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Law vs. math

In our everyday life, we tend to intuitively treat deeds of others depending on their quantity and quality. It is probably explicable in terms of sociology. For example, watch a great piece of a monologue by Tom Hanks in Steven Spielberg’s “Bridge of Spies” on 5 people being hit by a car and its insurance aftermath.

Done watching? OK.

As the law represents the societal point of view on reality, those intuitions are embedded in different legal concepts. In criminal we feel that if one commits several crimes should be treated differently than a person is committing only one. And here a million problems begin.

• What is an act?
• What are the criteria to determine if it is the same or another act?
• What happens if an act meets elements of various offenses?
• If there are undoubtedly several acts – how to impose a penalty?
• How many penalties there should be in case of one or several acts? Etc.

Can 2=5? In math – no, in law – why not

Every legal system provides answers to all or almost all of the above questions. The answers may however vary. Every now and then we hear about a hard case in which the issue of multiplicity of counts and crimes occurs raising some intrasystemic questions. The most recent case is the tragedy which happened in Pittsburgh Synagogue (October 2018) when an anti-Semite shot and killed 11 people. What he did in the language of criminal law may be described in a variety of ways, highly depending on the legislation in the place of the perpetration.

Killing 11 people may be either 11 separate crimes, one aggravated type of murder (e.g., killing multiple individuals by one act with premeditation) or one crime because of committing several killings in short time intervals with premeditated intent (continuous act theory) or it may constitute as many crimes as criminal provisions were met.

The first is most basic and somehow intuitive, provided he fired a separate shot towards every single person is to claim that there were as many crimes as victims. It may be easily treated otherwise if facts are slightly modified. If one bullet penetrated A and also B eventually hitting C – undoubtedly one act led to the death of 3 individuals (there was one pulling of a trigger and one bullet flying).

Another alternative – he used an automatic rifle and by one pressing of a trigger released dozens of bullets into the crowd leaving numerous casualties. Here we seem to have only one activity. Similarly, to the situation of a hand grenade being tossed into a small venue full of people. A single human activity is impossible to be divided or dissected into smaller parts.

Theory of a continuous act stems from the above distinctions and accompanying intuitions. You commit a crime in a way it seems that you actually perform several acts, but it is only because you chose a particular modus operandi only because it is difficult or even impossible to execute your premeditated plan as smooth as desired (e.g. one has a Beretta instead of M-16 and wants to kill 30 people in a restaurant).  However, it may as well have an unambiguous effect on the scope of criminal liability. If there is a crime of aggravated murder provided by the law combining “regular” murders into one, it may result in more severe liability. But if there is no distinction in this area (only a regular type murder) such an operation acts to the benefit of a perpetrator because he will not be charged with several murders but one “continuous” one. As you may see, it all depends on the normative context.

One act described from various perspectives

Let’s go back to the most straightforward scenario – 11 shots = 11 deaths.

What if there are other elements of other crimes which the firing meets? We may read that the Pittsburgh shooter was charged with (:

• Eleven counts of obstruction of free exercise of religious beliefs resulting in death;
• Eleven counts of use and discharge of a firearm to commit murder during and in relation to a crime of violence;
• Two counts of obstruction of free exercise of religious beliefs involving an attempt to kill and use of a dangerous weapon and resulting in bodily injury;
• Eleven counts of use and discharge of a firearm during and in relation to a crime of violence;
• Eight counts of obstruction of free exercise of religious beliefs involving an attempt to kill and use of a dangerous weapon, and resulting in bodily injury to a public safety officer; and
• One count of obstruction of free exercise of religious beliefs involving the use of a dangerous weapon and resulting in bodily injury to a public safety officer.”

If found guilty of all counts, the suspect faces a chance of the death penalty or a life sentence without parole followed by 535 years in prison.

That shows another issue here. Counts (units of prosecution?) do not reflect the actual number of human acts. They represent a purely normative approach to an act as a basis for criminal liability. Thus, in legal language artificially there are as many acts as results or norms broken, etc. Why does it even matter? Well, it makes criminal trial (if there is one at all) less complicated in establishing what criminal evaluation shall reflect the perpetrator. We know precisely what norms have been broken and just apply them all.

But you may find other ways to solve that issue. For example, in California Criminal Code we may read in art. 654 that

“An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”

It resembles in a way also Polish Criminal Code in its fundamental declaration in art. 11 that

“§ 1. The same act may constitute only a single crime.2. If an act fulfills the elements provided for in two or more provisions of a criminal statute, the court imposes the conviction for a single crime based on all concurring provisions.3. In the situation referred to in § 2, the court imposes a penalty according to the provision prescribing the most severe penalty, yet that does not impede the imposition of other measures prescribed by any of the concurring statutory provisions.”

This sort of regulation seems closer to the ontological approach to an act. We, of course, put a normative perspective on reality, but first we need to correctly describe the reality. Eventually you will be punished only for the most severe crime as the statutory scope of the penalty reflects the need for punishment. Once. Period.

Substantive law meets procedure and they have an argument

However, some significant issues arise with substantive criminal law intersecting with procedural law. The prosecution must describe the activity(-is) which are to be deemed as criminal and result in the indictment. So, despite the above-mentioned normative solutions, it is the prime role of the prosecution to decide what would be the object of the investigation/case. It may be either difficult or easy, depending on the crime in question. Possession of prohibited items may be relatively uncomplicated to deal with – in most cases it should be deemed as constituting only one (lasting) crime (look into U.S.C. 1522).

But another statistically common crime – larceny – may pose unexpected difficulties. Similar to shooting – one may decide to steal from a store in several installments (during one heist) because the desired amount of i.a. electronics including TVs and laptops exceeds his carrying abilities. So, he must go back and forth 5 times until the car is loaded. Technically each act of taking others’ property meets the elements of a criminal act of larceny (I believe that theft is described similar everywhere). Is it thus legitimate to claim that he committed 5 separate crimes? We can make it more complex by tweaking the case a little bit – let’s say that every time in order to take tablets he must break some protective cabinet glass. Can we say he committed a total of 10 crimes – 5 thefts and 5 crimes of intentional destruction of property? Dear prosecution – good luck!

Law vs. reality

It is not that there are some objective truths with respect to this area of criminal law. Many normative solutions stem from historical and cultural backgrounds strengthening a particular way of perceiving reality. But there for sure need to be some rational limits to the artificial description of reality for the purpose of applying the criminal law. If the law must reflect out ideas of the real world, it should not provide concepts transparently inconsistent with common sense.