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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."
“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.
