"Dangerous Instruments": A Case Study in Overcriminalization.

• Author: Flanders, Chad
• Position: Case study

1. INTRODUCTION

   Many states--including Missouri--have provisions that provide greater punishment for some felonies that are committed with, or by the use of, a "deadly weapon" or "dangerous instrument." (1) The definition of "deadly weapon" tends to be pretty straightforward, usually a list that includes several specific items that just are deadly weapons, such as guns and knives. (2) "Dangerous instrument" is deliberately left as a broader, more capacious term-defined not in terms of a list of instruments but in terms of those things that could be easily or "readily" used to cause serious physical injury or death. (3) But precisely because of the broad sweep of what counts as a dangerous instrument, and the role circumstances can play in making something dangerous, courts in Missouri have taken widely divergent stances on the definition of "dangerous instruments," both in general and in particular cases.

   Consider the following representative cases:

   Case 1: A drunk driver rides through a heavily trafficked pedestrian area in the middle of the night. He hits someone and is charged, not just with second degree (reckless) assault but also with committing a felony with a dangerous instrument--his vehicle. The court, in affirming the conviction on the second charge, reasons that the car in these circumstances was an "instrument" that was "readily capable of causing death or physical injury" and that the driver knew that at the time, even though he might not have intended to use his car as a dangerous instrument. Is this right? Are cars always dangerous instruments, or just in some cases? Should it matter that the driver did not intend to cause serious physical injury or death by driving and was at most merely reckless? (4)

   Case 2: A man uses an ice pick to shred the tires of his former lover's car. The ice pick, everyone concedes, could in almost any circumstance be used to cause someone serious physical injury, or even kill them. But at the time of the tire shredding, no one was in the area. Based on this fact, the court concludes that the ice pick was not "readily capable" of causing someone serious physical injury. Is this right? What if someone suddenly came upon the man while he was using the ice pick--would the proximity of the person transform the ice pick into a dangerous instrument? What if the man had an accomplice with him? And why is the risk to the person holding the ice pick not enough? Or is the better rule that an ice pick is always a dangerous instrument, even if someone is not around? (5)

   Case 3: A person repeatedly hits someone with his fist, causing that person serious physical injury. He is charged with assault by use of a dangerous instrument--his hands. A court affirms the conviction. Is this right? Are hands really "instruments"? And again, what makes them dangerous: does a person have to intend his hands and fists (or elbows or feet) to be used as dangerous instruments to make them so? Is it an easier case, or the same case, if the person has a prosthetic arm? What if the person is wearing leather gloves (or even a ring), which would add to the harmfulness of the injury -but only imperceptibly? Do the gloves then become the dangerous instruments? (6)

   Missouri courts have not provided consistent guidance on how to proceed in these cases, although in recent years, some judges have urged rather broad understandings of "dangerous instrument." (7) But courts should not aim at a broad reading unless that is actually the proper reading of the statute, and it is not clear that a broad reading here is the correct one. Moreover, in the context of criminal law especially, an overly broad reading of a statute can lead to problems of vagueness. People should not be left to guess what things or objects (or body parts) are or are not dangerous instruments. An easy fix to the vagueness problem is to require that the offender have the purpose of causing serious physical injury or death by means of the instrument. Even if a dangerous instrument can be any number of things, it is enough to put people on notice that if they use a thing with the purpose of causing serious physical injury or death, then they will face a greater punishment--because they will have made the thing into a dangerous instrument by their intention. In this paper, we urge courts to embrace this "intentional" reading of what makes something a dangerous instrument.

   This paper proceeds in three parts. Part II gives an overview of the development of the law on dangerous instruments in Missouri, mainly by contrasting dangerous instruments with deadly weapons. As noted above, deadly weapons are (in Missouri) mostly just listed, and it is clear from that list that there are some things that are harmless (e.g., an unloaded gun) but still count as deadly weapons. By comparison, dangerous instruments are things that are not necessarily dangerous but could become dangerous. But what circumstances make something "dangerous"? The stakes involved in defining dangerous instruments can be high. In Missouri, adding an Armed Criminal Action ("ACA") conviction on top of a felony conviction can add years--or even decades--to a sentence. (8)

   Part III looks at some of the puzzles that have developed in the law based on the three cases listed above. Some courts in Missouri give an expansive reading of what circumstances make a thing dangerous, some tend in the direction that some things are in fact inherently dangerous, and some (the approach we favor) look to the purpose for which a person is using the instrument to determine whether in those circumstances it is "dangerous." The problems in defining "dangerous instruments," in fact, are deep and wide-ranging--because courts seem to disagree on almost every aspect of "dangerous instrument." Which circumstances are most salient in deciding when something is "dangerous"? What is an instrument? The point of this Part is mostly to show the variety of conflicting rules appellate courts have devised in this area and to identify what seems to us the consensus approach. In the final Part, we present difficulties with the way the statute is currently being interpreted and offer a defense of our favored interpretation of the statute. The current interpretation faces two problems: it is hopelessly vague and it leads to absurd results. That is, the current interpretation leaves people to guess what is a dangerous instrument because under the right conditions almost anything could be. And this ambiguity leads to courts calling all sorts of things dangerous instruments, things that the legislature could not have possibly intended to be captured by the term "dangerous instrument." (9) The solution to this, as already intimated above, is to restrict dangerous instruments only to those which we can show that the person intended to use in a way that would cause serious physical injury or death.

   This Article is about the interpretation of a particular Missouri statute (although of a kind that is present in many other statutes), but it is also about something broader: what lawyers and scholars have called overcriminalization. (10) One problem with the complaint that American law is "overcriminalized" is that it can make sense on an abstract level but can fall apart when we get to particular examples. Which laws are unjust and need to be repealed? Once we get past some obvious candidates--drug laws, for example, or some minor (and silly) regulatory crimes (11)--it becomes harder to say which criminal laws are excessive. Certainly no one is eager to repeal laws on armed robbery or sexual assault. But with Missouri's ACA law, we believe we have an easy candidate for elimination and almost a perfect example of overcriminalization. The statute is redundant, construed broadly by the courts, and amounts in many cases to extremely lengthy sentences. In the end, legislatures are mostly responsible for attacking the phenomenon of overcriminalization. Our Article suggests, however, that courts can also properly play a role in giving narrow interpretations of these statutes, especially when a narrow reading is not only reasonable but probably correct.

2. DEADLY WEAPONS, DANGEROUS INSTRUMENTS, AND ARMED CRIMINAL ACTION

   Deadly weapons and dangerous instruments statutes usually occupy one of two roles: they either are part of defining a crime itself or they exist as part of a separate penalty-enhancement statute. For the former, first-degree robbery might be defined as a forcible stealing by use of a deadly weapon or dangerous instrument. (12) For the latter, an additional penalty may be added onto a crime if it were a crime that was committed with a dangerous instrument or deadly weapon. (13) A person might be convicted of kidnapping, then have several years added onto her sentence because the crime was accomplished through the use of a gun or knife. (14) In Missouri, the state employs its deadly weapons and dangerous instrument provisions in both ways--that is, as both part of substantive crimes and as a way to increase sentences--and both can be used at the same time. A person can be charged with first-degree robbery, which carries with it a certain sentence and then also charged with the crime of Armed Criminal Action--basically committing a crime with a deadly weapon or dangerous instrument--which adds an additional sentence of three years. Despite being a separate criminal statute (rather than part of the state's sentencing machinery), the courts, including the United States Supreme Court, have treated Missouri's ACA statute as a sort of sentencing-enhancement provision, thus removing any double jeopardy problem when a person is convicted both of committing a robbery with a deadly weapon and committing a felony with a deadly weapon. (15)

   Deadly weapons and dangerous instruments are defined separately, and the separate definitions can give us insight into how to interpret each phrase. "Deadly weapons" is a relatively...