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Bad Acts and Guilty Minds: Conundrums of the Criminal Law

Bad Acts and Guilty Minds: Conundrums of the Criminal Law

by Leo Katz

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With wit and intelligence, Leo Katz seeks to understand the basic rules and concepts underlying the moral, linguistic, and psychological puzzles that plague the criminal law.

"Bad Acts and Guilty Minds . . . revives the mind, it challenges superficial analyses, it reminds us that underlying the vast body of statutory and case law, there is a rationale


With wit and intelligence, Leo Katz seeks to understand the basic rules and concepts underlying the moral, linguistic, and psychological puzzles that plague the criminal law.

"Bad Acts and Guilty Minds . . . revives the mind, it challenges superficial analyses, it reminds us that underlying the vast body of statutory and case law, there is a rationale founded in basic notions of fairness and reason. . . . It will help lawyers to better serve their clients and the society that permits attorneys to hang out their shingles."—Edward N. Costikyan, New York Times Book Review

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University of Chicago Press
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Studies in Crime and Justice
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Bad Acts and Guilty Minds

Conundrums of the Criminal Law

By Leo Katz

The University of Chicago Press

Copyright © 1987 The University of Chicago
All rights reserved.
ISBN: 978-0-226-42592-4


Necessity, the Mother of Invention

"O Oysters," said the Carpenter,
"You've had a pleasant run!
Shall we be trotting home again?"
But answer came there none—
And this was scarcely odd, because
They'd eaten everyone.
Lewis Carroll

The Speluncean Explorers

The murder case that came before the Supreme Court of Newgarth in the fall of the year 4300 presented problems that had not arisen within anyone's memory and for which not even the dustier volumes of the law reports offered any precedent. The four defendants had been tried and convicted in the Court of General Instances of the County of Stowfield for the murder of their traveling companion Roger Whetmore. In accordance with Newgarth's very succinct murder statute—"Whoever shall willfully take the life of another shall be punished by death" (N.C.S.A. [N.S.] Sec. 12-A)—they had been sentenced to death by hanging. They had appealed to the Supreme Court, and it was now up to the five justices to affirm or reverse the trial court.

The four defendants and Roger Whetmore were all members of the Speluncean Society, a group of amateur cave explorers and archaeologists. In May 4299 the five set out to explore the interior of a limestone cavern located in the Central Plateau. While the five men were probing the remote inner reaches of the cave, a powerful landslide shook the area. A barrage of massive boulders rained down in front of the cave and blocked its only exit. Although physically unscathed, the five explorers found themselves hopelessly immured in the rubble, with little more than a meager supply of water, wine, and dates to last them through the indefinite future.

The absence of the five men was soon noticed. Their families grew alarmed and called on the secretary of the society to undertake a search. It turned out that the explorers had left at the society's headquarters fairly exact indications of their whereabouts, and a rescue party was immediately sent out for them. But freeing them proved far from easy. The society's rescue party was no match for the primordial boulders. Heavy machinery had to be moved in from far away. A whole army of workmen, engineers, geologists, and other experts had to be assembled. Fresh landslides repeatedly intervened to make working conditions hazardous and progress slow. Ten workmen ultimately died in the rescue effort.

As the days wore on, the rescuers grew increasingly anxious that starvation might kill the explorers long before a passageway could be cut through the detritus. Though considered hardy souls, the explorers were known to have taken only scant provisions along, and limestone caverns rarely, if ever, contain any nourishing vegetable or animal matter. On the twentieth day, however, the rescuers learned by accident that the explorers had with them a portable wireless machine capable of sending and receiving messages. A similar machine was installed in the rescue camp and communication established with the imprisoned men. The prisoners turned out to be unexpectedly alert and remarkably rational and detached about their predicament. Roger Whetmore, the most experienced among them, did most of the talking. He asked how long it would take to liberate them. The engineers estimated it would take at least ten more days, provided no new landslides occurred. Whetmore then asked whether any physicians were present and was immediately put in touch with a committee of medical experts. He described to them with precision what was left of the sparse rations they had taken with them into the cave. Taking turns, each of the prisoners then described his physical condition. Finally, Whetmore asked for a medical opinion whether they were likely to survive the next ten days. Despite some initial reluctance to answer, the committee chairman admitted that there was little likelihood of that. The wireless machine then remained silent for eight hours. Finally, Whetmore's voice reappeared; he asked to speak once more to the physicians. His voice unnaturally loud and quavering ever so slightly, he inquired of the chairman whether they would be able to survive if they ate the flesh of one of their number. The chairman refused to answer. When Whetmore continued to press him, he finally agreed that they probably would. Whetmore then asked whether it would be advisable for them to cast lots to determine who among them should be sacrificed. The chairman again refused to answer; this time he remained adamant. None of the other physicians were willing to respond either. Whetmore asked if there were among the party a judge or other government official who could answer his question. No one responded, not even the secretary of the society who was in fact a justice of the peace. Whetmore asked if there were a minister or priest who would answer his question but no one stepped forward, although a priest had only recently performed the last rites on a dying workman. The wireless machine then went dead, and it was assumed—erroneously, as it turned out—that the batteries had been exhausted.

Conscious that time was running out, the rescuers speeded up their efforts. They took risks they would ordinarily have avoided; as a result six more workmen were killed by another unexpected landslide. Eight days after the exchange with Whetmore, they finally laid bare the cave's exit. Four of the men were still alive, although close to expiration. The fifth, Roger Whetmore, was dead. His skeletal remains told most of the story, but the survivors made no secret of what had happened. On the twenty-third day of their captivity the defendants had killed and eaten their companion.

Ironically, Roger Whetmore had been the first to propose such a sacrifice. Not only would this ensure that at least some of them survived, he said, but even the victim had reason to be grateful for being spared the agony of a slow death by starvation. He for one, should the lot fall on him, would prefer it that way. Although at first repelled by the idea, his colleagues acquiesced in Whetmore's proposal when they heard the dire predictions of the medical experts. Whetmore happened to have a pair of dice with him, hence that was the method adopted for choosing the victim. But just before the dice were cast, Roger Whetmore had a change of heart and suggested that they wait another week before resorting to so awesome a remedy. The others disagreed. They charged him with a breach of faith and proceeded to roll the dice. When Whetmore's turn came, he refused to participate. Someone else rolled the dice in his behalf. They asked Whetmore if he had any objections to the fairness of the throw; he said he did not. The roll went against him.

The defendants were treated at length for malnutrition and shock and finally were put on trial. The trial was one of the least contentious in Newgarth's history, since there was little disagreement on the facts. Still, the jury deliberated for a long time. At one point, the foreman—as it happened, a lawyer—asked the court whether the jury might be allowed simply to issue a special verdict finding all the facts and leaving it to the trial judge to determine whether under those facts the defendants were guilty. Both sides agreed to this proposal; and the court acquiesced. Then, having examined the jury's rather unsurprising findings, he held the defendants guilty of murder and, as required, sentenced them to death. This done, he added his name to a petition drawn up by the defendants' supporters and carrying the signature of hundreds of citizens, including thetwelve jurors, requesting the chief executive to pardon and release the defendants. The chief executive, however, let it be known that he would not consider the petition before the Newgarth Supreme Court—the honorable Chief Justice Truepenny and his brethren, Justices Keen, Foster, Tatting, and Handy—had passed on the defendants' appeal.

Hard Cases

The year 4300 has not yet arrived, and neither has the case of the Speluncean explorers. So far the case is only a hypothetical problem, invented in 1949 by the great Lon Fuller, professor at the Harvard Law School. Equally hypothetical is the State of Newgarth, the Newgarth Supreme Court, and the five justices who sit on it. Lon Fuller does not say how he would decide the case of the Speluncean explorers. Instead he writes out five imaginary opinions, one for each of his imaginary Supreme Court justices, explaining how they would resolve the case. Two of the justices, Chief Justice Truepenny and Justice Keen, vote to affirm the trial court's verdict. Two others, Justice Foster and Justice Handy, vote to reverse it. A fifth, Justice Tatting, feels so perplexed by the case that he declines to cast a vote. As far as the imaginary jurisdiction of Newgarth is concerned that settles the matter: The Supreme Court being evenly divided, the trial court's verdict is affirmed and, unless the chief executive chooses to pardon them, the spelunkers will be hanged. As far as we are concerned, the justices' opinions don't settle very much. Each of the five opinions develops some intriguing arguments, but none of them is very thorough or very persuasive. So the problem is still with us: How should the case of the Speluncean explorers be decided if it ever arises?

Could there be any reason not to affirm the guilty verdict? The statutory definition of murder is touchingly simple and pristine: the willful killing of another person. Roger Whetmore did not die of natural causes—he was killed. He was not killed accidentally either, but quite intentionally—willfully. Why even hesitate to brand the defendants murderers? Because we know on reflection that not every intended killing deserves to be called murder. Whether or not Newgarth's criminal code explicitly says so, the definition of murder must be subject to numerous exceptions, if it is not to lead to some absurd consequences. A man might kill in self-defense or because he has gone insane; in either case he is clearly not a murderer. The defendants, of course, did not act in self-defense; self-preservation, yes, but not self-defense. Nor did they go insane. In fact they bore their ordeal with remarkable equanimity, even fortitude. But perhaps the defendants should be exonerated on some related principle, one that makes allowance for the dire straits in which they found themselves, for the grim choices they faced, in short, for the extreme necessity that drove them to do what they did.

It seems that we would not hesitate to recognize such a principle in a large variety of more pedestrian settings. Imagine a fire in a prison. Threatened with almost certain death, the prisoners break out of their cells. Are they guilty of the crime of escape? Clearly not. Imagine a man who has just suffered a heart attack. Unless immediately given a dose of nitroglycerine, he might die. A druggist administers the drug to him without prescription, because there is no time to fetch a doctor. Is the druggist guilty of the crime of selling a prescription drug without a prescription? We need not make up such examples. Courts occasionally encounter such cases. In 1810, the United States Congress imposed an embargo on the West Indies. While sailing from Alexandria to Boston, a heavy storm forced the William Gray to put in at the harbor of Antigua in the West Indies. The West Indies governor compelled the captain to sell his cargo and only then allowed him to leave. Was the ship guilty of a criminal violation of the embargo statute? The court held that it was not. The court admitted that the embargo statute was not qualified by an explicit exception for ships caught in stormy weather. But this statute like all statutes, the court reasoned, was subject to the "principle of necessity" as recognized "from time immemorial."

New Hampshire, like many other states, has a statute making school attendance compulsory. A parent who keeps his child out of school commits a criminal offense. Samuel Jackson's daughter was in very feeble health; he feared for her life and did not dare send her to school. In fact he never even applied to the school board for a special exemption or dispensation. Had he acted criminally? The court again appealed to the idea of necessity: "A parent cannot be required to imperil the life of his child by delays incident to an application to the school board, before he can lawfully do what is apparently reasonably necessary for its protection."

Texas, like most other states, requires that anyone in a car accident stop and wait for the police to arrive at the scene. Elmer Woods had a collision with another car. As a result of the accident, "a lady companion who was riding in the car with him" suffered some serious cuts and bruises, and Woods immediately sped off to drive her home. The hit-and-run statute allowed for no exceptions. But the court held that Woods should be acquitted "if in the collision his companion was injured to such an extent as in his opinion rendered it necessary that she receive treatment."

The Merrimack, a sailing ship, set out in 1834 from Boston for Rio de Janeiro. She was leaky to begin with. Several days out of harbor she met with a ferocious gale that further worsened her condition. The crew insisted on taking her back, but the captain turned a deaf ear. The crew eventually refused to go farther and the captain had no choice but to go back. In Boston the crew members were charged with mutiny. Invoking the idea of necessity, the court held they should be acquitted if they reasonably thought the ship unseaworthy and a serious hazard to life.

Having seen the necessity principle at work in cases that run the gamut from car accidents to mutiny on the high seas, we may feel reasonably confident applying it to run-of-the-mill situations, although, obviously, no necessity case is ever entirely "run- of-the-mill." Perhaps we should be content to leave it at that, to rest happy with being able to do justice in most cases that are likely ever to confront us. In other words, we may be tempted just to dismiss the issue: Why bother with cases like that of the Speluncean explorers, which are evidently nothing more than the fiendish product of a law professor's frenzied imagination? Why agonize over a hypothetical that was invented for the sake of agony? Why cross bridges we may never get to?

In fact, there is much to be said for considering seriously such unlikely scenarios as the case of the Speluncean explorers. Whatever this "principle of necessity" is, the run- of-the-mill cases have not forced us to do more than vaguely articulate it. To the extent that we can put our finger on it, the principle appears to say: In situations of necessity, criminal laws may be broken. That sounds as simple and satisfactory as any one of the Ten Commandments, the archetypes of our criminal laws. But are we really serious about living with such a principle?

Consider its application to the Speluncean explorers. It would make the case trivially easy to decide and would lead us to acquit the defendants instantly. But does that not show that there is something amiss with the principle? Even if inclined to acquit, one must feel eerie qualms about doing so, a gnawing unease. Why those qualms, why that unease? Let us try to identify slowly, deliberately, one-by-one, the sources of our discomfort.

First, we may be troubled that "necessity" should serve to sanction a breach of the most fundamental prohibition of our criminal law: Thou shalt not kill. Do the most basic provisions of the criminal law cease to apply to someone when he finds himself in sufficiently dire straits?

Second, we may question whether the sacrifice of Whetmore was even necessary to save the lives of the four. The rescue team made its final penetration two days earlier than expected. Perhaps all five could have survived until then.

Third, we may speculate whether the cave explorers did not have reason to know of the risk that faced them when they embarked on their expeditions. And if they deliberately courted the chance of finding themselves in such a situation of necessity, should they be permitted freely "to take advantage" of it when it occurred?

Fourth, we may be of two minds whether even Roger Whetmore's consent to being killed could have served to exonerate the defendants. The Newgarth legislature, let us suppose, at one point expressly considered sanctioning euthanasia but declined to do so. Would Roger Whetmore's consent have been any different from that of a cancer patient who asks for and receives a lethal injection of morphine?

Fifth, we may be uncertain whether casting lots was clearly the appropriate way of determining who should be sacrificed. Weren't there other criteria available too? Who was the most valuable to society? Who valued life the most? Who was willing to pay the most to the others for the privilege of staying alive? Who had the larger family to support?

These questions are no idle concerns. Although less obvious, similar questions lurk behind the simplest of the run-of-the-mill cases. Recall the case of mutiny at high sea. What if the Merrimack had been a navy ship steaming toward some distant battleground? Are we still willing to put it in the hands of the crew to turn the ship back because it seems unlikely to survive the next storm? Remember that ship that violated the embargo. What if the captain of the William Gray left Alexandria knowing full well that the weather would be foul and might force him to put in at the West Indies? Think again of the druggist who administers nitroglycerine to a heart patient. What if the FDA had not yet approved use of the drug, if in fact there were significant risks associated with giving it which only a doctor could fully appreciate?


Excerpted from Bad Acts and Guilty Minds by Leo Katz. Copyright © 1987 The University of Chicago. Excerpted by permission of The University of Chicago Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Meet the Author

Leo Katz is the Frank Carano Professor of Law at the University of Pennsylvania Law School. He is the author of Bad Acts and Guilty Minds: Conundrums of the Criminal Law and Ill-Gotten Gains: Evasion, Blackmail, Fraud, and Kindred Puzzles of the Law, both published by the University of Chicago Press.

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