)

The Synthesis of Duress and Necessity

833

(2)

Insanity

835

(1)

Is Insanity a Condition or an Excuse?

836

(3)

Is Insanity a Scientific Issue?

839

(4)

The Movement To Abolish the Insanity Defense

843

(3)

Intoxication

846

(6)

Inconsistent Duties

852

(3)

The Theory of Necessary Defense

855

(22)

Necessary Defense as an Excuse

856

(1)

Necessary Defense as a Variation of Lesser Evils

857

(3)

Necessary Defense and the Vindication of Autonomy

860

(4)

Disputed Points in the Theory of Self-Defense

864

(1)

The Duty To Retreat

864

(4)

Rights of Third Parties

868

(1)

The Culpability of the Aggressor

869

(1)

The Problem of Proportionality

870

(7)

Table of Cases

877

(8)

Index

885

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Rethinking Criminal Law

Summary

Table of Contents

Supplemental Materials