How to Define the Crime

Rethinking Criminal Law

by George P. Fletcher
Little, Brown, 898 pp., $18.50

George Fletcher has written a very important book which may receive less attention than it deserves. Most people are interested in crime and criminal trials but not in the criminal law. Exactly how someone was disemboweled yesterday is morbidly fascinating; that I may be mugged tomorrow is chilling. But the bounds of liability for conspiracy or the best way to formulate an insanity defense do not excite the public. This lack of attention to principles of liability and excuse is in part the negative side of the intense interest in constitutional issues of criminal procedure.

In the 1960s a busy (some would say hyperactive) Supreme Court called up every aspect of police and prosecutorial behavior for scrutiny, often condemning existing practices and setting new standards for the protection of suspects and defendants. This swift transformation of the guidelines for investigation and trial captured the mood of a society that was properly preoccupied with concepts of equality. A remarkable side effect was that criminal law practice in the United States has to a substantial extent become the practice of constitutional law. In American law schools the time devoted to the constitutional examination of the criminal process now exceeds that given to the criminal law itself.

Admirable and overdue as the reforms in criminal procedure were, the concentration on constitutional rights threatens to become singleminded. Lack of intellectual interest in questions of responsibility has led to a generally crude and inert criminal jurisprudence. Since the work of the American Law Institute in producing the Model Penal Code with its valuable Commentary in the 1950s, little important writing appeared in the United States on criminal law theory until Fletcher’s book.

This neglect is damaging, for American criminal law now stands in a critical place. While new statutes and proposed revisions expand federal jurisdiction, the pressure of prosecuting organized crime figures and powerful narcotics dealers has led to a dangerous looseness in the federal understanding of elements of liability. Some examples from the crime of conspiracy show how the federal courts have released a sprawling set of crime-expanding concepts.

Those who commit a crime by acting together will find themselves guilty not only of the completed crime but also of conspiracy—for which they may receive additional punishment. This is hard to justify. Those who conspire may be dangerous enough for the law to notice even if they have not yet carried out their plan. But it is much less clear that, having committed the crime, they merit an increment of punishment for having agreed to do it. Conspiracy breeds offenses even more magically for it may make one guilty of crimes one did not commit. The federal Pinkerton1 rule says that a conspirator is guilty of offenses committed by co-conspirators as long as they are foreseeable consequences of the agreement. So, as in the Pinkerton case, a conspirator already in jail may be liable for crimes committed by his colleagues after his imprisonment. In narcotics cases the spatial and temporal concepts of a conspiracy have been extended to embrace persons at extreme ends of a tenuous chain who have no notion of each other’s existence. Their characterization as members of one conspiracy makes each, under the Pinkerton doctrine, liable for all the offenses committed by the others.

If the enlarged understanding of conspiracy spawns this intimidating progeny even under well-established criminal statutes, it lets loose a monstrous brood when it is grafted on to certain exotic new laws aimed at organized crime. One of the strangest of these is the 1970 act dealing with Racketeer Influenced and Corrupt Organizations (RICO).2 Aimed at preventing the infiltration of legitimate business by racketeers and tainted money, this expansively drafted statute makes it a felony punishable by up to twenty years in prison to be associated with the conduct of an interstate “enterprise” through a “pattern of racketeering activity.”

Since “enterprise” includes any group of people and “pattern of racketeering activity” means only the commission more than once of any offense from a large menu of state or federal crimes, astonishing results ensue. If two people acting together commit gambling offenses that extend beyond a state’s boundaries, they are no longer guilty only of state crimes carrying perhaps a little more than a year in prison but become federal RICO offenders and can go to jail for twenty years. Their very acting together makes them an enterprise while the way that they act together amounts to a pattern of racketeering activity in their conduct of the enterprise. Here the concept of conducting an enterprise has taken on a fictitious existence quite removed from the avowed legislative purpose of protecting legitimate business from organized crime.

The RICO act can also alchemically transform modest federal misdemeanors into felonies. For example, a labor union officer who takes money from an employer is guilty of a misdemeanor punishable with up to a year’s imprisonment. But since this offense appears on the RICO list, to do it twice constitutes a felony punishable with twenty years imprisonment. Piling pyramids on pyramids, some federal courts have developed misshapen theories of a conspiracy to commit a RICO offense—a conclusion that can only be reached with the use of mirrors. Suppose two people have agreed to cooperate together to organize interstate gambling in a way that would be criminal, although they have not yet succeeded in carrying out their purpose. Under RICO conspiracy theory they have agreed to form themselves into an enterprise and to participate in that enterprise through a “pattern” of racketeering activity. If they had actually committed the gambling offenses they would be guilty of both the completed RICO offense and a conspiracy to commit it and so would be liable to a forty-year federal sentence.

Only the poverty of criminal law scholarship can account for the practically unnoticed passage and application of such grotesque laws. Among the many merits of Fletcher’s Rethinking Criminal Law are his careful questioning of our conspiracy laws for imposing liability before criminality is sufficiently manifest and his attack on the Pinkerton doctrine for its confusion of theories of accomplice liability with civil law principles of agency. His book is the first general examination of the concepts of criminal law theory by an American jurist since Jerome Hall’s General Principles of Criminal Law in 1947. Its diligent and sophisticated treatment of basic questions is greatly enriched by the author’s extensive knowledge of foreign systems, particularly the German.

According to Fletcher (here following German theory) criminal liability is a conjunction of wrongdoing with “attribution.” Wrongdoing consists of the concurrence of the elements of the offense, as defined in the statute, with an absence of justification. Attribution means that in addition to the absence of justification there is an absence of excuse. So justification eliminates the notion of wrongdoing while excuse does not, though it is a sufficient reason for not entering a judgment of conviction. An example will clarify this. If I kill X in self-defense, my act is justified and there is no wrongdoing. But if I kill X while under the reasonable but mistaken belief that I must do so to prevent him from making a murderous attack, I am not justified in what I did. A wrong has been committed. However, since my belief was reasonable, I should be excused and acquitted. If my belief were unreasonable I should be found guilty of some degree of homicide based on negligent life-endangering conduct.

Some elements of criminal guilt, particularly the identification of prohibited acts, are peculiarly the concern of the legislature, for it is a representative body with a mandate to decide what conduct is to be forbidden. Even here, and especially in America with its entrenched constitutional guarantees, principles of justice may impel the courts to trim the expression of legislative will. But it is in attribution, where we deal with the proper boundaries of excuse, that Fletcher believes the courts have a special responsibility to expound criminal law as a moral system, one that can be distinguished from mere social control. Judges, he argues, must accept or reject the excuses proffered for criminal acts by referring to moral principles that are independent of particular legislation.

Our courts sometimes fail in this task. Even the Supreme Court, which is often so subtle in its opinions on constitutional issues, can write with a dismal lack of perception on basic questions of culpability and excuse. In United States v. Freed3 the Court held that the defendants could be convicted of possessing unregistered hand grenades under a statute where the duty to register was placed on the person who transferred ownership of the grenades rather than on the defendants. There was no need, the Court said, for the government to prove that the defendants knew that the grenades were unregistered, for, in words taken from an earlier case, conviction is proper in regulatory offenses “though consciousness of wrongdoing be totally wanting.” The Court’s conclusion is wrong, for consciousness of wrongdoing is not the relevant consideration. We may not care whether the defendants knew they were breaking a law but we ought to care about whether what they did was blameworthy. Suppose they were legitimate arms exporters who were innocently unaware that the manufacturers had failed to register the transfer in the proper manner. Should they not be allowed to prove this as a defense?

In so far as the Supreme Court decision in Freed can be interpreted to deny such a defense, it is an unfortunate repudiation of the moral notion of wrongdoing. Possession of hand grenades is not an everyday matter and we have a right to demand that those who possess them be very diligent to satisfy legal conditions. This is a far cry from saying that they should be liable no matter how diligent they may have been.

Lack of moral sensitivity in the elaboration of the principles of criminal law does not always lead to undue harshness to defendants. Lest these comments, and Fletcher’s book, be taken as only another plea for greater leniency it will be salutary to take a close look at a case where a mechanical application of analytical concepts resulted in a principle that would acquit the dangerous and morally blameworthy. This is the decision of the British House of Lords in Regina v. Morgan.4

William Morgan, a sergeant in the Royal Air Force, had been drinking with three much younger airmen. When they failed to find women companions, Morgan made the surprising suggestion that they should all go to his house and have intercourse with his wife. The young men were incredulous at first but Morgan assured them that his wife took pleasure in numbers and that they must not be troubled if she struggled a bit since she was “kinky” and this was the only way she could get “turned on.”

They went to Morgan’s house and pulled his wife out of a bed she shared with her eleven-year-old son, took her to another bedroom, and all four had intercourse with her. At their trial for rape the defendants conceded that Mrs. Morgan had resisted and that they had held her down. But they also said that they took her struggles to be only a part of the rape game that Morgan had claimed she enjoyed and that she had done and said many things to show her free participation in what a judge later called “a sexual orgy which might have excited unfavorable comment in the court of Caligula.” This evidence was in marked contrast to some of the statements they had made when arrested, which tended to show that there had been serious continuing resistance. It was also contradicted by Mrs. Morgan’s evidence, which was that she had screamed, called on her sons to send for the police, and had driven to the hospital and complained of rape immediately after the incident.

At the trial the judge directed the jury that the three young men could be found guilty of rape even if they mistakenly believed the woman was consenting, unless that belief was a reasonable one. They were convicted (as was Morgan), and appealed to the House of Lords on the ground that belief in consent ought to be a defense to rape even if the belief was unreasonably mistaken. The act of rape, their argument ran, is sexual intercourse with a nonconsenting woman. The corresponding mental element, necessary to establish guilt, must be knowledge of the absence of consent. What a reasonable man should have known is not the proper test, for this would result in convictions of people for being stupid or careless. Rape is too serious a crime to rest on that basis.

The House of Lords affirmed the convictions on the ground that the defendants’ story was clearly not believed by the jury and therefore no prejudice had ensued. But, on the great matter of principle involved, the House reversed the lower courts and, in a decision generally acclaimed by British law professors, held that a mistake about consent, even if unreasonable, is a good defense to rape. Many who are not law professors have expressed indignation at the decision. Their response is the sounder one.

Everyone is agreed that a reasonable mistake about a woman’s consent should negate liability for rape, though it is not easy to construct examples of reasonable mistakes. Perhaps the following invention will serve. X, playing a rather loathsome practical joke, tells Y (a woman) that a dangerous psychopathic killer has escaped from a nearby institution. He describes the killer in a way that exactly fits Z, a shy and harmless man, who, X knows, will shortly be calling on Y. When Z shows up at Y’s house she is terrified but hides her fright so as not to disturb him. Finding Y attractive, Z makes gentle erotic proposals to which Y, in well-concealed terror, yields. Z imagines that he has enjoyed a delightful consensual union. Y feels that she has been raped.

Here the reasonableness of Z’s belief should and does work as an excuse. We might perhaps put it by saying that Y has been violated but she has not been raped. But what if Z’s belief, as perhaps with Sergeant Morgan’s lonely hearts club, had been not only mistaken but unreasonably so? How, anyway, can a man be unreasonably mistaken about a woman’s consent especially when, as in a case like Morgan, she resists strongly so that there is no doubt that the intercourse is forcible? To be able to talk of an unreasonable mistake here it would seem that the faculties of the defendant would have to be dulled, perhaps by alcohol, or that he was an especially stupid or gullible person. The English court’s holding entails the position that even mistakes with such an origin will serve as a defense.

This misconceived judgment of the House of Lords, Fletcher argues, is conspicuously attributable to a rigidity in Anglo-American criminal law theory. For many years English jurists have been preaching that criminal guilt in serious offenses must rest on a mental condition of knowledge or intention with respect to all elements of the offense. Any mistake that deprives the defendant of this “guilty mind” must be recognized as a defense. The House of Lords had been so excoriated by English law professors for lack of fidelity to this principle in earlier decisions that in Morgan they fell meekly into line. But this theory is morally insensitive to the proper foundations of liability for violent acts.

Presumably in sexual contacts people do not often talk about consent. Consent is inferred from behavior, from the absence of resistance or coercive threats, and from positive actions that suggest cooperation. Where that is not the case, where the woman does resist and the intercourse has to be effected by force, the reliance on usual presumptions vanishes and there is a pressing social and moral duty to make careful inquiry that consent is present in spite of the contrary manifestations. Rape games may be innocuous if there is a clear, prior understanding that such a game is to be played, but it is culpably unreasonable to take a husband’s word for this when the wife by all her words and actions asserts the contrary.

To convict the defendants here would not be to punish them for making an unreasonable mistake but for behaving in an unreasonably dangerous and harmful way. It is a condition of social life that people should be blamed for harming others through gross imprudence unless they can demonstrate that some identifiable blameless condition made socially acceptable behavior impossible for them. Being drunk is not such an excuse, for drunkenness is self-induced and known to create risks of the very behavior that is condemned. Neither is being stupid and gullible such an excuse—indeed to attribute these failings to a person is only another statement of the very quality we find blameworthy. However, being mentally defective or retarded would be a defense, for these are sufficiently distinct and medically identified disabilities to exempt the person from standards that we can reasonably expect people to live up to.

In condemning the Morgan decision, Fletcher relies in part on the moral propriety of punishing grossly negligent behavior that causes injury. (He puts it well by drawing our attention to the important distinction between “feeling culpable” and “being culpable.”) But his subscription to the Germanic division of liability into elements of wrongdoing and attribution draws him into an unfortunately formalistic attempt to demonstrate the correctness of this conclusion.

Under this approach wrongdoing consists of committing a forbidden act in the absence of justification. If the accused, for whatever reason, did not understand that he was doing the very act that is prohibited, this will be a defense. So, if such a deception is imaginable, a man who mistakenly thought he was performing a sexual act on a dummy and not with a woman should be acquitted of rape, however we characterize his mistake. But when the mistake does not go to the forbidden act itself but rather to a justifying circumstance, the accused must make a stronger showing. He is excused only if the mistake is reasonable, perhaps because in this case he is doing an act that is prima facie forbidden.

To wrench the rape example into this analytical mold Fletcher has to advance the strange proposition that nonconsent is not part of the forbidden act of rape; rather all sexual intercourse is presumptively rape, and consent has to be shown as a special justification. It is, he suggests, for this reason that a mistake about consent must be reasonable to be a defense.

This surely defies ordinary experience of life. Sexual intercourse is not like killing, a terrifying and exceptional intervention that may be justified only after special explanation. Rather, sexual union is a normal, familiar, and enriching experience which only aberrationally becomes a crime when an element of pathology, the forcing of an unconsenting woman, is present. The common law has for this reason always properly placed the burden on the prosecution to show a lack of consent. Where such absence of consent is proved, the gross unreasonableness of the defendant’s lack of perception is properly seen as punishable. This does not follow from the special classification of consent as a justifying circumstance but rather from the special need to import standards of gross negligence with respect to all elements of crimes of grave injury to the person. Fletcher reaches the right answer here by a technique as wooden as that for which he castigates the English law professors when they argue for the wrong answer.

The great importance of Fletcher’s book is not easily exhibited in a short space, for its value is not so much in new concepts as in his patient and subtle analysis of many of the classic problems of criminal law. The conspiracy question and whether to punish for negligence are two of these. There are many others.

Why do we punish people for attempts to commit crimes? Is it because they have almost succeeded in doing something dangerous? Or could it be because they have shown themselves to be dangerous even without coming close to success in the particular endeavor? For example, should someone be convicted of attempted murder when success was impossible, as when the defendant put sugar in his intended victim’s coffee, thinking it was a deadly poison? What degree of participation is necessary to make a person an accomplice in a crime? Suppose that one knowingly furnishes services that are necessary for a crime to be committed but are easily procurable elsewhere, as when sugar is provided to illicit distillers or a telephone answering service to prostitutes.

How shall we solve tangles of causal contribution? Suppose a man, wishing to kill his enemy X in a desert, pours out all the water from X’s canteens, not knowing that an hour earlier another murderously minded character had replaced the water in the canteens with poison. Of what kind or degree of crime should they be guilty if X dies of thirst?

The nature of a criminal law system is ultimately shaped by the details of the reasoning that underlies the responses given to such questions. Fletcher’s work greatly enlarges the range of our vision in framing responses and his contribution comes at a critical time. For some years reform of federal criminal law has appeared imminent. The Report of the National Commission on Reform of Federal Criminal Laws was submitted in 1971 and, after considerable changes, was presented in the Senate as S.I. The bill made little progress and a new version was put forward in 1977 as S.1437. This was passed by the Senate after extensive amendments and the House is now considering the original version of S.1437.

While the various versions of the bill have contained some useful changes they have left major vices untouched. In the examples from the law of conspiracy with which this discussion began, the reform bill makes insignificant changes. The Senate bill preserves the crude Pinkerton rule making a conspirator guilty of co-conspirators’ offenses; and it leaves untouched the general nature of conspiracy as a threshold crime of agreement. RICO offenses remain, with the monstrous prospect of piggyback conspiracies clinging to them. The only notable improvement in the law of conspiracy under this bill is that it generally eliminates the possibility of cumulative sentences for a substantive offense and the conspiracy to commit it. But we badly need radical revisions of our criminal codes. Work of the quality of George Fletcher’s book is an indispensable condition for intelligent reform.

  1. 1

    Pinkerton v. United States, 328 US 640 (1946).

  2. 2

    Title 18 United States Code, Sections 1961–1968.

  3. 3

    401 US 601 (1971).

  4. 4

    Regina v. Morgan (1975), 2 Weekly Law Reports 923.