Pub Date : 2018-05-04DOI: 10.1080/0731129X.2018.1510652
Sheri L. Johnson
Courting Death: The Supreme Court and Capital Punishment by Carol and Jordan Steiker is, as the introduction states, “the story of how the American death penalty has come full circle over the past fifty years.” There have been quite a few books written about the American death penalty, so when I agreed to evaluate the submitted manuscript of Courting Death for a potential publisher, I doubted that another history would be especially enlightening. But Courting Death won me over. After my first read, it became my number one recommendation for the legal generalist—or lay reader—who wants a sophisticated understanding of the past, present, and future of the American death penalty. After the second read, undertaken for this review, I realized that it has almost as much to offer for the scholar who specializes in capital punishment law. It was this second read that prompted me to think more about the consequences of the Supreme Court’s failure (refusal? inability?) to sustain a focus on any of the problems that bedevil the administration of the death penalty; to employ the courtship metaphor embodied in the title of the Steikers’ book, the Supreme Court may be good for a couple of fun dates, but it’s not headed for the altar anytime soon.
{"title":"Not the Marrying Kind: A Review of Courting Death: The Supreme Court and Capital Punishment","authors":"Sheri L. Johnson","doi":"10.1080/0731129X.2018.1510652","DOIUrl":"https://doi.org/10.1080/0731129X.2018.1510652","url":null,"abstract":"Courting Death: The Supreme Court and Capital Punishment by Carol and Jordan Steiker is, as the introduction states, “the story of how the American death penalty has come full circle over the past fifty years.” There have been quite a few books written about the American death penalty, so when I agreed to evaluate the submitted manuscript of Courting Death for a potential publisher, I doubted that another history would be especially enlightening. But Courting Death won me over. After my first read, it became my number one recommendation for the legal generalist—or lay reader—who wants a sophisticated understanding of the past, present, and future of the American death penalty. After the second read, undertaken for this review, I realized that it has almost as much to offer for the scholar who specializes in capital punishment law. It was this second read that prompted me to think more about the consequences of the Supreme Court’s failure (refusal? inability?) to sustain a focus on any of the problems that bedevil the administration of the death penalty; to employ the courtship metaphor embodied in the title of the Steikers’ book, the Supreme Court may be good for a couple of fun dates, but it’s not headed for the altar anytime soon.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2018.1510652","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59557765","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 : 2018-05-04DOI: 10.1080/0731129X.2018.1500129
Seumas Miller
The moral, as opposed to legal, justification for the preventive detention of terrorists is the topic of this article, and, in particular, for the preventive detention of members of extremist Islamist terrorist organizations, such as Islamic State (IS) and Al Qaeda (AQ). The article argues that preventive detention of terrorists is morally justified under certain circumstances. Its argument for preventive detention of terrorists is analogous to that used to detain enemy combatants as prisoners of war. However, rather than relying on the possession of the properties definitive of the legal status of a combatant, it relies on demonstrable possession of constitutive features of functionally integrated membership of a terrorist organization. Membership in this sense of a terrorist organization creates the presumption of a standing intention to commit murder, or at least to assist others to do so, in the service of the organization’s political ends.
{"title":"The Moral Justification for the Preventive Detention of Terrorists","authors":"Seumas Miller","doi":"10.1080/0731129X.2018.1500129","DOIUrl":"https://doi.org/10.1080/0731129X.2018.1500129","url":null,"abstract":"The moral, as opposed to legal, justification for the preventive detention of terrorists is the topic of this article, and, in particular, for the preventive detention of members of extremist Islamist terrorist organizations, such as Islamic State (IS) and Al Qaeda (AQ). The article argues that preventive detention of terrorists is morally justified under certain circumstances. Its argument for preventive detention of terrorists is analogous to that used to detain enemy combatants as prisoners of war. However, rather than relying on the possession of the properties definitive of the legal status of a combatant, it relies on demonstrable possession of constitutive features of functionally integrated membership of a terrorist organization. Membership in this sense of a terrorist organization creates the presumption of a standing intention to commit murder, or at least to assist others to do so, in the service of the organization’s political ends.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2018.1500129","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43379060","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 : 2018-05-04DOI: 10.1080/0731129X.2018.1498663
P. Chau
This article examines whether bad upbringing (or what is sometimes called a “rotten social background”) affects just or deserved punishment. There are two possible rationales for this claim. First, it may be argued that an offender’s blameworthiness for his choice to offend is reduced if he had a bad upbringing; second, it may be argued that fairness requires us to impose a less severe punitive burden on an offender with a bad upbringing, even if he is no less blameworthy for his crime. The article rejects both of these rationales.
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Pub Date : 2018-05-04DOI: 10.1080/0731129X.2018.1500130
M. Gur‐Arye
In some instances, the criminal justice system is affected by a moral panic; that is, by an exaggerated social reaction to an assumed threat to moral values. When influenced by moral panic, courts demonize defendants and aggravate punishments. Are such responses legitimate? This article argues that by contrast to legitimate condemnation of criminal conduct, demonizing defendants ought never be legitimate. The legitimacy of aggravating punishment requires distinguishing between the sociological concept of legitimacy (“perceived legitimacy”) and the moral concept (“normative legitimacy”). Aggravation of punishment in response to moral panic might be perceived as legitimate since it expresses public perceptions about the severity of the threat to a social value, even when these perceptions are exaggerated; however, punishments that are proportionate to such a perceived, exaggerated, threat to a social value are unjust and unfair, and therefore are normatively illegitimate. When the panic subsides, courts tend to return to lower levels of punishment. The subsidence of the panic enables one to realize that a gap between perceived and normative legitimacy has been created during the panic. Should and can the gap be bridged retroactively in order to gain full legitimacy? One way to bridge the gap is to grant clemency that will reduce the punishment of defendants whose sentences were exaggerated unduly during the panic. The article proposes a more radical mechanism that allows for sentence re-evaluation in cases of moral panic.
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Pub Date : 2018-05-04DOI: 10.1080/0731129X.2018.1498662
G. Chin
id=2809840. Lipke, Richard. Taming the Presumption of Innocence. New York: Oxford, 2012. Stevenson, Megan. “Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes.” Working Paper, May 2, 2016. https://papers. ssrn.com/sol3/papers.cfm?abstract_id=
{"title":"A Hard Look at the Presumption of Innocence","authors":"G. Chin","doi":"10.1080/0731129X.2018.1498662","DOIUrl":"https://doi.org/10.1080/0731129X.2018.1498662","url":null,"abstract":"id=2809840. Lipke, Richard. Taming the Presumption of Innocence. New York: Oxford, 2012. Stevenson, Megan. “Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes.” Working Paper, May 2, 2016. https://papers. ssrn.com/sol3/papers.cfm?abstract_id=","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2018.1498662","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48902359","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 : 2018-05-04DOI: 10.1080/0731129X.2018.1499699
D. Heyd
Love and generosity are by their nature boundless, free from calculation. However, much of human interaction and particularly relations of justice are based on keeping score. Keeping score is by definition backward-looking. Like in sport, it is constituted by recording past events and retaining them in memory for some future use. Even forgiveness, as will be argued below, is characterized by some element of retention of past events since, as most analysts of the concept agree, forgiveness does not simply mean forgetting the offense. Justice, from Anaximander, through Plato, to the emblem of the blindfolded goddess holding a pair of scales, is a concept of balancing. Neither desert nor punishment, neither gratitude nor revenge, can be dispensed without keeping score. In her impressively rich book on anger and forgiveness, Martha Nussbaum provides a broad and deep critique of score-keeping in general and of moral and legal score-keeping in particular. Her starting point is the detailed examination of anger, that universal emotion which was studied by ethical theories of the past but which has been ignored by modern moral philosophy. The book then presents an argument for forgiveness as one way of overcoming the dangers of anger and specifically argues for unconditional forgiveness. But since forgiveness is only a second-best solution to the drawbacks of anger, Nussbaum proposes the attitudes of love and generosity as the normative ideal. Settling accounts is anathema to Nussbaum in both personal relations and in the impersonal realm of justice. It is harmful to both the individual’s psychological health ∗David Heyd is the Professor of Philosophy in the Department of Philosophy at the Hebrew University of Jerusalem, Jerusalem, Israel. Email: david.heyd@mail.huji.ac.il Criminal Justice Ethics, 2018 Vol. 37, No. 2, 189–200, https://doi.org/10.1080/0731129X.2018.1499699
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Pub Date : 2018-01-02DOI: 10.1080/0731129X.2018.1449996
Mary Sigler
Siblings Carol and Jordan Steiker come by their opposition to capital punishment honestly. As law clerks to Justice ThurgoodMarshall, an inveterate abolitionist, they observed and participated in the process of reviewing (and resisting) death sentences first-hand. As legal scholars and activists, they have continued to press their case, highlighting the unfairness, unwisdom, and incoherence of American capital sentencing law and practice. Courting Death represents the culmination of their efforts to understand, explain, and hasten the demise of capital punishment. It is packed with interesting historical details and learned insights about legal strategy, political realities, and judicial decision-making related primarily to criminal justice in the United States. It also develops and defends a compelling narrative about the course and character of American-style capital punishment, showing how the process of constitutional regulation, designed to preserve the death penalty, may yet prove its undoing. Indeed, the puzzle at the heart of the book concerns the process by which the Supreme Court’s decision to regulate capital punishment in the 1960s led first almost to abolition in 1972, then to retrenchment in 1976, and now again to a likely abolition. In particular, they note:
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Pub Date : 2018-01-02DOI: 10.1080/0731129X.2018.1441227
V. Geeraets
This article identifies two mistakes commonly made about the concept of punishment. First, confusion exists about when an analysis of punishment counts as retributive, and when as justificatorily neutral. In particular, a fair number of legal scholars claim to analyze punishment in a neutral way, but closer inspection shows that many of these definitions are not justificatorily neutral. Second, legal scholars tend to analyze the concept of punishment very restrictively, with a focus on the intention of the legislator. While there may be good reasons to restrict the scope of the concept of punishment in the legal arena, from a philosophical point of view, restrictive analysis is not fruitful. It is a bad starting point for critical evaluation, because it is perfectly possible for impositions generally experienced as punitive not to be classified as such. This is all the more troublesome given that these impositions often contain fewer safeguards than are offered in criminal law and that there is sometimes a taboo on the language game related to punishment. I argue that these problems can be overcome by embracing an inclusive, justificatorily neutral concept of punishment that takes the outward appearance of the harm inflicted as its starting point.
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Pub Date : 2018-01-02DOI: 10.1080/0731129X.2018.1449998
Laura S. Underkuffler
Under the traditional theory of religious exemptions In American law, individuals and organizations whose actions violate civil and criminal laws are exempt from those laws if their actions are for religious reasons. This idea, although enjoying a long doctrinal presence, is increasingly contested in contemporary American society. In this article, the author takes particular issue with the common (although often unarticulated) assumption that religious exemptions are justified by the idea that religion is “good in itself,” or that the religious objector has a sympathetic – “personally sincere” – character. The uncomplicated assumption that religious exemptions are amply supported by the idea that religion is a “good in itself” no longer describes what the broad swath of American society believes. Nor does the idea that religious adherents are “sincere” or “of good character” justify their exemption from the foundational norms that society otherwise establishes. As cases involving religious exemptions from same-sex marriage laws, land-use laws, employer-mandate laws, vaccination laws, and others are litigated, the costs of religious exemptions for the rights of others are becoming increasingly apparent. The inquiry must be one of achieving justice, and justice is an inquiry in which the interests of all must be equally and seriously considered.
{"title":"Should the Religious Be Exempt? Questions of Justice, Character, and the Maintenance of Norms","authors":"Laura S. Underkuffler","doi":"10.1080/0731129X.2018.1449998","DOIUrl":"https://doi.org/10.1080/0731129X.2018.1449998","url":null,"abstract":"Under the traditional theory of religious exemptions In American law, individuals and organizations whose actions violate civil and criminal laws are exempt from those laws if their actions are for religious reasons. This idea, although enjoying a long doctrinal presence, is increasingly contested in contemporary American society. In this article, the author takes particular issue with the common (although often unarticulated) assumption that religious exemptions are justified by the idea that religion is “good in itself,” or that the religious objector has a sympathetic – “personally sincere” – character. The uncomplicated assumption that religious exemptions are amply supported by the idea that religion is a “good in itself” no longer describes what the broad swath of American society believes. Nor does the idea that religious adherents are “sincere” or “of good character” justify their exemption from the foundational norms that society otherwise establishes. As cases involving religious exemptions from same-sex marriage laws, land-use laws, employer-mandate laws, vaccination laws, and others are litigated, the costs of religious exemptions for the rights of others are becoming increasingly apparent. The inquiry must be one of achieving justice, and justice is an inquiry in which the interests of all must be equally and seriously considered.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2018.1449998","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44858093","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 : 2018-01-02DOI: 10.1080/0731129X.2018.1449364
M. Corrado
Justifying state punishment presents a difficulty for those who deny that human actions are free in the sense required by moral responsibility. The argument I make in this article, following work done by Double, Vilhauer, and Sehon, is that those who believe that human beings do sometimes act freely face exactly the same difficulty, for no current account of freedom has the sort of evidentiary support that condemning a person to punishment requires; no current account could meet even the most minimal burden of proof. Recourse to purely preventive methods, such as are proposed for a system of quarantine of dangerous individuals, seems undesirable because of the absence of limits under such a system, limits like the requirements of proportionality and guilt. That same objection holds as well against proposals of non-retributive punishment. The adoption of a system of punishment, understood retributively or non-retributively, does not preclude the state even in theory from also adopting a system of preventive measures. The answer that I suggest is a system of limited deprivations of freedom justified in much the way the doctrine of takings is justified, along with the specific exclusion of purely preventive methods for competent individuals.
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