Pub Date : 1900-01-01DOI: 10.1525/NCLR.2000.3.2.755
G. Binder
Many criminal law scholars have criticized the Model Penal Code’s restrictive conception of culpability as awareness of risk, and have sought to incorporate motives and desires into culpoability analysis. In his excellent book Judging Evil, Samuel Pillsbury has applied this richer conception of culpability to homicide law. The result is a comprehensive theory of homicide liability, unified by an effort to predicate liability on deficient moral reasoning rather than merely awareness of risk. This review essay explicates and commends Pillsbury’s theory but also criticizes one crucial deficiency. Pillsbury shrinks from one of the most obvious but potentially most controversial implications of his premises for the law of homicide: the legitimacy of felony murder liability. The essay outlines a defense of felony murder on the basis of Pillsbury’s premises, and concludes that such an argument would have enhanced the coherence, comprehensiveness and significance of his theory.
{"title":"Meaning and Motive in the Law of Homicide","authors":"G. Binder","doi":"10.1525/NCLR.2000.3.2.755","DOIUrl":"https://doi.org/10.1525/NCLR.2000.3.2.755","url":null,"abstract":"Many criminal law scholars have criticized the Model Penal Code’s restrictive conception of culpability as awareness of risk, and have sought to incorporate motives and desires into culpoability analysis. In his excellent book Judging Evil, Samuel Pillsbury has applied this richer conception of culpability to homicide law. The result is a comprehensive theory of homicide liability, unified by an effort to predicate liability on deficient moral reasoning rather than merely awareness of risk. This review essay explicates and commends Pillsbury’s theory but also criticizes one crucial deficiency. Pillsbury shrinks from one of the most obvious but potentially most controversial implications of his premises for the law of homicide: the legitimacy of felony murder liability. The essay outlines a defense of felony murder on the basis of Pillsbury’s premises, and concludes that such an argument would have enhanced the coherence, comprehensiveness and significance of his theory.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130065429","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 : 1900-01-01DOI: 10.1525/NCLR.2002.5.2.451
Melissa S. Williams
The place of criminal justice in democracy has been little studied in recent democratic theory. This is surprising insofar as much of the theory of democracy concerns how shared norms become binding law, and where are shared norms more forcefully expressed or enforced than in the domain of criminal law? Perhaps the reason for democratic theorists’ recent neglect of criminal justice and punishment is the fact that there is so little agreement in most democratic societies as to the purpose of punishment. Is it fundamentally retributive in purpose, and therefore appropriately measured out in proportion to the seriousness of the offense? Is its purpose deterrent, so that no greater (and no lesser) punishment should be inflicted than is necessary to dissuade individuals from violating the law? Or is its purpose rehabilitative, to “discipline” in its root meaning as synonymous with “teach”? Or, finally, we might conceive of criminal justice as restorative, with the aim of repairing victims’ injuries and reintegrating offenders into responsible membership in the community. There is clearly no settled consensus on these questions in contemporary democracies.
{"title":"Criminal Justice, Democratic Fairness, and Cultural Pluralism: The Case of Aboriginal Peoples in Canada","authors":"Melissa S. Williams","doi":"10.1525/NCLR.2002.5.2.451","DOIUrl":"https://doi.org/10.1525/NCLR.2002.5.2.451","url":null,"abstract":"The place of criminal justice in democracy has been little studied in recent democratic theory. This is surprising insofar as much of the theory of democracy concerns how shared norms become binding law, and where are shared norms more forcefully expressed or enforced than in the domain of criminal law? Perhaps the reason for democratic theorists’ recent neglect of criminal justice and punishment is the fact that there is so little agreement in most democratic societies as to the purpose of punishment. Is it fundamentally retributive in purpose, and therefore appropriately measured out in proportion to the seriousness of the offense? Is its purpose deterrent, so that no greater (and no lesser) punishment should be inflicted than is necessary to dissuade individuals from violating the law? Or is its purpose rehabilitative, to “discipline” in its root meaning as synonymous with “teach”? Or, finally, we might conceive of criminal justice as restorative, with the aim of repairing victims’ injuries and reintegrating offenders into responsible membership in the community. There is clearly no settled consensus on these questions in contemporary democracies.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130066039","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 : 1900-01-01DOI: 10.1525/NCLR.2000.3.2.701
Richard G. Singer
In the past several years, Andrew Ashworth and Andrew von Hirsch and Douglas Husak have urged, as a more refined notion of desert liability in cases otherwise characterized as involving mistake (or ignorance) of law, a “duty of citizen inquiry.” von Hirsch and Husak’s proposal is actually part of a larger endorsement of ignorantia lexis as an excuse. They would not hold liable persons who (1) did not intend to injure a person, and (2) were reasonably unaware of, or mistaken as to, the extent of the law making their conduct illegal. Although their primary focus is on the first prong
{"title":"The Proposed Duty to Inquire as Affected by Recent Criminal Law Decisions in the United States Supreme Court","authors":"Richard G. Singer","doi":"10.1525/NCLR.2000.3.2.701","DOIUrl":"https://doi.org/10.1525/NCLR.2000.3.2.701","url":null,"abstract":"In the past several years, Andrew Ashworth and Andrew von Hirsch and Douglas Husak have urged, as a more refined notion of desert liability in cases otherwise characterized as involving mistake (or ignorance) of law, a “duty of citizen inquiry.” von Hirsch and Husak’s proposal is actually part of a larger endorsement of ignorantia lexis as an excuse. They would not hold liable persons who (1) did not intend to injure a person, and (2) were reasonably unaware of, or mistaken as to, the extent of the law making their conduct illegal. Although their primary focus is on the first prong","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125746592","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 : 1900-01-01DOI: 10.1525/NCLR.1998.1.2.275
G. Fletcher
{"title":"The Fall and Rise of Criminal Theory","authors":"G. Fletcher","doi":"10.1525/NCLR.1998.1.2.275","DOIUrl":"https://doi.org/10.1525/NCLR.1998.1.2.275","url":null,"abstract":"","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129676998","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 : 1900-01-01DOI: 10.1525/NCLR.2000.3.2.785
Richard S. Frase
{"title":"The Search for the Whole Truth About American and European Criminal Justice","authors":"Richard S. Frase","doi":"10.1525/NCLR.2000.3.2.785","DOIUrl":"https://doi.org/10.1525/NCLR.2000.3.2.785","url":null,"abstract":"","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130714299","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 : 1900-01-01DOI: 10.1525/NCLR.2001.4.2.755
Kit Kinports
In rape cases involving physical violence or express threats of physical harm, proof of the actus reus obviously does establish mens rea with respect to force as well as nonconsent. A defendant who beat or threatened to kill his victim could hardly raise a plausible argument that he did not know he was using force. But, in other circumstances, the defendant's mens rea vis-a-vis force may be less clear, and it may therefore make a difference whether a rape conviction requires proof that the defendant purposely intended to use force, or whether it is enough that he knew he was exercising force, that the woman thought he was using force, or that a reasonable person viewing the situation would have thought so. Given the traditional criminal law assumption that a mens rea requirement attaches to every material element of a crime, it seems odd that so little attention has been paid to the question of what mens rea, if any, attaches to the force element.Admittedly, a handful of courts have paid lip service to this issue, and their opinions are described below in Part II. But the overwhelming majority of court decisions and commentaries discussing mens rea and rape have focused exclusively on the defendant's beliefs and mistakes about the victim's consent. As explained in Part III, this almost universal disregard of mens rea issues as applied to the element of force confirms the redundancy of the force requirement, once absence of consent and its accompanying mens rea have been established.
{"title":"Rape and Force: The Forgotten Mens Rea","authors":"Kit Kinports","doi":"10.1525/NCLR.2001.4.2.755","DOIUrl":"https://doi.org/10.1525/NCLR.2001.4.2.755","url":null,"abstract":"In rape cases involving physical violence or express threats of physical harm, proof of the actus reus obviously does establish mens rea with respect to force as well as nonconsent. A defendant who beat or threatened to kill his victim could hardly raise a plausible argument that he did not know he was using force. But, in other circumstances, the defendant's mens rea vis-a-vis force may be less clear, and it may therefore make a difference whether a rape conviction requires proof that the defendant purposely intended to use force, or whether it is enough that he knew he was exercising force, that the woman thought he was using force, or that a reasonable person viewing the situation would have thought so. Given the traditional criminal law assumption that a mens rea requirement attaches to every material element of a crime, it seems odd that so little attention has been paid to the question of what mens rea, if any, attaches to the force element.Admittedly, a handful of courts have paid lip service to this issue, and their opinions are described below in Part II. But the overwhelming majority of court decisions and commentaries discussing mens rea and rape have focused exclusively on the defendant's beliefs and mistakes about the victim's consent. As explained in Part III, this almost universal disregard of mens rea issues as applied to the element of force confirms the redundancy of the force requirement, once absence of consent and its accompanying mens rea have been established.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131739512","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 : 1900-01-01DOI: 10.1525/NCLR.2003.6.2.1043
A. Rappaport
Introduction 1044 I. The Modern Sentencing Reform Movement 1049 A. The Goals of Sentencing Reform 1049 B. The Sentencing Reform Act 1054 II. Sentencing Reform and the Purposes of Punishment 1057 A. Moral Principle and the Nature of Sentencing Purposes 1060 1. Utilitarianism 1061 2. Retribution 1063 B. The Inseparability of Policy Goals and Punishment Purposes 1065 C. Conflicts among Punishment Purposes 1071 III. The Institution of Principle 1078 A. The Rhetoric of the Empirical Approach ........1079 B. The Empirical Approach Reconsidered 1085 IV. The Need for a Public Statement of Purposes ......1092 A. Sentencing Disparity Revisited 1095 B. Sentencing Severity Revisited 1099 1. Disciplining the Commission 1099 2. Principles and Politics 1102 V. Potential Criticism 1108 A. Incompletely Theorized Agreements 1108 B. The “Common Law” Approach 1113
{"title":"Unprincipled Punishment: The U.S. Sentencing Commission's Troubling Silence About the Purposes of Punishment","authors":"A. Rappaport","doi":"10.1525/NCLR.2003.6.2.1043","DOIUrl":"https://doi.org/10.1525/NCLR.2003.6.2.1043","url":null,"abstract":"Introduction 1044 I. The Modern Sentencing Reform Movement 1049 A. The Goals of Sentencing Reform 1049 B. The Sentencing Reform Act 1054 II. Sentencing Reform and the Purposes of Punishment 1057 A. Moral Principle and the Nature of Sentencing Purposes 1060 1. Utilitarianism 1061 2. Retribution 1063 B. The Inseparability of Policy Goals and Punishment Purposes 1065 C. Conflicts among Punishment Purposes 1071 III. The Institution of Principle 1078 A. The Rhetoric of the Empirical Approach ........1079 B. The Empirical Approach Reconsidered 1085 IV. The Need for a Public Statement of Purposes ......1092 A. Sentencing Disparity Revisited 1095 B. Sentencing Severity Revisited 1099 1. Disciplining the Commission 1099 2. Principles and Politics 1102 V. Potential Criticism 1108 A. Incompletely Theorized Agreements 1108 B. The “Common Law” Approach 1113","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"72 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113962406","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 : 1900-01-01DOI: 10.1525/NCLR.2005.8.2.503
Heidi M. Hurd
There is, perhaps, little that instills greater professional pride in academics than to watch former students go on to thriving careers within their disciplines. The success of one’s students within one’s own professional world seems proof that the pursuit of knowledge is a relay race in which the scholars of each generation pass the batons of the discipline to the next, with the promise that the strides of each will preserve the advances made by the strides of those who ran before. And so it is that I indulge a great deal of selfish pride in commenting upon the recent work of Professor Vera Bergelson, who, as a student of mine at the University of Pennsylvania Law School all too long ago, proved herself very adept at picking up and running with the batons she was handed by her admiring faculty members. The particularly slippery baton that Professor Bergelson so adeptly runs with in her provocative and insightful article, “Victims and Perpetrators: An Argument for Comparative Liability in Criminal Law,” is the chestnut puzzle concerning the criminal law’s refusal to recognize an explicit defense of “contributory responsibility,” as I shall call it, on the part of the victim. Consent is no defense to a crime, it is often said, nor is assumption of risk or contributory negligence. But are these mantras true? asks Professor Bergelson. And if they are true, why would this be? Can a refusal to take account of the victim’s own contributions to the harm for which the
{"title":"Blaming the Victim: A Response to the Proposal that Criminal Law Recognize a General Defense of Contributory Responsibility","authors":"Heidi M. Hurd","doi":"10.1525/NCLR.2005.8.2.503","DOIUrl":"https://doi.org/10.1525/NCLR.2005.8.2.503","url":null,"abstract":"There is, perhaps, little that instills greater professional pride in academics than to watch former students go on to thriving careers within their disciplines. The success of one’s students within one’s own professional world seems proof that the pursuit of knowledge is a relay race in which the scholars of each generation pass the batons of the discipline to the next, with the promise that the strides of each will preserve the advances made by the strides of those who ran before. And so it is that I indulge a great deal of selfish pride in commenting upon the recent work of Professor Vera Bergelson, who, as a student of mine at the University of Pennsylvania Law School all too long ago, proved herself very adept at picking up and running with the batons she was handed by her admiring faculty members. The particularly slippery baton that Professor Bergelson so adeptly runs with in her provocative and insightful article, “Victims and Perpetrators: An Argument for Comparative Liability in Criminal Law,” is the chestnut puzzle concerning the criminal law’s refusal to recognize an explicit defense of “contributory responsibility,” as I shall call it, on the part of the victim. Consent is no defense to a crime, it is often said, nor is assumption of risk or contributory negligence. But are these mantras true? asks Professor Bergelson. And if they are true, why would this be? Can a refusal to take account of the victim’s own contributions to the harm for which the","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122706239","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 : 1900-01-01DOI: 10.1525/NCLR.2004.7.2.479
S. Dolovich
There are three phases to the argument I develop in “Legitimate Punishment in Liberal Democracy.” In the first, methodological phase, I argue for a Rawlsian approach to the problem of punishment, and construct a model of the original position that, I claim, represents the appropriate perspective from which to derive principles on the basis of which a liberal democracy might legitimately punish convicted offenders. In the second phase, I put this model to work to determine the content of such principles. And in the third phase, I draw on the principles just derived to evaluate the legitimacy of current policies and practices. Taken together, the comments offered by Professors Chambers and Garvey raise questions bearing on each phase of my argument. I cannot in this brief essay adequately respond to all their thoughtful observations, but I will attempt to address what I take to be their main concerns.
{"title":"Idealism, Disproportionality, and Democracy: A Reply to Chambers and Garvey","authors":"S. Dolovich","doi":"10.1525/NCLR.2004.7.2.479","DOIUrl":"https://doi.org/10.1525/NCLR.2004.7.2.479","url":null,"abstract":"There are three phases to the argument I develop in “Legitimate Punishment in Liberal Democracy.” In the first, methodological phase, I argue for a Rawlsian approach to the problem of punishment, and construct a model of the original position that, I claim, represents the appropriate perspective from which to derive principles on the basis of which a liberal democracy might legitimately punish convicted offenders. In the second phase, I put this model to work to determine the content of such principles. And in the third phase, I draw on the principles just derived to evaluate the legitimacy of current policies and practices. Taken together, the comments offered by Professors Chambers and Garvey raise questions bearing on each phase of my argument. I cannot in this brief essay adequately respond to all their thoughtful observations, but I will attempt to address what I take to be their main concerns.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"2020 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122727589","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 : 1900-01-01DOI: 10.1525/NCLR.2005.8.2.523
Douglas Husak
Vera Bergelson has provided an ambitious defense of the thesis that victim fault is and ought to be relevant to the criminal liability of perpetrators. No theorist should respond that this thesis is fundamentally misguided; anyone who contends that victim fault is and ought to be irrelevant in all cases simply does not know what he is talking about. As Bergelson explains, pleas like selfdefense and provocation are clear instances in which the criminal liability of the perpetrator is altered by the faulty conduct of the victim. From here, the most powerful of Bergelson’s several arguments involves consistency of principle. If the fault of the defendant is so obviously significant on these occasions, why should it not be important elsewhere? Indeed, Begelson endorses a fairly radical change in our understanding of the nature of criminal liability by making victim fault relevant throughout broad areas of the criminal law.
{"title":"Comparative Fault in Criminal Law: Conceptual and Normative Perplexities","authors":"Douglas Husak","doi":"10.1525/NCLR.2005.8.2.523","DOIUrl":"https://doi.org/10.1525/NCLR.2005.8.2.523","url":null,"abstract":"Vera Bergelson has provided an ambitious defense of the thesis that victim fault is and ought to be relevant to the criminal liability of perpetrators. No theorist should respond that this thesis is fundamentally misguided; anyone who contends that victim fault is and ought to be irrelevant in all cases simply does not know what he is talking about. As Bergelson explains, pleas like selfdefense and provocation are clear instances in which the criminal liability of the perpetrator is altered by the faulty conduct of the victim. From here, the most powerful of Bergelson’s several arguments involves consistency of principle. If the fault of the defendant is so obviously significant on these occasions, why should it not be important elsewhere? Indeed, Begelson endorses a fairly radical change in our understanding of the nature of criminal liability by making victim fault relevant throughout broad areas of the criminal law.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122774985","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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