As with any crime, the prosecutor must prove every element of the crime in order for a conviction. Under California law, the crime of robbery has five elements:
(1) taking property that is not your own;
(2) the property is taken from another person’s body or immediate possession;
(3) the property is taken against the person’s will;
(4) there must be the use of force or threats; and
(5) there must be intent to permanently deprive the owner of the property or for an extended period of time.
When interpreting each element, it is important to know how the courts define each element. For example, although “taking property” requires that you obtain possession of the property, and carry it away; the courts require only the slightest bit of movement to satisfy the element of “taking property.” That means, if you take possession of some one’s cell phone, and move it only a few inches; you have carried it away and the element has been met. Interestingly, the court will still find that the element has been met even if you show that you changed your mind and immediately put the cell phone back.
Another interesting interpretation involves the element of the “use of force or threats.” The element can be met even if the victim is unconscious. So, for example, if a person is passed out on the street, and you take his wallet, the element of taking property by force or threat is still satisfied because courts consider this example as a situation where the property is taken against the person’s “will” and therefore, considered to be taken by force.
Because the crime of robbery involves the use of force, it is considered a felony and is punishable by 2-9 years in state prison. California distinguishes between first degree robbery and second degree robbery. First degree cases are more serious and include car-jacking, robbing an inhabited home, or robbing someone who is using or just used an ATM. All other robberies are considered second degree. The statute for robbery is California Penal Code section 211.
Public defenders are lawyers who represent indigent defendants in criminal proceedings and are compensated by the government for their work. Although there had been private organizations like New York’s Legal Aid Society (founded in 1876) performing this task with public and private funding sources, the first government agency public defender’s office was created in Los Angeles in 1914. Soon, most large cities had similar offices, or private programs that would provide pro bono representation to poor defendants, particularly immigrants, accused of serious crimes. For the next fifty years, the United States Supreme Court addressed a line of cases involving the constitutional right to counsel; and in 1963, the Court eventually established a right to counsel in virtually all aspects of state criminal proceedings. As a result, states began creating legal defense delivery systems to ensure that qualified defendants were represented in court.
Today, there are an estimated 15,000 attorneys that work as public defenders in the United States. In all but one state, a public defender’s office provides no cost – or low cost – legal representation to indigent defendants in some, or all types of criminal proceedings. The only exception is Maine, which employs court-appointed attorneys. Currently, 22 states operate a state-wide public defender’s office, while the remaining 27 states provide services through county-based offices. In California, there are public defender’s offices in 26 of the 58 counties.
As states across the country wrestle with budget cuts and financial difficulties, many public defender’s offices are faced with unprecedented caseloads, low staff morale, and legitimate concerns that defendants are not receiving adequate legal representation.
Due to an alarming increase in case loads, and fewer resources, courts across the country have been stepping in to impose limits on caseloads of public defenders. Most recently, in Washington, the state’s Supreme Court ruled that beginning in September 2013, public defenders may not handle more than 400 misdemeanor cases or 150 felony cases per year. These limits are an effort to ensure that attorneys have sufficient time to spend on each case and ensure that their clients’ constitutional right to an attorney is not violated. In the past, public defenders in Washington have handled as many as 1,000 misdemeanor cases each year. The American Bar Association (ABA) recommends caseloads of no more than 150 felony cases per attorney.
The state supreme courts of New York, Florida, and Michigan are currently considering imposing limits on the number of cases the public defender’s office may handle; and also are considering whether or not the offices are able to provide adequate legal representation in light of the increasing case loads.
The ABA has guidelines for public defenders on what is considered adequate legal representation that include:
• when caseloads are high, the public defense program should consist of both a defense office and the private bar
• workloads are controlled and permit the delivery of quality representation
• the attorney’s ability, training, and experience are sufficiently matched to the complexity of the case.
As states continue to cut costs, it seems apparent that many government offices, including the public defender’s offices will be forced to reduce staff, increase workloads, and eliminate services. As a result, courts have no choice but to intervene and try to ensure that indigent criminal defendants are provided adequate legal representation.
The Fourth Amendment prohibits unreasonable search and seizures by the police. While some warrantless searches are permitted based on the circumstances, there must be some reasonable and articulable suspicion by a law enforcement officer before a person may be detained, and searched. The consequences for an unlawful search can be significant including the suppression of all evidence that were a product of the unlawful search.
Police, however, are permitted to conduct a search when it is incident to an arrest. The reason for this is to prevent the defendant from destroying evidence or to ensure the defendant does not have a weapon that may be a threat to the arresting officer. Upon arrest, police are further permitted to take mug shots and obtain fingerprints.
Recently, court cases across the country have challenged state and Federal laws that allow police to also obtain DNA samples from persons arrested, but not yet convicted of felonies. Twenty-eight states have laws that allow for the taking of DNA samples prior to a felony conviction. The first such law was passed in Louisiana in 1997 and allowed for DNA samples to be taken from any person arrested for a felony sex offense or other specified offense. In 2009, a California law took effect which requires law enforcement officers to obtain a DNA sample by swabbing the inner cheek of every person arrested for a felony. The information is then entered into a national database.
Proponents of such laws argue that DNA samples are necessary to assist law enforcement with identification of suspects of other crimes, and that submitting DNA samples are no more intrusive than fingerprints or strip searches, which have been held to be constitutional. Moreover, guidelines are implemented to ensure that the genetic information obtained is used only for authorized purposes.
On the other hand, critics of these laws point out that once DNA samples are submitted, the data is stored regardless of whether the suspect is eventually convicted. In California, for example, approximately 300,000 people are arrested for a felony each year, yet almost 100,000 are never convicted or even formally charged; yet their genetic information has already been submitted and stored in a national databases.
The U.S. Supreme Court is expected to rule on the issue this fall in light of split decisions by Federal courts across the country. For example, the Maryland statute allowing for pre-conviction DNA samples was held unconstitutional, while a similar law in California was upheld. While state law varies, the major aspects of each law are:
• which offenses are included?
• when is the DNA sample collected and when is it analyzed?
• who collects the sample?
• what protocol is followed for collection and analysis?
• what process is available for expungement?
Surprisingly, DNA technology has only been used since 1985. Since then, DNA technology has become the most reliable source of physical evidence in criminal cases, particularly those involving sexual assaults. Forensic testing of genetic material can match DNA found at a crime scene with the perpetrator with better than 99% accuracy. DNA evidence has also been used successfully to exonerate the innocent. To date, 300 of convictions have been overturned on the basis of DNA testing, including over 100 for people who were on death row.
There are an estimated 270,000,000 private citizens in the United States that own firearms (approximately 88.8 people per 100 own a firearm). According to an analysis of the number of background checks conducted by each state for prospective gun owners, the states with the most firearms are Kentucky, Utah, Montana, Wyoming, and Alaska. Although there is no clear consensus as to what correlation, if any, the number of guns in a state has on the number of gun deaths, the top five states for gun deaths are:
- Mississippi (18.3 gun deaths per 100,000 persons)
- Arizona (15 gun deaths per 100,000 persons)
- Alabama (17.6 gun deaths per 100,000 persons)
- Arkansas (15.1 gun deaths per 100,000 persons)
- Louisiana (14.9 gun deaths per 100,000 persons).
Not surprisingly, state gun laws vary greatly from state to state. Most gun laws focus on three categories: (1) laws prohibiting the possession of firearms by certain people; (2) laws regulating the sale and transfer of firearms; and (3) the possession of firearms in public places.
- State laws prohibiting the purchase or possession of firearms
Every state except Vermont has state laws that ban the transfer or sale of firearms to a convicted felon. In most states, the gun laws use the traditional definition of felony which include crimes that are punishable by more than one year of incarceration. Some states have additional specified crimes, including misdemeanors, that will also prevent people from possessing firearms. For example, in Indiana, persons with convictions for resisting arrest may not possess a firearm. Overall, twenty-three states have gun laws that include some misdemeanors as crimes that will prohibit the transfer, purchase or possession of a firearm.
Thirty-three states prohibit persons with mental illness to purchase or possess firearms. Five of those states prohibit only the purchase or possession of handguns. Other state laws prohibit persons who are subject to a restraining order from purchasing a handgun (20 states); persons who are drug abusers (28 states); persons who suffer from alcoholism (18 states); and all states except for Wyoming prohibit the transfer of firearms to juveniles.
- State laws regulating the sale and transfer of firearms
The Brady Act is a federal law that requires all federally licensed firearms dealers (FFLs) to conduct background checks on all potential buyers of firearms. However, it is estimated that 40 percent of all firearms purchases are from private sellers, and therefore not subject to background checks pursuant to federal law. Every state, however, except Vermont, has state laws that require some sort of background checks for potential gun purchasers or possessors.
Only three states, California, Maryland, and New Jersey, have state laws that limit the number of handgun sales or purchases to one per 30 day period. These laws are based on studies that show that multiple handguns purchased by the same person are often used for criminal activity. New York gun laws, however, are even stricter, and limit the sale of all firearms to one purchase every 90 days.
Eleven states require some sort of waiting period between the purchase of a firearm and the delivery of the firearm. These laws apply to the sale of all firearms, handguns only, long guns only, or handguns and assault weapons; and vary in length from 48 hours to two weeks for delivery. There are three additional policy considerations that are triggered with current state laws requiring waiting periods:
—> is the “cooling-off” period established of sufficient duration between the sale of a firearm and deliver
—> notably, valid permits to possess a firearm do not exempt a purchaser from the waiting period
—> also, transfer of the firearm must not occur until after the required background checks have been completed, regardless of any waiting period.
- State laws regulating firearms in public places
Various state laws regulate what circumstances, if any, in which a person may carry a concealed weapon in public. Only two states, Illinois and Wisconsin, do not allow the carrying of concealed weapons. Two other states, Alaska and Vermont, do not require a permit to carry a concealed weapon, while the remaining states allow for concealed weapons, but only with a valid permit.
Only three states, Florida, Illinois, and Texas, prohibit the open carrying of handguns in public. Thirty-five states allow persons to carry handguns in public without a permit, but three of those states require the handgun be unloaded. The remaining twelve states allow for the open carry of handguns but require a valid permit. Most states, however, do have exceptions that prohibit the open carry of handguns in certain places such as schools and school zones, state-owned buildings, courthouses, places where alcohol is served or sold, and on public transportation.
As the debate regarding gun laws continue, state laws will become more complex and varied. Many commentators argue that stricter federal laws are required to assist existing state laws, which are often powerless to control the flow of weapons from a less restrictive gun law state to a more restrictive gun law state. There are no simple answers to the ongoing controversy over gun laws.
Federal Gun Laws
The debate on gun control includes many issues such as whether restrictions are permissible under the Constitution, and whether gun control laws actually help to control crime. State laws restricting firearms vary and are independent of federal firearms laws, which are surprisingly few compared to the estimated 300 major state gun laws. In addition, it has been widely estimated that the number of local gun laws could be as high as 20,000.
A list of the major Federal Law restricting gun control in the U.S. is strikingly short:
- 1934 – National Firearms Act was a response to prohibition and the rise of gangsters, with the goal of curbing the use of automatic-fire weapons.
- 1938 – Federal Firearms Act regulated and monitored the selling and shipping of firearms through both interstate and foreign commerce channels.
- 1968 – Gun Control Act implemented license requirements and regulation, as well as restricting the sale of firearms to convicted felons, the mentally incompetent, and drug users. The Act also outlawed mail order sales of rifles and shotguns.
- 1986 – Law Enforcement Officers Protection Act banned the sale of armor piercing ammunition that was capable of penetrating bullet proof clothing.
- 1990 – Crime Control Act created criminal penalties for possessing firearms within school zones; and restricted the assembly of illegal semiautomatic rifles and shotguns.
- 1994 – Brady Handgun Violence Prevention Act enacted stricter rules for background checks.
- 1994 – Violent Crime Control and Law Enforcement Act banned assault weapons and enhanced laws for the possession of guns by juveniles.
- 1999 – Gun Bill is passed that requires all new hand guns to have a trigger lock.
Proponents of gun control argue that stronger Federal laws are necessary to restrict firearms because state laws cannot curb the flow of guns from less restrictive states to more restrictive states. These advocates seek to ban specific firearms that are believed to be primarily used for criminal purposes or pose unusually high risks to the public. They also seek stricter regulations and restrictions on who may possess a firearm. Unfortunately, the actual impact of gun laws on crime is difficult to determine because there simply is not enough comprehensive, current, or accurate data to definitively assess whether there is a causal connection between guns and violence.
Various organizations collect data from the FBI and U.S. Census Bureau to provide some insight into the correlation between firearms and violence in the U.S. Four studies provide the following statistics:
(1) In 2010, there were 14,748 murders reported by the FBI, and 9, 958 of those crimes involved a firearm;
(2) There were 31,347 gun-related fatalities which include homicides, legal intervention, suicides, and accidents, in 2009;
(3) Approximately 4.3 million victims reported non-lethal crimes including rape or sexual assault, robbery, aggravated assault, and simple assault in 2009. An estimated 22% of those crimes involved the use of weapons; and 8% of weapons used were firearms; and
(4) In the five year period beginning in 1987, approximately 62,200 victims of violent crimes (1% of all violent crimes) used a gun to defend themselves. An additional 20,000 per year used a gun to protect property. These figures may also include persons who work as police officers and armed security guards.
Opponents of gun laws cite recent U.S. Supreme Court cases that hold the Second Amendment of the U.S. Constitution protects an individual’s right to possess a firearm for lawful purposes, such as self-defense, within the home and in federal enclaves. The Court has also affirmed lower court decisions that determined handguns are “arms” for the purposes of the Second Amendment. Critics of these decisions argue that the Constitution does not contain an express right of an individual to use firearms for personal self-defense, and that an individual’s need to protect themselves with weapons has been greatly diminished in modern society.
California is considered to have some of the strictest gun control laws in the country with approximately 950 firearm laws currently in effect. Supporters of stricter gun laws argue that these laws are necessary to curb crime and enhance safety, while critics of gun control argue that the laws infringe upon the Constitutional right to bear arms afforded to all citizens by the Second Amendment, and that safety is reduced because citizens are less able to use firearms to protect themselves. Because there are very few federal firearms laws, individual states have been left to regulate the sale, possession, and use of firearms and ammunition. As a result, state laws vary significantly from state-to-state.
In 2012 alone, no fewer than six bills have been introduced in California that address existing gun laws or create new gun laws. These bills include:
• Senate Bill 610 – Concealed Handgun Permit Application (in effect since January 2012)
• Senate Bill 819 – Transfer of Background Check Fees (in effect since January 2012)
• Assembly Bill 144 – Unloaded Handgun Open Carry Ban (in effect since January 2012)
• Assembly Bill 809 – Long Gun Registration Law (effective in 2014)
• Assembly Bill 1527 – Long Gun Open Carry Ban (pending)
• Senate Bill 427 – Ammunition Registration (vetoed)
Senate Bill 610 states that Gun owners are not required to obtain liability insurance before getting a permit to carry a concealed weapon. The law also standardizes the application process and does not require an applicant to pay for training courses prior to obtaining a permit. This was the only recent legislation that was applauded by groups who urge less restrictive gun laws.
Senate Bill 819 allows the Department of Justice to access the Dealer Record of Sales (DROS) funds in order to pay for the enforcement of certain gun possession laws. Originally, DROS funds were used only to pay for the administrative costs of obtaining background checks. Critics of this law argue that there will be insufficient DROS funds to fund enforcement.
Gun control advocates supported both Assembly Bill 144 and 809. AB 144 prohibits a person from openly carrying an unloaded handgun in most public places; and is already effective; and AB 809 will become effective on January 1, 2014, and requires the registration of all newly purchased rifles and shotguns. Currently, there is no state law that requires registration of rifles or shotguns, and only new residents of California are required to register handguns within 60 days. Failure to register a handgun is a misdemeanor; however, law enforcement typically will not charge gun owners who comply with the registration law after the 60 days.
In the wake of the recent gun crimes in Arizona and Colorado, Assembly Bill 1527 was recently passed in California and is now awaiting the governor to approve or veto. The bill would prohibit the open carry of long guns, which includes rifles and shotguns. Critics of AB 1527 argue that this is unconstitutional, while supporters argue that this is merely a necessary expansion of AB 144, which now outlaws the carry of open unloaded handguns. Supporters argue that the sight of rifles and shotguns can be frightening and should be prohibited in most public places.
Governor Jerry Brown, who is a gun-owner, vetoed Senate Bill 427, which would have allowed police to collect sales records from ammunition retailers, required retailers to notify the police if they intended to sell ammunition; and prohibited the online and mail order purchase of certain calibers of ammunition. Critics of SB 427 argued that many of the calibers of ammunition that were identified in the law are popular among hunters, and would have an impact on sales.
In general, groups that advocate for gun laws argue that strict gun laws help reduce violence, particularly domestic violence. Advocates point out that states with strict gun laws have lower incidences of suicides and crimes of passion that result in homicide. In 2010, 8,775 out of almost 13,000 murders were committed with firearms. Opponents of gun laws, however, argue that the right to bear arms must not be infringed upon, and that law abiding citizens do not need restrictions; while non law-abiding gun owners will not be deterred from criminal activity regardless of gun laws. A 2010 survey estimates that approximately 300 million firearms are owned by civilians in the United States, which is 50% of all guns in the world. It is estimated that there are 88 guns per 100 U.S. residents, the highest per capita in the world. In comparison, the second highest gun ownership per capital is Serbia, with 58 guns per 100 residents.
The debate regarding gun control extends beyond California and the United States. The United Nations has tried to create an international treaty to regulate global arms trades, which is estimated at $60 billion every year. The treaty would require all countries to establish national regulations to control the transfer of firearms and to regulate firearms brokers. It would also require countries to determine whether exported weapons would be used to violate international human rights or humanitarian laws, or be used by terrorists or organized crime. Presently, there are 192 member States of the United Nations.
Proposed voter identification laws in at least six states currently are being reviewed by courts, or are pending approval by the U.S. Department of Justice. Critics and proponents of voter ID laws agree that voter ID laws could have a significant impact on the upcoming presidential election.
The 24th Amendment of the U.S. Constitution was ratified in 1964 and prohibits poll taxes, or any tax, to be a prerequisite to a person’s right to vote in Federal elections. The U.S. Supreme Court extended that right to state elections in 1966.
Proponents of voter ID laws believe that these laws are necessary and will discourage voter fraud, which can include eligible voters who vote more than once, and non-qualified persons who cast a ballot. Non-qualified voters include those under the age of 18, people who lack sufficient mental capacity to vote, or felons prohibited from voting due to state law. Penalties for voter fraud vary from state-to-state, but can include a civil fine of up $1,000 or incarceration for up to five years. Most states restrict a convicted felon’s right to vote while incarcerated and even while on probation or parole. Only two states, Maine and Vermont, allow felons to vote while incarcerated. Felons in Kentucky and Virginia are banned from voting for life unless the right to vote is restored by the governor or state legislature.
A California resident and citizen of the United States is eligible to vote in California if he is:
- not in prison, on parole or under post-release community supervision as a result of a felony conviciton;
- not serving a sentence in a county jail for the conviction of a low-level felony as defined by the Criminal Justice Realignment Act of 2011 (CJRA);
- not on probation as an alternative to serving the concluding portion of a sentence in county jail for the conviction of a CJRA-defined low-level felony;
- not declared mentally incompetent by a court of law; and,
- not serving a state prison term in a county jail under contract between state and local officials.
That said, a California resident and United States citizen can vote in California if he is:
- in a local jail as a result of a misdemeanor conviction;
- in county jail as a condition of probation when entry of judgment and sentencing have been suspended following a felony conviction;
- awaiting trial or is currently in trial and is not yet convicted of a crime;
- completed parole or post-release community supervision for a felony conviction; or
- on probation, unless the probation is an alternative to serving the concluding portion of a sentence in county jail for the conviction of a CJRA-defined low-level felony.
Critics of voter ID laws, however, argue that there is no evidence of widespread voter fraud in recent elections, and that the laws unfairly target minorities, and lower income voters who may not have the necessary IDs to vote, or the financial means to obtain them. Therefore, the laws will prevent large number from voting. According to a 2011 study, approximately 11% of U.S. adults eligible to vote do not have government issued photo IDs.
One of the first attempts by a state to required voter IDs in order to vote was a law proposed in 1999 by Virginia Governor Jim Gilmore. The law was eventually struck down later that year by the Virginia Supreme Court because it failed to reduce voter fraud, and excluded voters unfairly. Following the 2000 presidential election which was notable for the controversial re-count of Florida’s ballots, there was more interest in voter laws and voter fraud. In 2002, President Bush signed the Help America Vote Act which required first time voters in Federal elections, and all voters who registered by mail, to show a current and valid photo ID, or other form of acceptable non-photo ID, at registration or voting. Since then, at least 31 states have implemented some type of voter ID law which requires some sort of ID at the polling place. The state laws differ in what type of ID is required, and include:
- must show a photo ID (8 states)
- must show a photo ID or some acceptable alternate non-photo ID (7 states)
- accepts non-photo IDs (16 states)
- no ID required (remaining 19 states).
In August 2012, a Federal court struck down a Texas law that would have required voters to show a photo ID and held that the law would have been too burdensome for the poor, which in Texas includes a disproportionately high percentage of African Americans and Hispanics.
In California, voters are required to present proof of identity at registration or prior to voting, but no ID is required at the polling place. Acceptable forms of identification for registration include government issued photo IDs as well as other photo IDs such as:
- employee ID
- credit or debit card
- student ID
- health club ID.
California residents can also prove identity with other documents that do not have a photo. However, the IDs must include the name and address of the voter, and include documents such as:
- utility bill
- bank statement
- government paycheck
- public housing ID issued by a governmental agency
- lease or rental statement issued by a governmental agency.
While officials from the State of Texas have indicated that they plan to appeal the recent ruling, even if it is reversed, it will not be in time to have any impact on the 2012 election. However, a voter ID similar to the Texas law was proposed in South Carolina and is scheduled to be heard in September 2012 before the same three-justice panel that decided the case involving the Texas voter ID law.
The United States Supreme Court recently held that mandatory life sentences without the possibility of parole are unconstitutional when applied to juveniles. This marks the third time in a decade that the Supreme Court has imposed limits on how juveniles may be sentenced. In 2005, the Supreme Court ruled that juveniles could not be sentenced to death, and in 2010, the Court prohibited life terms without the possibility of parole for juveniles convicted of crimes other than murder. Currently, approximately 2,000 prisoners are serving mandatory life sentences without the possibility of parole for crimes they committed when they were under the age of 18 years old.
The recent decision found mandatory life sentences without the possibility of parole to violate the 8th Amendment prohibition against cruel and unusual punishment when applied to juveniles prosecuted in juvenile delinquency cases. All states allow for circumstances in which a juvenile can be transferred to adult criminal court and be charged as an adult, even though they are under the age of 18.
The Supreme Court, however, has often noted the “unique status of children,” and in the recent decision held that judges and juries must consider the defendant’s age and nature of the crime before imposing a life sentence without the possibility for parole. The ruling does not prohibit sentencing juveniles to a life term without parole, but does mandate individualized sentencing and requires the consideration of mitigating circumstances, including the juvenile’s age, and the defendant’s background and upbringing.
The ruling will affect 28 states that impose mandatory life sentences without parole for murder. Immediately, states were responding to the Court’s ruling. In Iowa, the governor commuted the sentences of 38 inmates sentenced to mandatory life to the minimum term of 60 years. The Pennsylvania legislature has begun hearings on current sentencing laws in order to comply with the recent ruling.
In California, 309 inmates are currently serving life without parole for crimes committed when they were 16 or 17 years old. Prior to 1990, juveniles were not eligible for mandatory life sentences in California. However, proposition 115, approved in 1990 provided mandatory life without parole sentences for 16 and 17 year old defendants if convicted of special circumstance murder unless the judge made a finding of good reason to impose a sentence of 25 years to life.
The Court’s recent decision does not directly impact the cases of prisoners already sentenced to mandatory life without parole when they were juveniles, but it will provide a minor - and his criminal defense attorney – a basis to seek re-sentencing.
While it may be considered a good deed to help someone, helping someone commit a crime can get you in trouble. In fact, under the legal principle of “accomplice liability,” you can be charged, convicted and sentenced for the same crime as the actual perpetrator – even if you did not benefit from, and were not present at, the commission of the crime.
Accomplice liability, or aiding and abetting, allows prosecutors to cast a very broad net and charge every person who encourages, facilitates or aides in the commission of a crime. For example, in a bank robbery, the person who actually points a gun at the teller and grabs the money is guilty of armed robbery. But prosecutors may also charge any other person involved, such as the person driving the get-a-way car, the person who serves as a look-out, and the person who provided information regarding the lay-out of the bank with armed robbery. In this case, all four offenders are considered as having the same degree of guilt, even though only one of them actually pointed the gun and took the money.
Accomplice liability is triggered when a person knowingly aids, promotes, encourages or instigates the perpetrator of a crime. Consequently, very little action on the part of the accomplice is required. In one well-known case, a defendant was convicted of statutory rape after he rented his room to a young couple. Both the defendant and the other man were charged and convicted of statutory rape due to the tender age of the young woman. The court found the defendant liable under a theory of accomplice liability because his act – of renting his room to the couple – facilitated the crime. As a result, the defendant was sentenced to nine months in jail.
Accomplices can be punished both for being an accomplice, and also for the resulting crime as well. Accordingly accomplices are typically charged with the actual crime, i.e. armed robbery, arson, or murder.
Critics of the doctrine of accomplice liability argue that it is unfair to hold someone responsible for a crime in which their involvement could be seen as relatively minor, or in cases where the foreseeability of the crime to the accomplice is remote. In one case, the defendant hired a hit man to kill someone. As they were approaching the intended victim, they saw another man. The defendant told the hit man that the man was not the intended victim. The hit man, however, shot and killed the man anyway. The defendant was convicted of first degree murder under a theory of accomplice liability, even though he never intended for the hit man to kill anyone but the intended victim. The court found that the defendant facilitated the murder by hiring the hit man, regardless of who the intended target was.
As these cases demonstrate, the theory of accomplice liability can be a very powerful weapon for prosecutors. Defendants can – and will – be charged as accomplices if they encourage, facilitate or aid the commission of a crime, even if they do not actually commit the crime. Moreover, if convicted, an accomplice could be sentenced to the same penalties as the actual perpetrator of the crime.
The fatal shooting of Trayvon Martin by George Zimmerman in February 2012 has sparked a high level of media attention, public scrutiny, and scholarly debate. Many months after the shooting, there seems to be more questions than answers. While it remains unclear what effect the killing will ultimately have on the laws of Florida and the United States, the death of Martin, and the fate of Zimmerman will undoubtedly continue to stir controversy.
On February 26, 2012, Martin, a 17 year-old African American, was visiting the gated community in Sanford, Florida where Zimmerman, a 28 year-old multi-ethnic Hispanic American, was considered the coordinator of the neighborhood crime watch group. That night, Zimmerman would fatally shoot Martin. How and why remains a mystery. Was it self-defense? Or was it racially based and unjustified?
Media reports following the shooting have often focused on Florida’s statute regarding self-defense. Specifically, much of the national discussion concerns Florida’s “stand your ground” provision which allows a person to use force against another person, without a duty to retreat, if he has a reasonable belief he is threatened. Using this defense, Zimmerman claims he acted in self-defense when he shot the single bullet that killed Martin. Accordingly, Zimmerman claims, under Florida law he was not required to retreat, nor was he prohibited from using deadly force.
States have enacted different statutes that offer a varying array of protection to defendants who may have used force in situations similar to Zimmerman. There are two historical legal theories that often work together to form the basis of a state’s particular statute: (1) the “Castle doctrine” which holds that a person does not have a duty to retreat when protecting his home from an intruder; and (2) the “stand your ground” or “no duty to retreat” doctrine, which establishes the circumstances in which a person may use force against an assailant, without any obligation to seek safety in order to avoid a confrontation.
Over half of the states in the U.S. have adopted some version of the Castle doctrine. In general, the castle doctrine identifies the home as a place where a person is permitted to use force, including deadly force, to defend against an intruder without facing criminal prosecution. Under this principle, it is presumed the person had a legitimate fear of imminent risk of death or serious bodily harm in this situation.
In California, for example, the unlawful, forcible entry into one’s residence by someone who is not a member of the household creates a presumption that the resident has a reasonable fear of imminent peril of death or great bodily injury, and therefore, the use of deadly force against the intruder is justifiable. Consequently, if such a person is later facing felony charges for taking action, his criminal defense attorney can argue the person was justified in acting.
Florida, however, is one of about 17 states that have extended the Castle doctrine further by enacting stand your ground laws that permit the use of force in circumstances beyond protecting one’s home. States have allowed the use of force to protect one’s automobile or even public places. In Florida, there is no duty to retreat or abandon a location in which one is legally allowed to be. Therefore, Zimmerman may argue that he was lawfully on the common grounds of the gated community where he lived, and because he had no duty to retreat, he was justified in using deadly force against Martin, who he alleges was the an intruder, and acted aggressively.
Zimmerman has been charged with second degree murder in Martin’s shooting death. The outcome of his trial will likely promote further discussion by the public, legislators, and legal community, as well as create changes in law as well as public opinion.