Pub Date : 2006-07-10DOI: 10.1525/NCLR.2006.9.2.561
Kimberly Kessler Ferzan
Critics have long sought the abolition of the felony murder rule, arguing that it is a form of strict liability. Despite widespread criticism, the rule remains firmly entrenched in many states' criminal statutes. In "Merger and Felony Murder," Professor Claire Finkelstein reconciles herself to the current state of affairs, and seeks to make "an incremental improvement" to the doctrine. She offers a new test for felony murder's merger limitation, which she believes will make merger less "mysterious" and its application "substantially clearer." Briefly put, Finkelstein claims that to understand merger, we must recognize that it is an analytically necessary part of felony murder that the defendant commit two acts - a felony and a killing. Thus, a killing merges with the felony when we have only one act instead of two. To make this determination, Finkelstein articulates a "redescriptive" test that tells us when the felony can be redescribed as a killing. Despite this project's potential, I believe that Finkelstein's proposed merger test, far from improving our understanding of merger, further confuses the doctrine. Finkelstein starts from the false conceptual premise that felony murder requires both a felony and then a distinct act of killing. There is simply no support for this claim. Nor does the promise of this project bear out in the application of Finkelstein's test to actual cases. First, the test cannot be squared with two other limitations on felony murder liability. Second, Finkelstein's test is guilty of the very arbitrary application for which she criticizes other tests. Finally, Finkelstein unsettles the law by turning paradigmatic cases on their heads. Finkelstein's theory, while claiming to refine felony murder, ultimately abolishes the doctrine as we know it and replaces it with a doctrine that seems even more unacceptable.
{"title":"Murder After the Merger: A Commentary on Finkelstein","authors":"Kimberly Kessler Ferzan","doi":"10.1525/NCLR.2006.9.2.561","DOIUrl":"https://doi.org/10.1525/NCLR.2006.9.2.561","url":null,"abstract":"Critics have long sought the abolition of the felony murder rule, arguing that it is a form of strict liability. Despite widespread criticism, the rule remains firmly entrenched in many states' criminal statutes. In \"Merger and Felony Murder,\" Professor Claire Finkelstein reconciles herself to the current state of affairs, and seeks to make \"an incremental improvement\" to the doctrine. She offers a new test for felony murder's merger limitation, which she believes will make merger less \"mysterious\" and its application \"substantially clearer.\" Briefly put, Finkelstein claims that to understand merger, we must recognize that it is an analytically necessary part of felony murder that the defendant commit two acts - a felony and a killing. Thus, a killing merges with the felony when we have only one act instead of two. To make this determination, Finkelstein articulates a \"redescriptive\" test that tells us when the felony can be redescribed as a killing. Despite this project's potential, I believe that Finkelstein's proposed merger test, far from improving our understanding of merger, further confuses the doctrine. Finkelstein starts from the false conceptual premise that felony murder requires both a felony and then a distinct act of killing. There is simply no support for this claim. Nor does the promise of this project bear out in the application of Finkelstein's test to actual cases. First, the test cannot be squared with two other limitations on felony murder liability. Second, Finkelstein's test is guilty of the very arbitrary application for which she criticizes other tests. Finally, Finkelstein unsettles the law by turning paradigmatic cases on their heads. Finkelstein's theory, while claiming to refine felony murder, ultimately abolishes the doctrine as we know it and replaces it with a doctrine that seems even more unacceptable.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130448241","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2005-06-18DOI: 10.1525/NCLR.2005.9.1.273
Adil Ahmad Haque
International criminal law is frequently portrayed as the strong arm of the international human rights regime, an instrument designed to safeguard the dignity of each human person. There is an important truth to this characterization: international crimes involve many of the most grotesque violations of individual rights human beings inflict and endure. Yet the areas of international criminal law that are the subject of this Article apply to the doings and sufferings of individuals only indirectly. The law governing crimes against humanity and genocide frames the acts and fates of individuals against broader and darker patterns of group perpetration and group victimization. It is only within the context of group violence that international law attributes individual responsibility for wrongdoing and vindicates the rights of the individuals wronged. The conceptual mismatch between the moral individualism of human rights discourse and the collectivist structure of international criminal law requires theoretical resolution. The theory developed in Part II locates the legitimacy of institutional coercion within a structure of rights and duties linking authors of wrongs, victims of crime, and agents of punishment. As Part III explains, the need for international criminal law arises from the defective embodiment of this relational structure in social groups and failing states, defects which devolve retributive justice into cycles of escalating violence. The displacement of group vengeance by legal process is not the (broadly consequentialist) ground of the relational structure, but rather a reason for one set of social institutions rather than others to occupy a position of authority within that (broadly deontological) structure. Although the relational theory is intended as an independent contribution to the philosophy of criminal law, its cash value lies in its power to illuminate the role of group perpetration and group victimization in justifying the displacement of domestic law by international law and the intervention of international tribunals into internal armed conflict (Part IV); the relative gravity of genocide and crimes against humanity as well as the grouping of persecution and apartheid with crimes whose constituent acts cause greater physical destruction (Part V); and the roots of state resistance to international tribunals and the role of complementary jurisdiction in rationing the latter’s political capital (Part VI).The Article concludes by revisiting the grounds of the duties asserted, arguing that the duty to punish rests ultimately on the duty to protect, that invocation of the former implicitly admits failure to discharge the latter. The Article is intended as a contribution both to the growing literature surrounding the philosophical foundations of international criminal law and to traditional criminal law theory.
{"title":"Group Violence and Group Vengeance: Toward a Retributivist Theory of International Criminal Law","authors":"Adil Ahmad Haque","doi":"10.1525/NCLR.2005.9.1.273","DOIUrl":"https://doi.org/10.1525/NCLR.2005.9.1.273","url":null,"abstract":"International criminal law is frequently portrayed as the strong arm of the international human rights regime, an instrument designed to safeguard the dignity of each human person. There is an important truth to this characterization: international crimes involve many of the most grotesque violations of individual rights human beings inflict and endure. Yet the areas of international criminal law that are the subject of this Article apply to the doings and sufferings of individuals only indirectly. The law governing crimes against humanity and genocide frames the acts and fates of individuals against broader and darker patterns of group perpetration and group victimization. It is only within the context of group violence that international law attributes individual responsibility for wrongdoing and vindicates the rights of the individuals wronged. The conceptual mismatch between the moral individualism of human rights discourse and the collectivist structure of international criminal law requires theoretical resolution. The theory developed in Part II locates the legitimacy of institutional coercion within a structure of rights and duties linking authors of wrongs, victims of crime, and agents of punishment. As Part III explains, the need for international criminal law arises from the defective embodiment of this relational structure in social groups and failing states, defects which devolve retributive justice into cycles of escalating violence. The displacement of group vengeance by legal process is not the (broadly consequentialist) ground of the relational structure, but rather a reason for one set of social institutions rather than others to occupy a position of authority within that (broadly deontological) structure. Although the relational theory is intended as an independent contribution to the philosophy of criminal law, its cash value lies in its power to illuminate the role of group perpetration and group victimization in justifying the displacement of domestic law by international law and the intervention of international tribunals into internal armed conflict (Part IV); the relative gravity of genocide and crimes against humanity as well as the grouping of persecution and apartheid with crimes whose constituent acts cause greater physical destruction (Part V); and the roots of state resistance to international tribunals and the role of complementary jurisdiction in rationing the latter’s political capital (Part VI).The Article concludes by revisiting the grounds of the duties asserted, arguing that the duty to punish rests ultimately on the duty to protect, that invocation of the former implicitly admits failure to discharge the latter. The Article is intended as a contribution both to the growing literature surrounding the philosophical foundations of international criminal law and to traditional criminal law theory.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"95 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124178330","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2005-04-05DOI: 10.1525/NCLR.2006.9.2.391
I. Leader-Elliott
Chapter 2 of the Australian Commonwealth Criminal Code codifies the general principles of criminal liability. All federal criminal offenses, whether or not they appear in the substantive chapters of the Code, are subject to its provisions. Chapter 2 is based on article 2 of the American Model Penal Code and the equivalent general part of the UK Draft Criminal Code. It is, however, a more completely articulated statement of the elements of liability than either of its predecessors. This paper examines the relationship between physical and fault elements in chapter 2. It takes a Benthamite view of its provisions. Though chapter 2 was conceived as a legislative restatement of common law principles of criminal justice it can be expected to play a more significant role as a manual of instructions for the expression of legislative intentions. Chapter 2 enables the legislature to reclaim from courts the authority to define the grounds of criminal liability. There remain, however, areas of uncertainty resulting from the mismatch between the articulate clarity of most chapter 2 provisions and others that envisage the exercise of unstructured judicial discretion. Two issues in particular are discussed: liability for ulterior intentions and the effect of error or ignorance of law on criminal responsibility. The paper proposes enactment of a defense of reasonable mistake of law as a supplement to chapter 2. It concludes with an expression of hope that Australian criminal law theory might be based on a more unified consideration of legisprudence and common law.
{"title":"Benthamite Reflections on Codification of the General Principles of Criminal Liability: Towards the Panopticon","authors":"I. Leader-Elliott","doi":"10.1525/NCLR.2006.9.2.391","DOIUrl":"https://doi.org/10.1525/NCLR.2006.9.2.391","url":null,"abstract":"Chapter 2 of the Australian Commonwealth Criminal Code codifies the general principles of criminal liability. All federal criminal offenses, whether or not they appear in the substantive chapters of the Code, are subject to its provisions. Chapter 2 is based on article 2 of the American Model Penal Code and the equivalent general part of the UK Draft Criminal Code. It is, however, a more completely articulated statement of the elements of liability than either of its predecessors. This paper examines the relationship between physical and fault elements in chapter 2. It takes a Benthamite view of its provisions. Though chapter 2 was conceived as a legislative restatement of common law principles of criminal justice it can be expected to play a more significant role as a manual of instructions for the expression of legislative intentions. Chapter 2 enables the legislature to reclaim from courts the authority to define the grounds of criminal liability. There remain, however, areas of uncertainty resulting from the mismatch between the articulate clarity of most chapter 2 provisions and others that envisage the exercise of unstructured judicial discretion. Two issues in particular are discussed: liability for ulterior intentions and the effect of error or ignorance of law on criminal responsibility. The paper proposes enactment of a defense of reasonable mistake of law as a supplement to chapter 2. It concludes with an expression of hope that Australian criminal law theory might be based on a more unified consideration of legisprudence and common law.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126448739","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The retributive critics of the pardon power typically maintain that the institution of executive clemency is little more than an archaic relic of our distant monarchical past, which functions at the mere political whim of the chief executive, and is thus without any substantial rational justification. For these reasons, they argue that it should either be abolished or reformed in order to comport more closely with the procedural requirements of due process and the substantive norms of justice. I argue, however, that the chief executive's discretionary prerogative to grant mercy is best understood, in broadly Kantian terms, as an imperfect duty, namely a duty that assigns to the president a moral end (i.e., to act mercifully by granting clemency in appropriate cases), but one that allows him wide latitude in the time and manner of its fulfillment. As such, he is not (as the critics suggest) under a moral obligation to grant clemency in any particular case or even in all relevantly similar cases, at least in the absence of a clear miscarriage of justice. At the same time, the clemency power is not for that reason beyond the reach of critical moral scrutiny, since it remains a duty that attaches to the office of the chief executive, and he is thus morally accountable for its use (or misuse). In particular, if a chief executive refuses to exercise the clemency power at all, perhaps to insulate himself from potential political criticism for being soft on crime, he would be properly subject to moral condemnation for being merciless.
{"title":"The Politics of Grace: On the Moral Justification of Executive Clemency","authors":"Samuel T. Morison","doi":"10.1525/NCLR.2005.9.1.1","DOIUrl":"https://doi.org/10.1525/NCLR.2005.9.1.1","url":null,"abstract":"The retributive critics of the pardon power typically maintain that the institution of executive clemency is little more than an archaic relic of our distant monarchical past, which functions at the mere political whim of the chief executive, and is thus without any substantial rational justification. For these reasons, they argue that it should either be abolished or reformed in order to comport more closely with the procedural requirements of due process and the substantive norms of justice. I argue, however, that the chief executive's discretionary prerogative to grant mercy is best understood, in broadly Kantian terms, as an imperfect duty, namely a duty that assigns to the president a moral end (i.e., to act mercifully by granting clemency in appropriate cases), but one that allows him wide latitude in the time and manner of its fulfillment. As such, he is not (as the critics suggest) under a moral obligation to grant clemency in any particular case or even in all relevantly similar cases, at least in the absence of a clear miscarriage of justice. At the same time, the clemency power is not for that reason beyond the reach of critical moral scrutiny, since it remains a duty that attaches to the office of the chief executive, and he is thus morally accountable for its use (or misuse). In particular, if a chief executive refuses to exercise the clemency power at all, perhaps to insulate himself from potential political criticism for being soft on crime, he would be properly subject to moral condemnation for being merciless.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115680424","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2005-04-01DOI: 10.1525/NCLR.2005.9.1.201
Wesley M. Oliver
While many have observed the randomness of the Fourth Amendment9s application, there has been little attempt to explain why the Supreme Court has allowed its doctrines on search and seizure to become so laden with irrational exceptions. Exceptions to the exclusionary rule are created, according to the Court, when the societal costs of excluding evidence outweigh the deterrent benefits. A look at the exceptions, however, reveals that something other than an attempt to avoid the most inefficient exclusion of evidence explains the exceptions. This essay argues that existing exceptions attempt to obscure the Court9s willingness to find that deterring police officers is ever worth the cost of sacrificing the conviction of the guilty. A single exception could be developed that would better eliminate the most inefficient applications of the exclusionary rule: a good-faith exception for serious crimes. It is argued here that the Court9s concern about acknowledging its acceptance of the exclusionary rule, however, will keep it from adopting such an exception, which would expressly recognize that certain applications of the rule are worthwhile. This essay suggests that the legislature is in a better position than the Court to adopt this alternative exception. The legislature is able to blame the Court for the existence of the exclusionary rule while offering a program of exceptions to the rule that would avoid the most extreme consequences of exclusion that the Court9s rule would otherwise visit upon society. And the new exception would not be without popular appeal: murderers wouldn9t get off on technicalities.
{"title":"Toward a Better Categorical Balance of the Costs and Benefits of the Exclusionary Rule","authors":"Wesley M. Oliver","doi":"10.1525/NCLR.2005.9.1.201","DOIUrl":"https://doi.org/10.1525/NCLR.2005.9.1.201","url":null,"abstract":"While many have observed the randomness of the Fourth Amendment9s application, there has been little attempt to explain why the Supreme Court has allowed its doctrines on search and seizure to become so laden with irrational exceptions. Exceptions to the exclusionary rule are created, according to the Court, when the societal costs of excluding evidence outweigh the deterrent benefits. A look at the exceptions, however, reveals that something other than an attempt to avoid the most inefficient exclusion of evidence explains the exceptions. This essay argues that existing exceptions attempt to obscure the Court9s willingness to find that deterring police officers is ever worth the cost of sacrificing the conviction of the guilty. A single exception could be developed that would better eliminate the most inefficient applications of the exclusionary rule: a good-faith exception for serious crimes. It is argued here that the Court9s concern about acknowledging its acceptance of the exclusionary rule, however, will keep it from adopting such an exception, which would expressly recognize that certain applications of the rule are worthwhile. This essay suggests that the legislature is in a better position than the Court to adopt this alternative exception. The legislature is able to blame the Court for the existence of the exclusionary rule while offering a program of exceptions to the rule that would avoid the most extreme consequences of exclusion that the Court9s rule would otherwise visit upon society. And the new exception would not be without popular appeal: murderers wouldn9t get off on technicalities.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"88 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115820085","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2005-04-01DOI: 10.1525/NCLR.2005.9.1.139
Daniel Hinkle
In Card v. United States, the defense made a Batson objection, believing that the prosecutor was challenging a juror because he was African American. In response, the prosecutor protested his innocence, stating that the reason for the peremptory was that the juror looked like a Muslim. The trial judge, noting that he too had observed that Muslim jurors were often obstinately pro-defendant, overruled the defendant’s Batson objection. The court found that since the prosecutor had struck the juror based on his religion, not his race, there was no violation of the Equal Protection Clause. In other cases, lawyers have exercised peremptory challenges against jurors for being Muslim, Jehovah’s Witnesses, Pentecostal, Catholic, Jewish, and Hindu, among other religions, and for
{"title":"Peremptory Challenges Based on Religious Affiliation: Are They Constitutional?","authors":"Daniel Hinkle","doi":"10.1525/NCLR.2005.9.1.139","DOIUrl":"https://doi.org/10.1525/NCLR.2005.9.1.139","url":null,"abstract":"In Card v. United States, the defense made a Batson objection, believing that the prosecutor was challenging a juror because he was African American. In response, the prosecutor protested his innocence, stating that the reason for the peremptory was that the juror looked like a Muslim. The trial judge, noting that he too had observed that Muslim jurors were often obstinately pro-defendant, overruled the defendant’s Batson objection. The court found that since the prosecutor had struck the juror based on his religion, not his race, there was no violation of the Equal Protection Clause. In other cases, lawyers have exercised peremptory challenges against jurors for being Muslim, Jehovah’s Witnesses, Pentecostal, Catholic, Jewish, and Hindu, among other religions, and for","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128082810","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2005-03-28DOI: 10.1525/NCLR.2005.8.2.385
V. Bergelson
This article challenges the legal rule according to which the victim's conduct is irrelevant to the determination of the perpetrator's criminal liability. The author attacks this rule from both positive and normative perspectives, and argues that criminal law should incorporate an affirmative defense of comparative liability. This defense would fully or partially exculpate the defendant if the victim by his own acts has lost or reduced his right not to be harmed. Part I tests the descriptive accuracy of the proposition that the perpetrator's liability does not depend on the conduct of the victim. Criminological and victimological studies strongly suggest that criminal liability may be properly evaluated only in the context of the victim-perpetrator interaction. Moreover, criminal law itself has a number of doctrines, such as consent, self-defense and (to some degree) provocation, which include victims' actions in the determination of perpetrators' liability. Part II makes a normative claim that victims' actions should reduce or eliminate the perpetrator's liability in all appropriate cases and not merely in the context of a few distinct defenses. This claim draws on: (a) the just desert principle which requires that individuals be punished only for the amount of harm caused by them and not by the victim himself; (b) the efficiency principle, which requires that, in order to preserve the moral authority of criminal law, penal sanctions should not be overused and the law should develop in a dialogue with community perceptions of right and wrong; (c) the consistency principle, which mandates that punishment-justifying considerations be applied systematically; (d) the analysis of mitigating factors recognized at the penalty stage of a criminal trial; and (e) considerations of fairness underlying the comparative liability reform in torts. Part III proposes a basis for a theory of comparative liability in criminal law and suggests a method that makes it possible to distinguish between cases, in which the victim's conduct should provide the perpetrator with a complete or partial defense, and cases, in which the victim's conduct should be legally irrelevant. The author offers a unitary explanation to the defenses of consent, self-defense and provocation. That explanation lies in the principle of conditionality of rights. Pursuant to this principle, the perpetrator's liability should be reduced to the extent the victim, by his own acts, has changed the balance of rights between him and the perpetrator. The victim can do that either voluntarily, by waiving a right not to be harmed, or involuntarily, by forfeiting this right as a result of his unjustified attack on some legally recognized rights of the perpetrator. The article concludes with comparative analysis of factors that may affect the determination of the scope of the perpetrator's liability. These factors include the magnitude of the affected rights of the perpetrator and the victim, the causative
{"title":"Victims and Perpetrators: An Argument for Comparative Liability in Criminal Law","authors":"V. Bergelson","doi":"10.1525/NCLR.2005.8.2.385","DOIUrl":"https://doi.org/10.1525/NCLR.2005.8.2.385","url":null,"abstract":"This article challenges the legal rule according to which the victim's conduct is irrelevant to the determination of the perpetrator's criminal liability. The author attacks this rule from both positive and normative perspectives, and argues that criminal law should incorporate an affirmative defense of comparative liability. This defense would fully or partially exculpate the defendant if the victim by his own acts has lost or reduced his right not to be harmed. Part I tests the descriptive accuracy of the proposition that the perpetrator's liability does not depend on the conduct of the victim. Criminological and victimological studies strongly suggest that criminal liability may be properly evaluated only in the context of the victim-perpetrator interaction. Moreover, criminal law itself has a number of doctrines, such as consent, self-defense and (to some degree) provocation, which include victims' actions in the determination of perpetrators' liability. Part II makes a normative claim that victims' actions should reduce or eliminate the perpetrator's liability in all appropriate cases and not merely in the context of a few distinct defenses. This claim draws on: (a) the just desert principle which requires that individuals be punished only for the amount of harm caused by them and not by the victim himself; (b) the efficiency principle, which requires that, in order to preserve the moral authority of criminal law, penal sanctions should not be overused and the law should develop in a dialogue with community perceptions of right and wrong; (c) the consistency principle, which mandates that punishment-justifying considerations be applied systematically; (d) the analysis of mitigating factors recognized at the penalty stage of a criminal trial; and (e) considerations of fairness underlying the comparative liability reform in torts. Part III proposes a basis for a theory of comparative liability in criminal law and suggests a method that makes it possible to distinguish between cases, in which the victim's conduct should provide the perpetrator with a complete or partial defense, and cases, in which the victim's conduct should be legally irrelevant. The author offers a unitary explanation to the defenses of consent, self-defense and provocation. That explanation lies in the principle of conditionality of rights. Pursuant to this principle, the perpetrator's liability should be reduced to the extent the victim, by his own acts, has changed the balance of rights between him and the perpetrator. The victim can do that either voluntarily, by waiving a right not to be harmed, or involuntarily, by forfeiting this right as a result of his unjustified attack on some legally recognized rights of the perpetrator. The article concludes with comparative analysis of factors that may affect the determination of the scope of the perpetrator's liability. These factors include the magnitude of the affected rights of the perpetrator and the victim, the causative ","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134624236","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2005-03-14DOI: 10.1525/NCLR.2005.8.2.599
P. Westen
Free will and determinism are said to constitute the most written-about problem in the history of philosophy, one that continues every year to produce major publications by major university presses, each claiming insight into moral and criminal responsibility. Commentators differ sharply in their approaches to the problem, ranging over those who embrace free will and reject determinism, those who embrace determinism and reject free will, those who reject both, and those who embrace both, including those who do so by virtue of redefining what counts as free will. Yet despite their disagreements, commentators seem to agree about one thing: they agree that the relationship between free will and determinism is a genuine problem in metaphysics and morals, that is, a problem that evidence, analysis, imagination, intelligence are capable of resolving, at least in theory. I argue, in contrast, that the relationship between free will and determinism is a false problem, that is, a problem that we are incapable of resolving, even in theory. It is a problem that we have constructed for ourselves - or, perhaps, more accurately, a problem that has been construed for us - because it is the product of contradictory modes of thought that we are obliged to bring to bear in reflecting upon it. Free will and determinism are hypotheses about the world that are inconsistent with presuppositions by which we must reason about them. Thus, determinism is a causal hypothesis regarding the nature of physical bodies and events, including ourselves, that is inconsistent with the presuppositions of reason and knowledge by which we assert it to be true. Free will, in turn, is an effort to explain reason and intentional conduct as being physically uncaused that is inconsistent with the nature of explanation itself. The proper response to a false problem is not to search for further evidence or to strive for better analysis. The proper response to a false problem, including that of free will and determinism, is to stop thinking about it.
{"title":"Getting the Fly out of the Bottle: The False Problem of Free Will and Determinism","authors":"P. Westen","doi":"10.1525/NCLR.2005.8.2.599","DOIUrl":"https://doi.org/10.1525/NCLR.2005.8.2.599","url":null,"abstract":"Free will and determinism are said to constitute the most written-about problem in the history of philosophy, one that continues every year to produce major publications by major university presses, each claiming insight into moral and criminal responsibility. Commentators differ sharply in their approaches to the problem, ranging over those who embrace free will and reject determinism, those who embrace determinism and reject free will, those who reject both, and those who embrace both, including those who do so by virtue of redefining what counts as free will. Yet despite their disagreements, commentators seem to agree about one thing: they agree that the relationship between free will and determinism is a genuine problem in metaphysics and morals, that is, a problem that evidence, analysis, imagination, intelligence are capable of resolving, at least in theory. I argue, in contrast, that the relationship between free will and determinism is a false problem, that is, a problem that we are incapable of resolving, even in theory. It is a problem that we have constructed for ourselves - or, perhaps, more accurately, a problem that has been construed for us - because it is the product of contradictory modes of thought that we are obliged to bring to bear in reflecting upon it. Free will and determinism are hypotheses about the world that are inconsistent with presuppositions by which we must reason about them. Thus, determinism is a causal hypothesis regarding the nature of physical bodies and events, including ourselves, that is inconsistent with the presuppositions of reason and knowledge by which we assert it to be true. Free will, in turn, is an effort to explain reason and intentional conduct as being physically uncaused that is inconsistent with the nature of explanation itself. The proper response to a false problem is not to search for further evidence or to strive for better analysis. The proper response to a false problem, including that of free will and determinism, is to stop thinking about it.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123283034","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2005-02-01DOI: 10.1525/NCLR.2005.8.2.653
Elaine M. Chiu
This article builds on recent discussions amongst criminal law scholars on the role that motive should play in the criminal law. It advocates for greater consideration of a defendant's motive in all critical decisions of the criminal justice process and offers concrete guidelines. Unlike many other articles that focus on euthanasia or hate crime, this one takes on the simple street sale of drugs and an unusual defense known as the agency defense to demonstrate how the criminal law can better accommodate motive. Created to avoid the harsh jail terms imposed on convicted drug dealers, the agency defense pretends that steerers who steer customers to drug dealers are the purchasing agents of the customers. As agents, they avoid criminal liability for the sale of drugs. Steerers, though, are not agents; instead, they are commonly drug addicts themselves who support their addictions by working as steerers. Instead of using a legal fiction like agency, this article proposes that the criminal law honestly and directly accommodate the true motive of steerers to satisfy their drug addictions. Addiction is admittedly problematic as a motive because of its low provability and low moral potency. One acceptable accommodation may be to mandate that judges simply consider whether drug offenders suffer from addictions in determining the appropriate sentence. Aside from this consideration, not every defendant will warrant an actual reduction in sentence. That would be up to the discretion of the judge.
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Pub Date : 2004-06-14DOI: 10.1525/NCLR.2004.8.1.221
K. F. Brickey
Enron's collapse was the initial episode in a series of corporate fraud scandals that caused billions of dollars of losses, cost tens of thousands of jobs, and eroded confidence in the integrity of the nation's financial markets. Apart from these very tangible harms, the fraud scandals also contributed to cynical shifts in public attitudes about corporations and their executives. Thus, it was not surprising that Congress called for reforms to address systemic corporate governance failures, while at the same time regulators and prosecutors revised enforcement priorities and developed new strategies to combat large-scale fraud. In addition to increasing transparency and accountability in corporate governance matters, post-Enron reforms give regulators and prosecutors potent new enforcement tools, enhance interagency coordination and cooperation, and provide the financial support essential for the SEC to effectively perform its core regulatory functions. Despite significant post-Enron legislative and regulatory reforms and aggressive civil and criminal enforcement, some observers are skeptical about the pace and focus of the fraud investigations. Of particular concern are what some of them view as skewed prosecutorial priorities. Why, for example, was Martha Stewart on trial when poster CEOs Ebbers, Skilling, and Lay had yet to be charged? This article provides a context for examining these and related concerns. Beginning with Enron, it sets the stage by reviewing seven major financial fraud scandals that have surfaced in the past few years. It then considers important structural reforms that address regulatory and enforcement gaps that allowed Enron and its progeny to slip through the cracks. After evaluating post-Enron reforms, the article examines how - through timely and innovative enforcement strategies - the Justice Department and the SEC have responded to the corporate fraud crisis. It then critiques the criminal enforcement record and challenges several assumptions that underlie criticisms of the current fraud investigations. By examining the government's prosecutorial strategies in the context of Enron, WorldCom, and HealthSouth, the article demonstrates why common criticisms of the timing and direction of recent corporate fraud prosecutions are fundamentally misinformed.
{"title":"Enron's Legacy","authors":"K. F. Brickey","doi":"10.1525/NCLR.2004.8.1.221","DOIUrl":"https://doi.org/10.1525/NCLR.2004.8.1.221","url":null,"abstract":"Enron's collapse was the initial episode in a series of corporate fraud scandals that caused billions of dollars of losses, cost tens of thousands of jobs, and eroded confidence in the integrity of the nation's financial markets. Apart from these very tangible harms, the fraud scandals also contributed to cynical shifts in public attitudes about corporations and their executives. Thus, it was not surprising that Congress called for reforms to address systemic corporate governance failures, while at the same time regulators and prosecutors revised enforcement priorities and developed new strategies to combat large-scale fraud. In addition to increasing transparency and accountability in corporate governance matters, post-Enron reforms give regulators and prosecutors potent new enforcement tools, enhance interagency coordination and cooperation, and provide the financial support essential for the SEC to effectively perform its core regulatory functions. Despite significant post-Enron legislative and regulatory reforms and aggressive civil and criminal enforcement, some observers are skeptical about the pace and focus of the fraud investigations. Of particular concern are what some of them view as skewed prosecutorial priorities. Why, for example, was Martha Stewart on trial when poster CEOs Ebbers, Skilling, and Lay had yet to be charged? This article provides a context for examining these and related concerns. Beginning with Enron, it sets the stage by reviewing seven major financial fraud scandals that have surfaced in the past few years. It then considers important structural reforms that address regulatory and enforcement gaps that allowed Enron and its progeny to slip through the cracks. After evaluating post-Enron reforms, the article examines how - through timely and innovative enforcement strategies - the Justice Department and the SEC have responded to the corporate fraud crisis. It then critiques the criminal enforcement record and challenges several assumptions that underlie criticisms of the current fraud investigations. By examining the government's prosecutorial strategies in the context of Enron, WorldCom, and HealthSouth, the article demonstrates why common criticisms of the timing and direction of recent corporate fraud prosecutions are fundamentally misinformed.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128347444","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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