Pub Date : 2004-04-01DOI: 10.1525/NCLR.2004.8.1.35
Bernd Schüünemann
1. Within Europe, the traditional concept of crime being flawed, individual conduct dominated. The concept of deterrence, achieved through the threat of punishment, and the related concept of personal culpability, made the representatives of a corporate entity in which a crime had been committed criminally liable insofar as they either participated in the causal act through their own doing or did not prevent it even though their position within the entity meant that they had a duty to act. Hence, in many cases in which an act of the representative could not be proved, the crime of omission became the most important instrument of criminal justice. In particular the principals
{"title":"The Sarbanes-Oxley Act of 2002: A German Perspective","authors":"Bernd Schüünemann","doi":"10.1525/NCLR.2004.8.1.35","DOIUrl":"https://doi.org/10.1525/NCLR.2004.8.1.35","url":null,"abstract":"1. Within Europe, the traditional concept of crime being flawed, individual conduct dominated. The concept of deterrence, achieved through the threat of punishment, and the related concept of personal culpability, made the representatives of a corporate entity in which a crime had been committed criminally liable insofar as they either participated in the causal act through their own doing or did not prevent it even though their position within the entity meant that they had a duty to act. Hence, in many cases in which an act of the representative could not be proved, the crime of omission became the most important instrument of criminal justice. In particular the principals","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115434086","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 : 2004-04-01DOI: 10.1525/NCLR.2004.8.1.277
Pamela H. Bucy
{"title":"““Carrots and Sticks””: Post-Enron Regulatory Initiatives","authors":"Pamela H. Bucy","doi":"10.1525/NCLR.2004.8.1.277","DOIUrl":"https://doi.org/10.1525/NCLR.2004.8.1.277","url":null,"abstract":"","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133955243","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 : 2004-04-01DOI: 10.1525/NCLR.2004.8.1.89
Sara Sun Beale, Adam G. Safwat
Although corporate criminal liability has been recognized in the United States for nearly a century, contemporary academic commentators have questioned its legitimacy and argued that it is inferior to its alternatives: civil liability for the corporation and/or criminal liability for individual corporate agents. Other academic critics have attacked the present definitions of corporate criminal liability. In other words, although corporate criminal liability has also had its academic champions, it has been under attack in the United States. The situation in Europe poses a sharp contrast.
{"title":"What Developments in Western Europe Tell Us about American Critiques of Corporate Criminal Liability","authors":"Sara Sun Beale, Adam G. Safwat","doi":"10.1525/NCLR.2004.8.1.89","DOIUrl":"https://doi.org/10.1525/NCLR.2004.8.1.89","url":null,"abstract":"Although corporate criminal liability has been recognized in the United States for nearly a century, contemporary academic commentators have questioned its legitimacy and argued that it is inferior to its alternatives: civil liability for the corporation and/or criminal liability for individual corporate agents. Other academic critics have attacked the present definitions of corporate criminal liability. In other words, although corporate criminal liability has also had its academic champions, it has been under attack in the United States. The situation in Europe poses a sharp contrast.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132330745","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 : 2004-04-01DOI: 10.1525/NCLR.2004.8.1.165
Geraldine Szott Moohr
Justice Robert Jackson famously characterized the federal prosecutor as having “more control over life, liberty, and reputation than any other person in America.” Sixty years later, Judge Gerard Lynch raised the prosecutor’s standing when he remarked that federal prosecutors perform “the role of god.” Current white collar criminal prosecutions suggest that characterizing federal prosecutors as gods is the better description. Riding a tide of public outrage following the discovery of massive fraud at Enron and other firms, prosecutors have attained something akin to heroic status. The failure of the civil
{"title":"Prosecutorial Power in an Adversarial System: Lessons from Current White Collar Cases and the Inquisitorial Model","authors":"Geraldine Szott Moohr","doi":"10.1525/NCLR.2004.8.1.165","DOIUrl":"https://doi.org/10.1525/NCLR.2004.8.1.165","url":null,"abstract":"Justice Robert Jackson famously characterized the federal prosecutor as having “more control over life, liberty, and reputation than any other person in America.” Sixty years later, Judge Gerard Lynch raised the prosecutor’s standing when he remarked that federal prosecutors perform “the role of god.” Current white collar criminal prosecutions suggest that characterizing federal prosecutors as gods is the better description. Riding a tide of public outrage following the discovery of massive fraud at Enron and other firms, prosecutors have attained something akin to heroic status. The failure of the civil","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131605634","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 : 2004-04-01DOI: 10.1525/NCLR.2004.8.1.51
Roland Hefendehl
In February 2002, during a Congressional hearing, the Chairman of the Securities and Exchange Commission was convinced that there would be no need for new laws despite the Enron collapse. However, after the irregularities at WorldCom and other big companies came to light, these moderate words rang hollow. A tidal wave entered Washington during summer 2002: the Sarbanes-Oxley Act, which prescribes new duties for accountants and drastic regulations regarding corporate governance, and has been called the biggest reform of corporate governance since the federal security laws were enacted seventy years ago.
{"title":"Enron, WorldCom, and the Consequences: Business Criminal Law Between Doctrinal Requirements and the Hopes of Crime Policy","authors":"Roland Hefendehl","doi":"10.1525/NCLR.2004.8.1.51","DOIUrl":"https://doi.org/10.1525/NCLR.2004.8.1.51","url":null,"abstract":"In February 2002, during a Congressional hearing, the Chairman of the Securities and Exchange Commission was convinced that there would be no need for new laws despite the Enron collapse. However, after the irregularities at WorldCom and other big companies came to light, these moderate words rang hollow. A tidal wave entered Washington during summer 2002: the Sarbanes-Oxley Act, which prescribes new duties for accountants and drastic regulations regarding corporate governance, and has been called the biggest reform of corporate governance since the federal security laws were enacted seventy years ago.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124753966","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}
Despite long-running disagreements, particularly among social scientists, about the meaning of white collar crime, the term now occurs in a wide range of contexts. The majority of American law schools have a course in the subject. Journalists and politicians refer to it regularly. Law enforcement agencies, prosecutors, and defense attorneys all hold themselves out as specialists in the area. And the term is increasingly being used outside the United States, both in English and in translation. Yet, despite its currency in the academic, professional, and popular culture, it has generally been assumed that the term has no particular significance in substantive criminal law. This article dispels that assumption by examining five contexts in which the term white collar crime has been used in substantive criminal law: (1) to identify aggravating circumstances that are relevant to sentencing, (2) to define a class of victims who are entitled to various rights, (3) to define the jurisdiction of certain state prosecuting officials, (4) to create funding mechanisms for law enforcement programs and research facilities, and (5) symbolically, in the title or section heading of substantive criminal law provisions, to signal a shift in legislative attitudes (as has been done, most prominently, in the recently-enacted Sarbanes-Oxley Act). The article also considers the extent to which white collar crime is appropriately used in discussions of criminal law theory. It contends that, despite the many problems it poses, white collar crime remains an indispensable analytical label. But the family-resemblance, or paradigmatic, quality of the term needs to be acknowledged, as does the fact that its meaning will inevitably vary within and across disciplines.
{"title":"The Concept of White Collar Crime in Law and Legal Theory","authors":"S. Green","doi":"10.1525/NCLR.2004.8.1.1","DOIUrl":"https://doi.org/10.1525/NCLR.2004.8.1.1","url":null,"abstract":"Despite long-running disagreements, particularly among social scientists, about the meaning of white collar crime, the term now occurs in a wide range of contexts. The majority of American law schools have a course in the subject. Journalists and politicians refer to it regularly. Law enforcement agencies, prosecutors, and defense attorneys all hold themselves out as specialists in the area. And the term is increasingly being used outside the United States, both in English and in translation. Yet, despite its currency in the academic, professional, and popular culture, it has generally been assumed that the term has no particular significance in substantive criminal law. This article dispels that assumption by examining five contexts in which the term white collar crime has been used in substantive criminal law: (1) to identify aggravating circumstances that are relevant to sentencing, (2) to define a class of victims who are entitled to various rights, (3) to define the jurisdiction of certain state prosecuting officials, (4) to create funding mechanisms for law enforcement programs and research facilities, and (5) symbolically, in the title or section heading of substantive criminal law provisions, to signal a shift in legislative attitudes (as has been done, most prominently, in the recently-enacted Sarbanes-Oxley Act). The article also considers the extent to which white collar crime is appropriately used in discussions of criminal law theory. It contends that, despite the many problems it poses, white collar crime remains an indispensable analytical label. But the family-resemblance, or paradigmatic, quality of the term needs to be acknowledged, as does the fact that its meaning will inevitably vary within and across disciplines.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"112 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124892541","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 : 2004-02-19DOI: 10.1525/NCLR.2004.7.2.307
S. Dolovich
What are the terms of legitimate punishment in a liberal democracy? Traditional approaches to this question tend to focus on the purposes punishment is supposed to serve (deterrence, retribution, rehabilitation, moral education, etc.) while giving little if any consideration to the coercive deployment of state power punishment represents. In this article, I take the coercive nature of state punishment as my starting point. My aim is to determine what normative constraints, if any, exist on the state's power to punish criminal offenders in a liberal democracy - a determination, I argue, that is especially urgent given the current size of America's prison population. To answer this question, I draw on the work of John Rawls. I do so because I share Rawls' view that, if the exercise of state power in a liberal democracy is to be legitimate, it must be justifiable in terms that all members of society subject to that power would accept as just and fair. Rawls' deliberative model was originally intended for questions of ideal theory, on which all members of society are assumed to act justly towards others. The first task of the paper is thus to render Rawls' model applicable to problems of partial compliance, of which punishment is one. Ultimately I argue that, assuming conditions of partial compliance, deliberating parties would approach the task of selecting principles of punishment by considering the implications of various alternative principles as if they could end up as either crime victim or punished offender once they enter society as citizens. Having established this perspective, and its consistency with the basic liberal ideals of moral equality and individual sovereignty, I then go on to determine the principles of punishment that would be selected by parties deliberating under these conditions and would thus constitute the terms of legitimate punishment in liberal democracy. I identify five such principles, at the heart of which is what I call, following Braithwaite and Pettit, the "parsimony principle." The basic idea of this central principle is that the punishment of convicted offenders must be no more severe than necessary to yield an appreciable deterrent effect on the commission of serious offenses. Finally, I consider how the principles of legitimate punishment might be translated into actual criminal justice policy. Here, I concede that the inevitability of reasonable disagreement, even among legislators deliberating in good faith over what punishments the principles allow, means that in practice we can never be fully confident of the legitimacy of any punishments imposed. As I show, however, the principles of legitimate punishment I identify still provide the basis from which to call into question the legitimacy of a range of criminal justice policies currently in force in the United States, including mandatory minimums, California's "three strikes" law, the under-funding of indigent defense, and the widespread overcrowding and sex
{"title":"Legitimate Punishment in Liberal Democracy","authors":"S. Dolovich","doi":"10.1525/NCLR.2004.7.2.307","DOIUrl":"https://doi.org/10.1525/NCLR.2004.7.2.307","url":null,"abstract":"What are the terms of legitimate punishment in a liberal democracy? Traditional approaches to this question tend to focus on the purposes punishment is supposed to serve (deterrence, retribution, rehabilitation, moral education, etc.) while giving little if any consideration to the coercive deployment of state power punishment represents. In this article, I take the coercive nature of state punishment as my starting point. My aim is to determine what normative constraints, if any, exist on the state's power to punish criminal offenders in a liberal democracy - a determination, I argue, that is especially urgent given the current size of America's prison population. To answer this question, I draw on the work of John Rawls. I do so because I share Rawls' view that, if the exercise of state power in a liberal democracy is to be legitimate, it must be justifiable in terms that all members of society subject to that power would accept as just and fair. Rawls' deliberative model was originally intended for questions of ideal theory, on which all members of society are assumed to act justly towards others. The first task of the paper is thus to render Rawls' model applicable to problems of partial compliance, of which punishment is one. Ultimately I argue that, assuming conditions of partial compliance, deliberating parties would approach the task of selecting principles of punishment by considering the implications of various alternative principles as if they could end up as either crime victim or punished offender once they enter society as citizens. Having established this perspective, and its consistency with the basic liberal ideals of moral equality and individual sovereignty, I then go on to determine the principles of punishment that would be selected by parties deliberating under these conditions and would thus constitute the terms of legitimate punishment in liberal democracy. I identify five such principles, at the heart of which is what I call, following Braithwaite and Pettit, the \"parsimony principle.\" The basic idea of this central principle is that the punishment of convicted offenders must be no more severe than necessary to yield an appreciable deterrent effect on the commission of serious offenses. Finally, I consider how the principles of legitimate punishment might be translated into actual criminal justice policy. Here, I concede that the inevitability of reasonable disagreement, even among legislators deliberating in good faith over what punishments the principles allow, means that in practice we can never be fully confident of the legitimacy of any punishments imposed. As I show, however, the principles of legitimate punishment I identify still provide the basis from which to call into question the legitimacy of a range of criminal justice policies currently in force in the United States, including mandatory minimums, California's \"three strikes\" law, the under-funding of indigent defense, and the widespread overcrowding and sex","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"138 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131935274","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 : 2003-11-23DOI: 10.1525/NCLR.2003.7.1.171
Wayne A. Logan
Articulation of purpose is, and should be, an important feature of any governmental activity. Since 1962, and the publication of the Model Penal Code, governments have increasingly seen fit to identify the purposes of punishment. To the extent such purposes have been expressly identified, however, they have primarily related to imprisonment, informing the duration inquiry. Governments have been far less dedicated to the articulation of the purposes of probation, a disposition that today easily accounts for the majority of penal outcomes in U.S. courts. This paper explores the role of purpose in probation decision making. It begins with a historical survey of probation, before and after the Model Penal Code, and assesses the unfortunate effects of purposelessness, a deficit the Code's probation provisions did little to ameliorate. The paper observes that as probation has become increasingly diversified in its applications over time, the absence of identified purpose in probation decisions has become all the more problematic. In its final part, the paper discusses the importance of articulated purpose in probation decision making, both with regard to decisions to grant probation and the types of probation conditions to which particular individuals are potentially subject.
{"title":"The Importance of Purpose in Probation Decision Making","authors":"Wayne A. Logan","doi":"10.1525/NCLR.2003.7.1.171","DOIUrl":"https://doi.org/10.1525/NCLR.2003.7.1.171","url":null,"abstract":"Articulation of purpose is, and should be, an important feature of any governmental activity. Since 1962, and the publication of the Model Penal Code, governments have increasingly seen fit to identify the purposes of punishment. To the extent such purposes have been expressly identified, however, they have primarily related to imprisonment, informing the duration inquiry. Governments have been far less dedicated to the articulation of the purposes of probation, a disposition that today easily accounts for the majority of penal outcomes in U.S. courts. This paper explores the role of purpose in probation decision making. It begins with a historical survey of probation, before and after the Model Penal Code, and assesses the unfortunate effects of purposelessness, a deficit the Code's probation provisions did little to ameliorate. The paper observes that as probation has become increasingly diversified in its applications over time, the absence of identified purpose in probation decisions has become all the more problematic. In its final part, the paper discusses the importance of articulated purpose in probation decision making, both with regard to decisions to grant probation and the types of probation conditions to which particular individuals are potentially subject.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"111 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123519898","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 : 2003-06-11DOI: 10.1525/NCLR.2003.7.1.17
E. Rubin
Retribution has become increasingly popular, among both legislators and scholars, as a rationale for punishment. The proposed revision of the Model Criminal Code adopts this newly fashionable standard and abandons its previous commitment to rehabilitation. The concept of retribution, however, is too vague to serve as an effective principle of punishment. It is sometimes defined as a requirement that the criminal be "paid back" for the harm he inflicted, but this is a virtually empty metaphor, since prison time has very little to do with repayment. A second definition of retribution involves desert, but the term is both over- and under-inclusive with respect to criminal punishment. Retribution does have a core meaning, however; it inevitably involves the idea of morally condemning the offender. The difficulty is that moral condemnation is entirely inconsistent with the premises of the modern administrative state. Modern governments are supposed to be instrumental - we want them to meet our needs, not to generate their own moral systems. It might be argued that a retributive standard responds to the people's morality, and more specifically to their anger at the criminal. But modern government is supposed to serve people's needs, not their passions, and our own Constitution is based on this exact ethos. In addition, retributive discourse is likely to exacerbate one of the most serious problems in American criminal justice, which is the over-use of imprisonment, particularly for non-violent offenders. The principles of punishment that should be adopted in place of retribution are rehabilitation and proportionality. Proportionality involves a relative ranking of crimes and punishments, so that the most severe punishments are imposed for the most serious crimes, and milder ones are used for less serious crimes. It would forbid the two California sentences that the Supreme Court just upheld against an Eighth Amendment challenge, where a person who stole $399 worth of golf clubs, and another who stole $150 worth of videotapes, received sentences of 25 years to life. Retributivists often adopt proportionality as their own means for establishing a punishment scale, but this only illustrates the emptiness of retribution as a concept. If retribution means anything, it is that we have some fixed idea about the amount of punishment a particular criminal deserves or should be paid back with, not that punishments should be determined by their relationship to other punishments. In fact, proportionality is an independent principle. While it is inconsistent with the concept of retribution, it serves as a complementary principle to rehabilitation.
{"title":"Just Say No to Retribution","authors":"E. Rubin","doi":"10.1525/NCLR.2003.7.1.17","DOIUrl":"https://doi.org/10.1525/NCLR.2003.7.1.17","url":null,"abstract":"Retribution has become increasingly popular, among both legislators and scholars, as a rationale for punishment. The proposed revision of the Model Criminal Code adopts this newly fashionable standard and abandons its previous commitment to rehabilitation. The concept of retribution, however, is too vague to serve as an effective principle of punishment. It is sometimes defined as a requirement that the criminal be \"paid back\" for the harm he inflicted, but this is a virtually empty metaphor, since prison time has very little to do with repayment. A second definition of retribution involves desert, but the term is both over- and under-inclusive with respect to criminal punishment. Retribution does have a core meaning, however; it inevitably involves the idea of morally condemning the offender. The difficulty is that moral condemnation is entirely inconsistent with the premises of the modern administrative state. Modern governments are supposed to be instrumental - we want them to meet our needs, not to generate their own moral systems. It might be argued that a retributive standard responds to the people's morality, and more specifically to their anger at the criminal. But modern government is supposed to serve people's needs, not their passions, and our own Constitution is based on this exact ethos. In addition, retributive discourse is likely to exacerbate one of the most serious problems in American criminal justice, which is the over-use of imprisonment, particularly for non-violent offenders. The principles of punishment that should be adopted in place of retribution are rehabilitation and proportionality. Proportionality involves a relative ranking of crimes and punishments, so that the most severe punishments are imposed for the most serious crimes, and milder ones are used for less serious crimes. It would forbid the two California sentences that the Supreme Court just upheld against an Eighth Amendment challenge, where a person who stole $399 worth of golf clubs, and another who stole $150 worth of videotapes, received sentences of 25 years to life. Retributivists often adopt proportionality as their own means for establishing a punishment scale, but this only illustrates the emptiness of retribution as a concept. If retribution means anything, it is that we have some fixed idea about the amount of punishment a particular criminal deserves or should be paid back with, not that punishments should be determined by their relationship to other punishments. In fact, proportionality is an independent principle. While it is inconsistent with the concept of retribution, it serves as a complementary principle to rehabilitation.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134058292","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}
Robinson supports the proposed purposes text of the New American Law Institute Report on Sentencing Reform but argues that in practice it will not mean what traditional utilitarians, like those supporting limiting retributivism, are expecting. First, the proposed text allows reliance upon non-desert distributive principles only to the extent that they serve their stated goals. As the ALI Report concedes, there are limits to the effectiveness one can expect from rehabilitation and, as is now becoming apparent from social science research, our realistic expectations for the effectiveness of deterrence are similarly fading. It is true that incapacitation undoubtedly works to prevent future crime and there is increasing evidence that restorative processes can be effective in achieving their goal, but following these distributive principles can have crime prevention costs (which the text's proposed distributive principle would not seem to allow to be taken into account). For example, most importantly, reliance upon these principles can undercut the criminal law's moral credibility and, thereby, its power to gain compliance by harnessing social norms. Second, the greatest constraint on the influence of the enumerated non-desert purposes is the proposed principle's demand that no distribution can conflict with the demands of desert. Contrary to the assumption of the original advocates of limiting retributivism that desert provides only vague outer limits on punishment, desert has quite specific demands, driven in large part by the demand of ordinal ranking: that a case of greater blameworthiness receive greater punishment than a case of comparatively less blameworthiness. Given the limited range of punishments a liberal democracy ought to be willing to inflict, distinguishing cases of distinguishable blameworthiness means that the deserved punishment will fall within a narrow range on the punishment continuum (a result consistent with what social scientists are lately learning about the rather sophisticated intuitions of justice shared by laypersons). In closing, Robinson offers brief remarks addressed to those who oppose a desert distribution, of which he suggests there are two sorts: those who have an erroneous of what desert means, and those who think avoiding crime is more important than doing justice. To the first group, he simply sketches the current consensus view of constitutes the modern conception of desert. To the second group, he argues that a desert distribution may well be the most effective in avoiding future crime, once one takes into account the crimogenic effect of nondesert distributions, when the community comes to understand that the criminal justice system is not in fact in the business of doing justice. In any case, he argues that in the absence of sufficient data to reliably answer the empirical question as to which distribution would best reduce crime, we ought to do at least what we know we can do: do justice.
{"title":"The A.L.I.'s Proposed Distributive Principle of 'Limiting Retributivism': Does It Mean In Practice Anything Other Than Pure Desert?","authors":"P. Robinson","doi":"10.1525/NCLR.2003.7.1.3","DOIUrl":"https://doi.org/10.1525/NCLR.2003.7.1.3","url":null,"abstract":"Robinson supports the proposed purposes text of the New American Law Institute Report on Sentencing Reform but argues that in practice it will not mean what traditional utilitarians, like those supporting limiting retributivism, are expecting. First, the proposed text allows reliance upon non-desert distributive principles only to the extent that they serve their stated goals. As the ALI Report concedes, there are limits to the effectiveness one can expect from rehabilitation and, as is now becoming apparent from social science research, our realistic expectations for the effectiveness of deterrence are similarly fading. It is true that incapacitation undoubtedly works to prevent future crime and there is increasing evidence that restorative processes can be effective in achieving their goal, but following these distributive principles can have crime prevention costs (which the text's proposed distributive principle would not seem to allow to be taken into account). For example, most importantly, reliance upon these principles can undercut the criminal law's moral credibility and, thereby, its power to gain compliance by harnessing social norms. Second, the greatest constraint on the influence of the enumerated non-desert purposes is the proposed principle's demand that no distribution can conflict with the demands of desert. Contrary to the assumption of the original advocates of limiting retributivism that desert provides only vague outer limits on punishment, desert has quite specific demands, driven in large part by the demand of ordinal ranking: that a case of greater blameworthiness receive greater punishment than a case of comparatively less blameworthiness. Given the limited range of punishments a liberal democracy ought to be willing to inflict, distinguishing cases of distinguishable blameworthiness means that the deserved punishment will fall within a narrow range on the punishment continuum (a result consistent with what social scientists are lately learning about the rather sophisticated intuitions of justice shared by laypersons). In closing, Robinson offers brief remarks addressed to those who oppose a desert distribution, of which he suggests there are two sorts: those who have an erroneous of what desert means, and those who think avoiding crime is more important than doing justice. To the first group, he simply sketches the current consensus view of constitutes the modern conception of desert. To the second group, he argues that a desert distribution may well be the most effective in avoiding future crime, once one takes into account the crimogenic effect of nondesert distributions, when the community comes to understand that the criminal justice system is not in fact in the business of doing justice. In any case, he argues that in the absence of sufficient data to reliably answer the empirical question as to which distribution would best reduce crime, we ought to do at least what we know we can do: do justice.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123450901","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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