Sorry, I don't know the proper English phrase.
Essentially, for example in the Polish legal system, the concept of crime aggregation/absorption is implemented by two rules:
- absorption of a "weaker" crime by a "stronger" one - i.e. if someone takes an action which falls within the scope of more than one criminal law provision, then he is only charged with the crime that carries the highest penalty and he can be sentenced under the "weaker" crime only if he is aquitted of the more serious crime (e.g. if someone drives a car under an influence of alcohol and causes an accident in which someone dies, he will be charged with manslaughter, but will not be separately charged with DUI or dangerous driving).
- aggregation of several crimes remaining in relation to each other into one, continuous crime (e.g. if someone works at a store and steals a packet of cigarettes every day for 30 days, then he is not going to be charged with 30 cases of petty theft, but one case of theft of the item(s) of the value equal to 30 packets of cigarettes).
From various reports about the US criminal law system, it seems to me that these rules do not necessarily apply and I just wanted to clarify that.
Absorption is usually referred to as "merger" of a "lesser included offense"
No.
Quote from: The Minsky Moment on January 23, 2013, 10:49:24 AM
Absorption is usually referred to as "merger" of a "lesser included offense"
That doesn't seem to be quite the same thing as Marti is talking about though.
http://en.wikipedia.org/wiki/Lesser_included_offense
Not quite the same, but we do have the "Felony murder rule", which means if Suspect "A" tries to rob a 7-11, and store clerk "B" pulls out a shotgun and opens fire killing Slurpee-ordering Grandpa "C" over in the corner , then "A" will be charged with the felony murder (not some weenie manslaughter, or criminal negligence) of "C".
I would've expected one of the American lawyers to explain it a bit more, but we have a concept like that but not entirely the same.
If I rob a bank, kidnap one of the tellers, take her back to my house and rape her and then kill her, I will be charged with a lot more than just murder.
However, just as an example because of several aggravating factors mentioned in said escapade, I'd be charged with capital murder (Virginia is a death penalty state.) I wouldn't be charged with manslaughter or second degree murder, because those are "lesser included offenses."
But I could still be charged with hostage taking, but not with kidnapping (kidnapping is a lesser included offense to hostage-taking.)
I'd be charged with rape, but not aggravated sexual battery or sexual battery, because those are lesser included.
But the core crimes: robbing the bank, taking a hostage, rape, murder, would not all aggregate to murder. I couldn't be charged with multiple classes of each core crime, but I would be charged with each crime. If any of the said crimes was especially difficult to prove, it's possible the prosecutor would choose not to pursue it. Say I committed the rape with a condom and clothed her afterward, and disposed of the condom and they had no direct physical evidence I raped her. They'd probably not pursue it unless they had a confession. Reason? Killing someone who I had taken as a hostage still keeps it at capital murder level. If "all" I did was rape and murder, they'd be unwilling to drop either because without an aggravating factor it isn't capital murder, and something like rape, hostage taking, victim being a police officer or young child etc are necessary to kick it up to a gurney and a needle.
Even if this concept doesn't exist, isn't the same effect achieved by sentencing the prisoner to concurrent rather than consecutive terms in prison?
Quote from: OttoVonBismarck on January 23, 2013, 08:55:40 PM
If I rob a bank, kidnap one of the tellers, take her back to my house and rape her and then kill her, I will be charged with a lot more than just murder.
Well, that wouldn't be absorbed into only murder charges under Polish law either. However, if you were charged with bank robbery there, you wouldn't also be charged with, say, threatening someone with a gun and theft.
I think the second rule (aggregation) I mentioned is more important though, as it seems you guys don't have it and yet noone addressed it.
Quote from: Viking on January 23, 2013, 11:49:03 PM
Even if this concept doesn't exist, isn't the same effect achieved by sentencing the prisoner to concurrent rather than consecutive terms in prison?
Not necessarily, especially not with respect to the aggregation rule.
Quote from: Martinus on January 24, 2013, 01:47:54 AM
I think the second rule (aggregation) I mentioned is more important though, as it seems you guys don't have it and yet noone addressed it.
I would have no idea, though I know they use it often on Law & Order when otherwise statue of limitations would have run out. :D
http://thelawdictionary.org/continuous-crime/
Quote from: garbon on January 24, 2013, 02:11:43 AM
Quote from: Martinus on January 24, 2013, 01:47:54 AM
I think the second rule (aggregation) I mentioned is more important though, as it seems you guys don't have it and yet noone addressed it.
I would have no idea, though I know they use it often on Law & Order when otherwise statue of limitations would have run out. :D
http://thelawdictionary.org/continuous-crime/
That's a different thing. We have a concept of continuous crime in Polish law as well, but the one I am describing is called a "sequence of crimes".
It is essentially a sequence of broadly speaking, similar crimes, committed by the same person with a similar modus operandi over an extended period of time, when there are time gaps between individual crimes.
Usually, this applies to people who have made a living out of a crime, such as pick pockets.
For example, the NY guy who killed himself recently, would be most likely charged with a sequence of crimes involving hacking and illegally downloading restricted material, and not, say, 60 separate instances of doing this.
Quote from: Martinus on January 24, 2013, 02:29:15 AM
For example, the NY guy who killed himself recently, would be most likely charged with a sequence of crimes involving hacking and illegally downloading restricted material, and not, say, 60 separate instances of doing this.
But he had multiple victims. Are you saying that'd be treated as just one crime?
Quote from: garbon on January 24, 2013, 02:43:06 AM
Quote from: Martinus on January 24, 2013, 02:29:15 AM
For example, the NY guy who killed himself recently, would be most likely charged with a sequence of crimes involving hacking and illegally downloading restricted material, and not, say, 60 separate instances of doing this.
But he had multiple victims. Are you saying that'd be treated as just one crime?
Yes. Although it would probably bump the severity of it based on the total value of the items he stole.
In England, I think the position is that no single indictment should charge a defendant with more than one offence (I'm not sure if this is what you're after and never studied it, so I could be wrong) if it does it can be a duplicitous indictment, which is a formal error that could lead to the defence successfully quashing it. At the same time indictments can't be overloaded.
But it's generally applied practically, here's the CPS's current guidelines:
QuoteThe following guidelines emerge from the case law:
one offence should be charged in one count if it comprises a single act - even if the offence has more than one victim or involves activities in respect of more than one item of property;
where two or more acts of a similar nature committed by one or more defendants are connected in time and place of commission, or by common purpose, they can be charged in a single count;
where the wording of the particular statute makes it clear that only one offence is created but provides two or more alternative ways of committing that one offence, then each alternative way should be made the subject of a separate count in the indictment. The only exception to this is where case law has established that, in a particular case, the placing of alternative ways in the same count will not be regarded as bad for duplicity; and
in any case where there is doubt as to whether the language of the particular statute creates more than one offence, it will always be safer to charge two or more counts.
I think Lord Morris's description of an offence is still good law 'if A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or five? If A in the dwelling-house of B steals ten different chattels ... it will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act'.
In your example it could be classed as a continuous offence, again the CPS guidelines:
QuoteContinuous offences
The concept of a continuous offence is a legal device that permits the charging of a series of offences of the same type in one count. This applies where it is not possible to state with certainty which particular activity occurred at a particular time.
For example, in R v Cain (1983) Crim.L.R.802 the defendant had been found in possession of a quantity of goods stolen from his employer over a period of time with no evidence to establish when each item had been taken. There was nothing wrong with charging all of the items in a single count.
A continuous offence should be charged as occurring '... between ...' two dates. The use of '... on divers days ...' is not appropriate and may give rise to an application to quash for duplicity.
But we don't have aggregation, so far as I know, as it exists in Polish law because there's been a number of Supreme Court cases over aggregation within the context of the European Arrest Warrant :)
As I say I never studied this and haven't looked into it properly, so I could be wrong, but that's my rough understanding :)
Incidentally, we also have (rather complex) rules on aggregation of sentences, as well. In short, the sort of "sentenced to 180 years in prison" is not possible under Polish law. You can only get:
1) between 1 and 15 years in prison,
2) exactly 25 years in prison,
3) life imprisonment.
If you get several sentences of the first kind, they are all served conurrently (although the court can increase the highest one, but not more than up to 15 years and subject to further restrictions), and if you get any of 2) or 3) they consume/absorb the lower grade sentences. You can also be serving only one 25 years or life imprisonment sentence at the same time, so if you get more than one, they merge into one.
For this reason, it is also usual to merge similar cases into one and proclaim one sentence (e.g. a guy who kills 10 people at various occassions and in circumstances that do not warrant this to be treated as a continuous crime, and then faces a trial, can be tried for all 10 murder counts, and will receive a single ruling which is still subject to the above rules, so he can get either up to 15 years in prison, or 25 years or life - and not for example two 15 year sentences).
Or to be more specific, in the example I quoted, the court ruling may look like this:
"You defendant X are:
- aquited of charges of murdering person 1, 4 and 5, 7, 8, 9 and 10
- found guilty of murdering person 2, for which you are sentenced to 10 years in prison,
- found guilty of manslaughter of person 3, for which you are sentenced to 3 years in prison,
- found guilty of first degree murder of person 6, for which you are sentenced to 25 years in prison,
therefore you are given an aggregate sentence of 25 years in prison."
Quote from: Martinus on January 24, 2013, 01:47:54 AM
I think the second rule (aggregation) I mentioned is more important though, as it seems you guys don't have it and yet noone addressed it.
it's hard to answer because the US has 53+ different criminal jurisdictions with different laws and rules.
Generally speaking, each separately identifiable offense can and often is chargeable separately, but it's hard to speak more concretely without a particular example in a particular jurisdiction.
On sentencing, sentences can run concurrently or consecutively; again the rules on that are pretty complex and vary by jurisdiction.
Quote from: Martinus on January 24, 2013, 01:49:10 AM
Quote from: Viking on January 23, 2013, 11:49:03 PM
Even if this concept doesn't exist, isn't the same effect achieved by sentencing the prisoner to concurrent rather than consecutive terms in prison?
Not necessarily, especially not with respect to the aggregation rule.
How does it "Not necessarily" apply to absorption?
Aggregation seems to be a bit self evident as it seems to be a way of reducing paperwork unless there is a progressively stricter sentencing policy for larger and larger crimes (which doesn't seem to be the case anywhere).
Quote from: Martinus on January 24, 2013, 12:39:33 PM
Incidentally, we also have (rather complex) rules on aggregation of sentences, as well. In short, the sort of "sentenced to 180 years in prison" is not possible under Polish law. You can only get:
1) between 1 and 15 years in prison,
2) exactly 25 years in prison,
3) life imprisonment.
If you get several sentences of the first kind, they are all served conurrently (although the court can increase the highest one, but not more than up to 15 years and subject to further restrictions), and if you get any of 2) or 3) they consume/absorb the lower grade sentences. You can also be serving only one 25 years or life imprisonment sentence at the same time, so if you get more than one, they merge into one.
For this reason, it is also usual to merge similar cases into one and proclaim one sentence (e.g. a guy who kills 10 people at various occassions and in circumstances that do not warrant this to be treated as a continuous crime, and then faces a trial, can be tried for all 10 murder counts, and will receive a single ruling which is still subject to the above rules, so he can get either up to 15 years in prison, or 25 years or life - and not for example two 15 year sentences).
I would assume that this doesn't apply to offenses committed after you've served your term for a previous crime. That is, if you murder someone and serve 25 years, then murder someone else after you get out, the court isn't blocked from sentencing you to another 25 years for the second murder, right?