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When It's Better for the Defendant if the Victim Dies

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by: Ryan • January 4, 2013 • no comments

In criminal law, a severe punishment can be based on a mix of factors: harm caused, the maliciousness of the defendant, the persistence of the defendant's criminal activity, and the defendant's resistance to treatment and reformation.

I'm going to focus primarily on "harm caused." The greater the harm, the more severe the punishment, right? Imagine a crime where all the other sentencing factors were the same, except that in one case the victim had a big scar and the other the victim died. The defendants did the same thing, had the same mental state, same lack of criminal history, were both deeply remorseful. But when the victim dies, the defendant gets probation. The scar? 70 months in prison.

Could that possibly be just? Just or not, in one not uncommon situation, that's the law in Oregon.

It all arises from a case call State v. Barnes. Imagine that a defendant punches the victim. One punch. The defendant isn't particularly strong. The victim takes the punch, falls and cracks his skull on the sidewalk or his orbital socket (a very weak bone) is broken. He's seriously injured (and a scar can be enough to constitute a serious physical injury, and some prosecutors will charge a break in the orbital socket as a serious physical injury, though it's debatable if that's enough). Everyone agrees -- everyone -- that the defendant never meant to cause a serious physical injury. A bloody nose or black eye was all he intended or even thought might happen.

Nevertheless, the defendant is guilty of Assault II, because he engaged in assaultive behavior and the victim was seriously injured as a result of that behavior. The defendant need not know, much less intend, that he would cause serious physical injury.

In a vacuum, this seems harsh but not unreasonable. It's almost a strict liability analysis if you ever throw a punch, because we don't want anyone throwing a punch, ever. It's too harsh in my opinion, but you can see the logic. But compare this to manslaughter in the second degree with all the same facts but one. The difference is that the victim dies. To be guilty of manslaughter, the defendant would need to have recklessly caused death. And that means the defendant would have to have foreseen death as a possibility but ignored that possibility.

In the facts above, the jury would likely acquit of manslaughter. I know if I punched a guy, I wouldn't imagine death as a reasonable possibility. (In fact, if I ever said, 'when I throw a punch, someone could die,' you'd think I was delusional.) But sometimes something bizarre happens, perhaps because the victim had a blood clot that no one knew about, which broke loose with the punch. Or his head hit the curb in just the right way. In that situation, the defendant would likely be acquitted of manslaughter because the death was unforeseeable.

But if the victim doesn't die? Well, freak accident or not, if the injury is serious, the defendant faces 70 months in prison. And again, this is because the defendant doesn't need to have any clue that he is going to cause serious physical injury, thanks to State v. Barnes.

In other words, better that the victim dies, so you have a chance of beating the manslaughter charge, than he have a nasty scar, for which there'd be no defense.

Aside from utter absurdity, I'd like to think this would violate Article I, section 16, of the Oregon Constitution, because the results are so insanely disproportionate when the defendant is better off if the victim dies. But that would require an expansion of that constitutional provision from our current understanding.

This isn't the only way Barnes is an odd decision.

Though the mental state in assault II is "knowingly," Barnes says "knowingly" applies to "assaultive behavior," not to the end result. What is "assaultive behavior"? In a vacuum, you'd say, "assaultive behavior" means behavior -- like throwing a punch -- that could cause injury.

Except . . . that's recklessness. If I do something that has a reasonable chance of causing injury, I am engaged in reckless behavior. So that can't be what "assaultive behavior" means, otherwise you're substituting "recklessness" in when the legislature has said the mental state is "knowing."

Therefore, "assaultive behavior" must be behavior that the defendant knows WILL cause an injury.

But wait. . . doesn't that mean the mental state applies to the result (an injury)? But Barnes says "knowingly" doesn't apply to a result.

And we have the more fundamental problem that the mental state of "knowingly" applies to an element ("assaultive behavior") that . . . um, doesn't exist. Show me where the phrase "assaultive behavior" is in the criminal code. I get that the appellate courts have ruled that the mental state doesn't necessarily apply to every material element. But now it applies to imaginary elements?

Yes, this ticks me off. In particular because it leads to very unjust results.

One would hope that -- if ever faced squarely with the issue -- the Oregon Supreme Court will overrule Barnes. But few defendants will want to hang their hat on that slim possibility.