What sentences could be imposed on a terrorist (caught alive)? If a terrorist is caught alive, what sentence would the United States Supreme Court impose? What about the highest court in the Russian Federation? Is it death by hanging, life imprisonment, or execution with a revolver?
In the united-states, the Supreme Court would not impose a sentence; it would only consider whether the trial court imposed the correct sentence, which could include a death sentence. The U.S. Supreme Court has permitted death sentences for terrorists who have been captured alive. Most recently, the Supreme Court reinstated the death penalty for the Boston Marathon bomber in in United States v. Tsarnaev, 142 S. Ct. 1024 (2022). I don't believe any state or the federal government uses hanging or revolvers to carry out death sentences at this point. Far more common are the electric chair, gas chambers, and lethal injections. Firing squads and hangings are technically legal in some states, but I don't know that any states actually use them. In russia, capital punishment is unconstitutional. When it was in practice, it was reportedly carried out by a single executioner with a handgun. There is talk of reinstating the death penalty, and of course, there is reason to believe Russia continues to carry out capital punishment extrajudicially.
Doing nothing is legally safer than doing something, but you're not without hope if you pull the lever. Although you'll likely have committed murder or at least manslaughter, case law is littered with lenience in exigent circumstances, even where convictions have been affirmed. Because this is a philosophical problem, there are plenty of opinions from that perspective, but not so many from a legal standpoint. Let's assume that you're an innocent bystander, (not an employee of the railway company or the train company, etc) and have no duty to act. If you do nothing, then it is unlikely that you would be charged with a crime - you had no duty to fulfill, and therefore not negligent. There's little doubt that not pulling the lever is the safer option. More interesting is when you choose to pull the lever - then it's probable that you would have charges of murder, or at least manslaughter, brought against you by the state. What defenses does the law offer? Let's assume that you are aware that pulling the lever will kill a person. The primary defence is a legal principle of necessity: where your criminal actions are not protected or excluded by some other statute or principle, the fact that you were obliged to take this action in order to prevent some greater harm may safeguard you from penalties. There are certain elements of necessity: That you did not create the danger that caused you to commit the crime; That you ceased the criminal activity as soon as practicably possible; That you had no reasonable alternative; and The harm that you prevented was greater than the harm that you caused. I see such a defense only possibly falling over on (4), where the prevented and caused harm, in the case of human lives, are inherently very subjective. Unfortunately, each state has different rulings regarding the threshold for evidence of this defense. One of the most famous cases where necessity was attempted as a defense to murder, with remarkable parallels to this hypothetical, is that of R v Dudley and Stephens: A crew of four found themselves on a lifeboat at sea with no food and no water, and with no prospect of rescue. One of them was a child (Parker) and was nearing death and unconscious. Two of them (Dudley and Stephens), after some discussion over drawing lots, decided that the child would be killed before his natural death, in order that his blood be better preserved for drinking. The last crew member, Brooks, was silent on the matter. After killing Parker, Dudley, Stephens and Brooks fed on Parker's body. During the trial, the matter of necessity as a defense to murder was considered. The judges found that there was no common law defence of necessity to murder, and Dudley and Stephens were sentenced to death with a recommendation for mercy. The Home Secretary commuted their sentences to six months' imprisonment. This case concerns essentially the choice you're making in the trolley problem: either the four crew members were going to die, or one of them would definitely die and the others might live. It's easy to say that they should have just waited, but they didn't have the benefit of hindsight. It's also a great example of a situation where although the law says one thing, it doesn't align with our morals and ethics, and while it's a UK case, I would wager that almost every lawyer in common law countries would have heard about it.
What Is Treason? Treason is the only crime defined in the U.S. Constitution, at Article III, Section 3 which says: Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. Now let's apply that to your examples. Options For Dealing With The Secretary Secretary X refuses to perform his duty, he can be fired. But does that count as treason? When would his refusal count as treason, if ever. I am assuming that Secretary X is a civilian and not an active duty member of the military forces. The law requires this but there is a process by which a waiver of that limitation can be obtained. But, it is useful in any case to point out the differences between a senior civilian governmental official and a member of the military (different issues still would apply to civilian civil servants who are not political employees and are members of a civil servant's union as well). It would be hard to imagine a fact pattern in which mere failure to perform his duties would constitute treason, although I wouldn't necessarily say that it is categorically impossible that such fact pattern might exist. The President could fire the Secretary for failure to perform his duty, or for that matter, for no reason whatsoever, and appoint someone else to be acting Secretary. If the Secretary also committed some crime by doing more than simply failing to act in some respect (e.g. engaging in espionage), the process would be the same as any other federal criminal prosecution. But, you could fire someone and deny them all authority immediately and without due process or cause, while you would need probable cause to bring criminal charges. Options For Dealing With General A General A is suspected of plotting treason either by conspiring with a foreign power or plotting a coup. The President can investigate the claims and find if there is probable cause to believe that General A is engaged in this conduct, and if so, can order the General's arrest. The General could be tried in a Court Martial for conduct in violation of the Uniform Code of Military Justice, but, treason is not a crime covered by the UCMJ. The applicable offense for a coup participant under the UCMJ would be Article 94: ART. 94. MUTINY OR SEDITION (a) Any person subject to this chapter who-- (1) with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny; (2) with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or disturbance against that authority is guilty of sedition; (3) fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition. (b) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court- martial may direct. The President, however, also has the power to order any member of the military to do just about anything, with or without cause. For example, the President would be entirely within his rights to order General A to report to the Barracks at Fort Levenworth (a military prison) or to a maintenance detail in a South Korean Army base, as active duty personnel individual assigned to that duty (i.e. not detained as a prisoner) and to await further orders. If General A disobeyed this order, then General A would have committed an offense under the UCMJ and could be detained and tried for violating a valid military order. Thus, the President could assign suspected coup participants to duties where they would not be helpful in carrying out a coup without due process even though he couldn't have them arrested on a mere suspicion, even under the UCMJ. The President can't just reduce the General's rank outright, as the General has a property interest in that rank earned over the course of a career. It would take a Courts-Martial to do that. But, the General could be assigned to a new post with the same rank at any time without due process. Suspension of Habeas Corpus Is the belief that a coup is underway enough evidence to suspend Posse Comitatus or Habeas Corpus. I'll address the first part of this question under this heading and the second part under the next heading. The suspension of Habeas Corpus is discussed at Article I, Section 9, Clause 2 of the United States Constitution (pertaining to the legislative branch) and states: The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. By implication, the fact that the provision is located in Article I pertaining to Congress and not Article II pertaining to the Presidency or Article III pertaining to the judicial branch, suggests that only Congress main suspend the writ of habeas corpus. A Civil War case addressed this separation of powers issue and held that the President may not suspend the Writ of Habeas corpus without the approval of Congress, but its status as valid precedent is contested: Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487), is a well-known and controversial U.S. federal court case which arose out of the American Civil War. It was a test of the authority of the President to suspend "the privilege of the writ of habeas corpus" under the Constitution's Suspension Clause, when Congress was in recess and therefore unavailable to do so itself. U.S. Supreme Court Chief Justice Roger Taney ruled that the authority to suspend habeas corpus lay exclusively with Congress. The Executive Branch, including the Army, failed to comply with Taney's Merryman opinion, and John Merryman remained inaccessible to the judiciary (and the civilian legal authorities generally) while Congress remained in recess. Taney filed his Merryman decision with the United States Circuit Court for the District of Maryland, but it is unclear if Taney's decision was a circuit court decision. One view, based in part on Taney's handwritten copy of his decision in Merryman, is that Taney heard the habeas action under special authority granted to federal judges by Section 14 of the Judiciary Act of 1789. According to this view, Merryman was an in-chambers decision. Due to its vague jurisdictional locus and hastened disposition, the nature of the Merryman decision remains contested to this day. The separation of powers issue regarding the power of the President to suspend the writ of habeas corpus was not addressed squarely in the later and more famous Ex Parte Milligan, 72 U.S. 2 (1866) (which undisputedly remains good law) which held that neither the President nor Congress could suspend the writ of habeas corpus to allow the trial of civilians within the United States by a military tribunal outside a war zone. As Wikipedia explains: The president's ability to suspend the writ of habeas corpus without congressional approval was not addressed in this case, most likely because it was a moot issue with respect to the case at hand. (President Lincoln suspended the writ nationwide on September 24, 1862, and Congress ratified this action on March 3, 1863, with the Habeas Corpus Suspension Act. Milligan was detained in October 1864, more than a year after Congress formally suspended the writ.) The intertwined political and legal history of habeas corpus suspension in the United States is addressed here. A coup is generally not an invasion, although it could be if coordinated with a foreign power. Instead, a coup would probably be a form of a rebellion, which could justify the suspension of habeas corpus. So, Congress could probably suspend the writ of habeas corpus if it felt that a particular coup was a rebellion. A Congressional determination that a particular coup was a rebellion for purposes of suspension of the writ of habeas corpus would probably be a political question beyond court review. But, Congress could do this only once the rebellion was actually in progress and not merely contemplated. This is because, as Milligan makes clear, suspending habeas corpus in advance of an active rebellion that prevents the courts from functioning is unconstitutional anyway. Honestly though, suspension of habeas corpus would probably be pretty irrelevant in a coup. Typically, a coup lasts for a matter of hours or days, maybe a couple of weeks tops. Courts in which one could seek redress from allegedly unlawful detention using a writ of habeas corpus simply don't act that fast, and Congress would be hard pressed to act that fast as well. The coup will have prevailed (in which case the constitution is basically irrelevant) or will have failed (in which case habeas corpus will provide little relief to coup participants) by the time that the courts can get involved. Also, since a coup generally involves members of the military, whose habeas corpus rights arise only once they have exhausted their avenues for relief under the Uniform Code of Military Justice, the writ of habeas corpus wouldn't be a remedy available to them anyway. The suspension of the writ of habeas corpus would only be relevant to civilians involved in the coup, who are tried after Congress has suspended the writ, and who have been detained long enough for judicial relief from military detention to be relevant. Also, the post-9-11 experience has been that, contrary to common belief, civilian courts are actually a faster way of resolving cases of non-uniformed persons who commit violent, war-like acts than military tribunals and impose penalties that are just as harsh as those imposed by military tribunals. Convicting these people turns out to be easy. Indeed, in practice, many rebels and terrorists openly admit their crimes without even receiving plea bargains in exchange. So, there would be little benefit to be gained from suspending the writ of habeas corpus in order to allow the use of military tribunals rather than civilian courts to punish civilian participants in a coup. Why Would The President Want To Suspend Posse Comitatus? It makes no sense, however, to talk about suspending the Posse Comitatus Act during a coup, which is exactly the opposite of what you would want the military to do in that situation, if you are the legitimate President. You would want to suspend the Posse Comitatus Act and related laws when there was a grass roots insurgency or an invasion that had not penetrated the military, not during a coup. A coup d'etat is the recognition of the authority of someone other than the legitimate political leaders of a country as the leader of a country in a manner that denies the legitimate political leaders of a country authority by its own military or some subset of that military. The Posse Comitatus Act passed in 1878, 18 U.S.C. § 1385, is a criminal law passed by Congress that makes it a crime to use the military to enforce domestic law, especially criminal law, within the territory of the United States outside military bases (although the term Posse Comitatus is sometimes used more colloquially to refer to a group of laws and regulations with the same effect including but not limited to the true Posse Comitatus Act, such as the Insurrection Act of 1807, 10 U.S.C. §§ 331–335). In a coup, by definition, the military is following illegitimate leaders and the whole point is to prevent martial law from being imposed by the military in that situation, which Posse Comitatus is supposed to prevent them from doing. Coup participants could be prosecuted for violating the Posse Comitatus Act by imposing martial law while they are members of the U.S. military on active duty. It would make no sense for the President to suspend it.
Murder is one of the few cases where the intention and not just the act is relevant. The act – killing a person – is the same for Mord and Totschlag, whereas fahrlässige Tötung covers acts that have caused the death of a person. The language of the Stgb labels the perpetrator who killed someone as a murderer or manslaughterer depending on their intention. That a person and not an act is punished is often criticized, but it has no practical consequence. Clearly, the intention isn't that the second one is free. Courts are able to interpret the law reasonably. However, the distinction between two kinds of killings seems to have no basis in reality and robs courts from flexibility to find a just sentence. There are occasional attempts at reform, but none will be successful while CDU/CSU is part of the government.
First, I need to correct a misconception you seem to have. The length of time you spend in jail does not normally determine if something is a felony or a misdemeanor. Whether something is a felony or a misdemeanor is based on how you're charged. And it's not like you happen to be charged with something with a maximum sentence of 365 or 366 days; if you are being charged with a felony, it's because the decision was made that your alleged crime was serious and should be treated as a felony. If you're being charged with a misdemeanor, ditto. Prosecutors charge knowing the difference between the two. The distinction was not originally &quot;punishable by more than a year in prison&quot; vs. &quot;punishable by at most a year.&quot; In fact, it originated well before the idea that the default punishment for most crimes is confinement for a term, where the term is dependent on the severity of the crime. The original distinction was about forfeiture. A felony was a violation of a feudal relationship between a lord and a vassal; if a vassal violates their duty of loyalty to their lord, their relationship ends and their property is forfeit to that lord. Not all serious crimes were felonies. Murder was normally not a felony, because it didn't violate that duty of loyalty. Later on (post-Normans), murder and other serious crimes did result in forfeiture. The term broadened to include these crimes; at this point, &quot;felony&quot; meant &quot;this crime results in your property being forfeit.&quot; These were also the most severe crimes. This is the point where &quot;felony&quot; meaning &quot;exceptionally severe crime&quot; really became established. However, the technical distinction based on forfeiture became muddied, because of another punishment that almost always went along with it: execution. Blackstone, in his Commentaries on the Laws of England, complained that people are mixing these two up. The meaning generally shifted to &quot;crimes which were punished by death,&quot; but scholars did know that the proper meaning should really be &quot;crimes punished with forfeiture.&quot; The distinction mattered. Because felonies were so serious, the procedure involved differed in several respects. I happen to know you're in the US and my main source is also about the US, so let's hop across the Atlantic Ocean to the colonies. Here, forfeiture was pretty much unknown around the time of independence. The popular understanding of &quot;felony&quot; was still &quot;capital crime;&quot; the legal understanding tended to be &quot;the common-law felonies plus things the legislature designated as a felony.&quot; Nearer the end of the 18th century, the number of crimes punishable by death dropped substantially in the US. The default punishment for most serious crimes shifted from execution to confinement in a prison (this is when prison became the default sentence for even very serious crimes in the US). These new prisons were very different from the older jails: they were designed to reform their inmates, and turn them into productive members of society. But not all crimes need that; with less serious crimes, you don't have to go about fixing a character flaw, you just have to show to the criminal that doing this bad thing results in this punishment. The lack of a firm definition of felony became a serious problem shortly after this change. Originally in the US, things worked basically like in England. Legislatures passed laws, which might refer to older laws by name, but there was no organizing principle. Lots of the criminal law was bound up in precedent. It was extremely difficult to find out for sure what the law even was. Instead, there was a major push to codify the law. That means you would have a code, which contained, in organized form, all the laws relating to crime. One of the earliest and most influential American penal codes was actually never adopted. It was written by Edward Livingstone for Louisiana, and was intended to wholly supplant the common law (Louisiana would be the perfect state for this, because it still has a civil law tradition). Livingston didn't use the term &quot;felony,&quot; but did distinguish between &quot;crimes&quot; and &quot;misdemeanors.&quot; The main systematic difference was not in the penal code itself (the punishments were set out on a crime-by-crime basis), but in the corrections code. Crimes were punished in a penitentiary designed to reform the prisoner; misdemeanors were punished by simple imprisonment. Crimes were all punished by more than a year, while misdemeanors could be punished by anywhere from a few days to two years. The important thing was where and how you were punished, not for how long. While this code was never adopted, it had a major influence on the New York code of 1829. The New York code was designed to rationalize the law, but not do too much in the way of substantive changes. In particular, the old idea of a &quot;felony&quot; was not abolished; it was preserved, with real significance (part of the point of keeping the term was that they didn't want to lose all its baggage), and so it needed a definition. They basically adopted Livingstone's definition. Felonies were always the more serious crimes; since serious crimes were now evidence of character flaws to be reformed in a penitentiary, the crimes where you got sent for reform were the felonies (plus, of course, those punished by death). All others were misdemeanors. They also decided that punishment for more than a year, in a jail that's not designed to reform you, was bad; no jail sentence could be more than a year. Since confinement continues to be the main form of punishment, this definition has managed to stick without issue. The forfeiture and capital punishment definitions became obsolete as those punishments became completely obsolete or very, very limited in use. That's pretty much how things got where they are now. It makes some amount of sense to distinguish between bad crimes and not-so-bad crimes, without needing to list out the bad crimes. This is not actually unique to English law; the French penal code also makes this distinction. The term survived the feudal context in which it originated because it was useful. As confinement became the main type of punishment, and as (at the same time) confinement for serious crimes was paired with efforts to reform and rehabilitate criminals, the old distinction shifted to distinguishing between things where you needed that reform and things where you just needed punishment. Then, it shifted in some places to being about the length of said punishment, as an alternative way of expressing the same basic idea but which could be more easily applied to varying systems. Main source: Will Tress, Unintended Collateral Consequences: Defining Felony in the Early American Republic, 57 Clev. St. L. Rev. 461 (2009)
Murder carries certain penalties, and attempted murder is distinguished from murder only with respect to penalty. Without the circumstances allowing execution, the punishments are life without parole, life with possible parole after 20 years, or a definite term of 50 years with possible parole after 20. There are separate "enhancements" for crimes against elders or use of a deadly weapon, and if these circumstances exist, they are applicable to both murder and attempted murder. In all cases of enhancements, the enhancement cannot exceed the penalty for the crime (also, it runs consecutively). The punishment for attempted murder is not the same as the punishment for murder: since murder is a class A felony, attempted murder is defined as a class B felony, which has a penalty between 2 and 20 years. Compare that to actual murder which carries a minimum sentence of 50 years. In no case can a person committing actual murder serve less time than a person attempting murder, even with "enhancements".
It’s complicated. Most crimes in DC that would be state crimes elsewhere are punished under the DC Code, which was at one point written by Congress but which the DC Council now has the power to amend (subject to Congress’s right to change it at any time). Crimes under the DC Code are tried in the DC Superior Court, which is generally considered a local court. Its judges are appointed by the President (subject to Senate confirmation) for 15-year terms, but the President must pick from a list made by a commission with both federal and local membership. Appeals from Superior Court go to the DC Court of Appeals, which is not the same as the US Court of Appeals for the DC Circuit. From the DC Court of Appeals, appeals go to SCOTUS just like appeals from state supreme courts. Prosecution can be done by the city Attorney General (normally handles misdemeanors) or the federal US Attorney for the DC District (normally handles felonies). Jails are handled by a city department, prison terms are handled by the federal BOP. DC is in the special territorial jurisdiction of the United States, so many generic federal crimes apply there. However, in practice they are not charged in US District Court as violations of the US Code but in DC Superior Court as violations of the DC Code. For double jeopardy and many other constitutional purposes, the DC Code has to comply with restrictions on federal power. This is part of the reason Heller was brought in DC: gun rights groups wanted to set a precedent under the 2nd Amendment before they had to argue that it applied to the states under the 14th.
So I'm fascinated with the OJ trial and I've read a ton about it. I'll try to answer your question both accepting your premise as true, and then also going into what actually happened. First of all, jury nullification cannot be overturned in the US. The double jeopardy clause forbids it. This is such a powerful tool, in fact, that there are strict rules that prevent defense lawyers from mentioning or even hinting at jury nullification, in front of the jury, in almost all circumstances. It doesn't mean D is safe from all legal liability. OJ, obviously, was found liable in the civil trial. Sometimes other jurisdictions can prosecute. For example, after the officers in the Rodney King beating were acquitted in state court, the federal government got them for violating federal hate crime statutes. Second, looking at your premise. If jurors think D is guilty, but also being framed, that's not necessarily jury nullification. Remember, a criminal defendant must be proved guilty beyond a reasonable doubt. That means that 'probably guilty' means 'not guilty.' That said, there may be times when a jury is convinced beyond a reasonable doubt of a defendant's guilt, but is so disgusted by the police tactics used in the case that they acquit. This would be jury nullification. What actually happened in the OJ case: Mark Fuhrman perjured himself on the stand. He lied and said he'd never said the N word, and the defense produced tapes of him saying it a ton. The defense recalled him to the stand. Because perjury is a serious crime, this time he came in with his own defense lawyer, and did nothing but take the fifth on the stand. In a genius move, OJ's defense team asked him whether he planted any evidence in the OJ case. He didn't deny it, instead he took the fifth (again, as he was doing to every question). This was enough to sow reasonable doubt about OJ's guilt based on the evidence in that trial (there's obviously no actual doubt, in real life, that he's guilty). So, what actually happened wasn't jury nullification.