Assignment 5

Part I (your argument) due April 21

Part II (your rebuttal) due April 25

Please post your rebuttals as comment under the argument of the person whose argument you rebut.

Stanley Tookie Williams was an early leader of the ‘Crips’, a notorious American street gang which had its roots in South Central Los Angeles. He was convicted of three murders in 1979. While on Death Row in California, Williams became an anti-gang activist, he renounced his gang affiliation and apologized for the Crips' founding, while maintaining his innocence of the crimes for which he was convicted. He co-wrote children's books and participated in efforts intended to prevent youths from joining gangs. In late 2005, a campaign began to urge the Governor of California, Arnold Schwarzenegger, to grant clemency for Williams in consideration of his work as an anti-gang activist and asserted "redemption." Thousands of people signed online petitions calling for Schwarzenegger to commute the death sentence. Those who campaigned against the execution included celebrities, politicians, and Nobel laureates. In early November, 2005, Williams' attorneys filed his formal petition for executive clemency, as well as a motion to obtain new evidence. On December 12, 2005, Schwarzenegger denied clemency for Williams, and he was executed via lethal injection on December 13, 2005. 

Suppose you had to argue on behalf of Schwarzenegger, against clemency for Williams, or in defense of Williams’ request form executive clemency. Please check in the tables below for which side you are supposed to argue and whose arguments to rebut. Your argument should include reference to theories of punishment and reasons for or against capital punishment.

 

Against clemency:	rebuts arguments by
Sheneika D	Karen A
Austin P	Diana S
Andrew L	Gelicia S
Anthony K	Tshering P
Kanchan K	Danny C
Dr. Albrecht	Jairo J

 

In favor of clemency	rebuts arguments by
Karen A	Austin P
Diana S	Andrew L
Gelicia S	Anthony K
Tshering P	Kanchan K
Danny C	Sheneika D
Jairo J	Austin P

 

 

Comments on Kadish and the Voodoo case

Ad 1) Most of you correctly pointed out that according to the given definition (MPC 5.01) Victor could indeed be convicted of attempted murder of his wife. He has the intent to kill his wife, and by stabbing the doll he engages in an act he believes to result in her death. Note that this definition focuses on what the defendant believes to be the consequences of his action, and not the fact which result can or does actually occur. You should be aware that the MPC is a recommendation that may or may not be adopted as statute. In most States Victor would not be convicted because the law does not recognize that Victor’s act could possibly kill his wife. It does not make any difference if the wife dies, unless it can be proven that her death is in fact caused by voodoo (which is impossible).

Ad 2) For Kadish this case falls under “crimes of impossibility,” parallel to Kadish’s example of Moriarty shooting at a cutout resembling Sherlock Holmes. Kadish points out that in this case the actor has the intent to cause harm and acts in a way he or she believes to achieve the harm intended. The fact that the harm cannot possibly occur is not known to the actor, nor intended by the actor, nor in his control, but this is a lucky circumstance for the victim.

Ad 3) Kadish draws attention to the legal practice of inflicting lesser punishment if by chance the intended harm does not occur. Kadish emphasizes that in cases of attempts or impossible crimes the actor is acting with intent to succeed, hence he is responsible for the act in the same way as a person who achieves the intended result.  Here, Victor acts on his intention to kill his wife, so he does not really act any differently than a person who intends to kill his wife, aims a gun and pulls the trigger. Both have the intent and both act with intent, both believe that their action will cause death, and both do the best to succeed in their act. The difference is that Victor’s act cannot possibly cause the wife’s death. If the husband who shoots his wife causes the wife’s death, he will be charged with murder and receive a severe sentence. If he commits the same act, but by chance (and not due to his decision) the wife survives, he gets a lesser punishment, usually half. Most jurisdictions would give Victor either no punishment or the lesser punishment for attempt. Kadish claims that the difference in punishment is not related to the actor’s responsibility. Kadish argues that the doctrine is not rational, because it does not fulfil any of the purposes of criminal punishment, namely to be a deterrent (on a utilitarian basis) or to inflict just punishment (retribution). The unintended failure is in a way rewarded by the diminished punishment. So on both accounts, the purpose of deterrence and retribution, the doctrine is not “rationally defensible.”

Ad 4) Please note that throughout the article it appears as if Kadish wants to abolish the harm doctrine. He does not – he argues that though this doctrine is not rationally justifiable, it has intuitive appeal. He compares a parent’s punishment for a child that almost spilled milk with the punishment of a child that actually spilled milk. This is more obvious if you compare a teenager who almost crashed the family car (but the car has no scratch) with a teenager who actually crashed the family car, even if both cases were the result of the teenage driver texting while driving. Most likely the teenager who actually crashed the car would get the more severe punishment.

There are side discussions, which I picked up in some comments. Please look at my comment on Danny C’s blog for Kadish’s discussion of Nagel, my comment on Diana S’s blog for reference to People v. Dlugash, and my comment on Andrew L who brought up the concept of “lex talionis” (an eye for an eye).