Pub Date : 2018-05-01DOI: 10.1525/NCLR.2018.21.2.291
V. Hardcastle, M. K. Kitzmiller, Shelby Lahey
Data regarding gender disparities in sentencing are contradictory. We argue that one reason for the mixed results is that female defendants who commit similar crimes are treated differently depending upon whether the defense portrays them as someone with serious mental deficiencies or as a normal person who got caught up in abnormal circumstances. We suggest that judges and juries use neuroscience data to support their preconceived notions of what “bad” women are like, even as defense counsel presents these data to support claims that their clients are less culpable. Using a case study approach, we do a pair-wise comparison of four appellate decisions in which female defendants were accused of committing similar crimes under similar circumstances, but for whom data regarding brain impairments differed substantially to determine what difference the neuroscience data might make in case outcomes. This analysis provides preliminary data suggesting that neuroscience data can act to promote a defendant’s blameworthiness even as it is used to mitigate the findings.
{"title":"The Impact of Neuroscience Data in Criminal Cases: Female Defendants and the Double-Edged Sword","authors":"V. Hardcastle, M. K. Kitzmiller, Shelby Lahey","doi":"10.1525/NCLR.2018.21.2.291","DOIUrl":"https://doi.org/10.1525/NCLR.2018.21.2.291","url":null,"abstract":"Data regarding gender disparities in sentencing are contradictory. We argue that one reason for the mixed results is that female defendants who commit similar crimes are treated differently depending upon whether the defense portrays them as someone with serious mental deficiencies or as a normal person who got caught up in abnormal circumstances. We suggest that judges and juries use neuroscience data to support their preconceived notions of what “bad” women are like, even as defense counsel presents these data to support claims that their clients are less culpable. Using a case study approach, we do a pair-wise comparison of four appellate decisions in which female defendants were accused of committing similar crimes under similar circumstances, but for whom data regarding brain impairments differed substantially to determine what difference the neuroscience data might make in case outcomes. This analysis provides preliminary data suggesting that neuroscience data can act to promote a defendant’s blameworthiness even as it is used to mitigate the findings.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2018-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78475996","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 : 2018-05-01DOI: 10.1525/NCLR.2018.21.2.267
A. Walsh, V. Hatch
This article explores the emotions behind the retributive urge as it applies to the death penalty in the United States. It is argued that the retributive urge is so strong because it engages the most primitive of our emotions, and that these emotions served adaptive purposes over the course of human evolution. Many scholars offended by the retributive instinct insist that we must put emotions aside when discussing the death penalty, even as jurors in death penalty cases, and rely on our rationality. To ask this is to ask what almost all normal people find impossible because the emotions evoked in capital cases (disgust, anger, sympathy for the victim, desire for justice) evolved for the purpose of maintaining group stability and survival by punishing freeloaders. Modern neuroscience has destroyed the traditional notion that rationality and emotion are antagonists. Brain imaging techniques show that they are fully integrated in our brain wiring, and both are engaged in decision making, but when reason and emotion yield conflicting judgments, the latter almost always triumphs. The evolutionary rationales for why emotions conducive to punitive responses for wrongdoers exist are examined.
{"title":"Capital Punishment, Retribution, and EmotionAn Evolutionary Perspective","authors":"A. Walsh, V. Hatch","doi":"10.1525/NCLR.2018.21.2.267","DOIUrl":"https://doi.org/10.1525/NCLR.2018.21.2.267","url":null,"abstract":"This article explores the emotions behind the retributive urge as it applies to the death penalty in the United States. It is argued that the retributive urge is so strong because it engages the most primitive of our emotions, and that these emotions served adaptive purposes over the course of human evolution. Many scholars offended by the retributive instinct insist that we must put emotions aside when discussing the death penalty, even as jurors in death penalty cases, and rely on our rationality. To ask this is to ask what almost all normal people find impossible because the emotions evoked in capital cases (disgust, anger, sympathy for the victim, desire for justice) evolved for the purpose of maintaining group stability and survival by punishing freeloaders. Modern neuroscience has destroyed the traditional notion that rationality and emotion are antagonists. Brain imaging techniques show that they are fully integrated in our brain wiring, and both are engaged in decision making, but when reason and emotion yield conflicting judgments, the latter almost always triumphs. The evolutionary rationales for why emotions conducive to punitive responses for wrongdoers exist are examined.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2018-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83299721","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 : 2018-02-01DOI: 10.1525/NCLR.2018.21.1.141
P. Gooding, T. Bennet
The U.N. Convention on the Rights of Persons with Disabilities (CRPD) may require the abolition of the insanity defense and similar “special defenses” in criminal law. Proponents argue that abolishing the defense would advance efforts to fully recognize the legal capacity of persons with disabilities on an equal basis with others; detractors suggest it would compound the substantive inequality of an already marginalized population. This paper seeks to accelerate this debate with reference to Swedish criminal law, which saw the abolition of the insanity defense in 1965. Neither side of the debate appears to have considered the anomaly of Swedish criminal law. Equally, Swedish legislators appear to have overlooked CRPD-based considerations. Instead, Sweden seems likely to reintroduce the insanity defense following long-standing domestic criticism. This paper brings together developments in Sweden and international human rights law, and draws out conceptual and practical lessons in the quest for due process rights and substantive equality for people with disabilities in criminal law.
{"title":"The Abolition of the Insanity Defense in Sweden and the United Nations Convention on the Rights of Persons with Disabilities: Human Rights Brinksmanship or Evidence It Won’t Work?","authors":"P. Gooding, T. Bennet","doi":"10.1525/NCLR.2018.21.1.141","DOIUrl":"https://doi.org/10.1525/NCLR.2018.21.1.141","url":null,"abstract":"The U.N. Convention on the Rights of Persons with Disabilities (CRPD) may require the abolition of the insanity defense and similar “special defenses” in criminal law. Proponents argue that abolishing the defense would advance efforts to fully recognize the legal capacity of persons with disabilities on an equal basis with others; detractors suggest it would compound the substantive inequality of an already marginalized population. This paper seeks to accelerate this debate with reference to Swedish criminal law, which saw the abolition of the insanity defense in 1965. Neither side of the debate appears to have considered the anomaly of Swedish criminal law. Equally, Swedish legislators appear to have overlooked CRPD-based considerations. Instead, Sweden seems likely to reintroduce the insanity defense following long-standing domestic criticism. This paper brings together developments in Sweden and international human rights law, and draws out conceptual and practical lessons in the quest for due process rights and substantive equality for people with disabilities in criminal law.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84833426","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 : 2018-02-01DOI: 10.1525/NCLR.2018.21.1.57
Hamed Tofangsaz
This article analyzes the criminalization provisions of the International Convention for the Suppression of the Financing of Terrorism, the backbone of the legal regime for the prevention of terrorist financing. It makes a detailed examination of the background of the Convention and the nature of the negotiation discussions that led to its adoption. The drafters of the Convention were faced with two problems: first, how to define terrorism, terrorist acts, and terrorist groups, the financing of which should be addressed; second, the precise scope of the offense, in particular, how to define the preparatory acts of financing as an independent offense. This article argues that the definition of the offense provided by the Convention is far too ambiguous, and its application at national levels can often lead to an unjustifiable and unfair criminal law.
{"title":"Criminalization of Terrorist Financing: From Theory to Practice","authors":"Hamed Tofangsaz","doi":"10.1525/NCLR.2018.21.1.57","DOIUrl":"https://doi.org/10.1525/NCLR.2018.21.1.57","url":null,"abstract":"This article analyzes the criminalization provisions of the International Convention for the Suppression of the Financing of Terrorism, the backbone of the legal regime for the prevention of terrorist financing. It makes a detailed examination of the background of the Convention and the nature of the negotiation discussions that led to its adoption. The drafters of the Convention were faced with two problems: first, how to define terrorism, terrorist acts, and terrorist groups, the financing of which should be addressed; second, the precise scope of the offense, in particular, how to define the preparatory acts of financing as an independent offense. This article argues that the definition of the offense provided by the Convention is far too ambiguous, and its application at national levels can often lead to an unjustifiable and unfair criminal law.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83521301","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 : 2018-02-01DOI: 10.1525/NCLR.2018.21.1.1
Jake Elijah Struebing
The recent indictment of more than 40 individuals and entities in the FIFA corruption scandal demonstrates the expansive reach of the federal criminal law, raising important questions of extraterritorial jurisdiction and substantive law. This article argues that the existing law is sufficient to capture pervasive corruption in international organizations like Federation Internationale de Football Association (FIFA) when their transactions reach domestic wires in the financial system. The principal charge in the FIFA case, for example, falls under the Racketeer Influenced and Corrupt Organizations Act (RICO). But the extraterritorial application of RICO is far from settled law, and the dramatic scale of the racketeering conspiracy will have profound implications for the substantive law, presenting problems of legal specification and challenging the transactional model of crime. One of the indictment’s predicate offenses, moreover, is a novel honest services fraud charge that implicates the very nature of fiduciary duties in the international marketplace. This article suggests that the law should extend fiduciary protections against commercial bribery in the international sphere so long as the values underlying those protections accord with collectively shared norms. Finally, this article advances a conceptual understanding, informed by theories of global governance and development, of why the law should countenance international corruption. Federal prosecutors are becoming increasingly concerned with the integrity of globally integrated markets, and global prosecutions may carry the potential to strengthen deterrence, policy cohesion among decentralized stakeholders, and reinforce international norms of conduct.
{"title":"Federal Criminal Law and International Corruption: An Appraisal of the FIFA Prosecution","authors":"Jake Elijah Struebing","doi":"10.1525/NCLR.2018.21.1.1","DOIUrl":"https://doi.org/10.1525/NCLR.2018.21.1.1","url":null,"abstract":"The recent indictment of more than 40 individuals and entities in the FIFA corruption scandal demonstrates the expansive reach of the federal criminal law, raising important questions of extraterritorial jurisdiction and substantive law. This article argues that the existing law is sufficient to capture pervasive corruption in international organizations like Federation Internationale de Football Association (FIFA) when their transactions reach domestic wires in the financial system. The principal charge in the FIFA case, for example, falls under the Racketeer Influenced and Corrupt Organizations Act (RICO). But the extraterritorial application of RICO is far from settled law, and the dramatic scale of the racketeering conspiracy will have profound implications for the substantive law, presenting problems of legal specification and challenging the transactional model of crime. One of the indictment’s predicate offenses, moreover, is a novel honest services fraud charge that implicates the very nature of fiduciary duties in the international marketplace. This article suggests that the law should extend fiduciary protections against commercial bribery in the international sphere so long as the values underlying those protections accord with collectively shared norms. Finally, this article advances a conceptual understanding, informed by theories of global governance and development, of why the law should countenance international corruption. Federal prosecutors are becoming increasingly concerned with the integrity of globally integrated markets, and global prosecutions may carry the potential to strengthen deterrence, policy cohesion among decentralized stakeholders, and reinforce international norms of conduct.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89547400","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 : 2018-02-01DOI: 10.1525/NCLR.2018.21.1.170
Julia Quilter, Luke McNamara
Although alcohol and drug use features prominently in many areas of criminal offending, there has been limited investigation of how the effects of alcohol and other drugs are treated by criminal laws and the criminal justice system. This article examines the framing of judicial inquiries about “intoxication” in criminal cases in Australia. It illustrates the diverse types of evidence that may (or may not) be available to judges and juries when faced with the task of determining whether a person was relevantly “intoxicated.” It shows that in the absence of legislative guidance on how the task should be approached, courts tend to assign only a relatively marginal role to medical and scientific expert evidence, and frame the question as one that can be answered by applying common knowledge about the effects of alcohol and other drugs. The article examines the adequacy of this approach, given the weak foundation for assuming that the relationship between intoxication and the complex cognitive processes on which tribunals of fact are often required to reach conclusions (such as intent formation) is within the lay knowledge held by jurors and judges.
{"title":"The Meaning of “Intoxication” in Australian Criminal Cases: Origins and Operation","authors":"Julia Quilter, Luke McNamara","doi":"10.1525/NCLR.2018.21.1.170","DOIUrl":"https://doi.org/10.1525/NCLR.2018.21.1.170","url":null,"abstract":"Although alcohol and drug use features prominently in many areas of criminal offending, there has been limited investigation of how the effects of alcohol and other drugs are treated by criminal laws and the criminal justice system. This article examines the framing of judicial inquiries about “intoxication” in criminal cases in Australia. It illustrates the diverse types of evidence that may (or may not) be available to judges and juries when faced with the task of determining whether a person was relevantly “intoxicated.” It shows that in the absence of legislative guidance on how the task should be approached, courts tend to assign only a relatively marginal role to medical and scientific expert evidence, and frame the question as one that can be answered by applying common knowledge about the effects of alcohol and other drugs. The article examines the adequacy of this approach, given the weak foundation for assuming that the relationship between intoxication and the complex cognitive processes on which tribunals of fact are often required to reach conclusions (such as intent formation) is within the lay knowledge held by jurors and judges.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75061243","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 : 2017-11-01DOI: 10.1525/NCLR.2017.20.4.569
A. Gray
This Article documents the increasing range of instances in which the presumption of innocence has been abrogated by legislation. Legislatures are responding to fears around terrorism and general community anxiety about law and order issues by increasing resort to reverse onus provisions. While the right of the legislature to enact laws thought to further public safety is acknowledged, the presumption of innocence is a long-standing, fundamental due process right. This Article specifically considers the extent to which reverse onus provisions are constitutionally valid in a range of jurisdictions considered comparable. It finds that the approach in use in some jurisdictions studied, testing the constitutionality of reverse onus provisions on the basis of whether they practically permit an accused to be found guilty although there is reasonable doubt about their guilt, has much to commend it. However, this is part-solution only, since legislatures may then be driven to redefine crimes to seek to effectively cast the burden of proof onto an accused by redefining what is in substance an element of a defense. Thus, it favors a substantive approach to determining what the prosecutor must show to obtain a conviction, utilizing concepts such as moral blameworthiness and actus reus/mens rea .
{"title":"The Presumption of Innocence Under Attack","authors":"A. Gray","doi":"10.1525/NCLR.2017.20.4.569","DOIUrl":"https://doi.org/10.1525/NCLR.2017.20.4.569","url":null,"abstract":"This Article documents the increasing range of instances in which the presumption of innocence has been abrogated by legislation. Legislatures are responding to fears around terrorism and general community anxiety about law and order issues by increasing resort to reverse onus provisions. While the right of the legislature to enact laws thought to further public safety is acknowledged, the presumption of innocence is a long-standing, fundamental due process right. This Article specifically considers the extent to which reverse onus provisions are constitutionally valid in a range of jurisdictions considered comparable. It finds that the approach in use in some jurisdictions studied, testing the constitutionality of reverse onus provisions on the basis of whether they practically permit an accused to be found guilty although there is reasonable doubt about their guilt, has much to commend it. However, this is part-solution only, since legislatures may then be driven to redefine crimes to seek to effectively cast the burden of proof onto an accused by redefining what is in substance an element of a defense. Thus, it favors a substantive approach to determining what the prosecutor must show to obtain a conviction, utilizing concepts such as moral blameworthiness and actus reus/mens rea .","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2017-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81266336","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 : 2017-11-01DOI: 10.1525/NCLR.2017.20.4.616
Seth Mayer, F. I. Patti
There is broad agreement that the American criminal sentencing system is deeply flawed, yet current theoretical frameworks for sentencing have failed to offer a way forward for reform. These frameworks have not faced up to political disagreement over sentencing. Instead, they either try to impose disputed moral theories (such as retributivism or consequentialism), or they downplay normative considerations and seek to impose numerically consistent, rather than normatively justified, sentences. That is, the first, moral approach tries to impose a specific moral view in spite of disagreement, while the second, empirical approach tries and fails to repress disagreement and normative debate. The failures of both approaches are in evidence in the process that led to the development of the United States Sentencing Guidelines. A framework for sentencing that directly and effectively confronts political disagreement is necessary. This Article is the first to offer such a framework. It draws on deliberative democratic conceptions of legitimacy to develop a framework for sentencing that addresses disagreement. Deliberative democracy offers a normatively grounded approach to managing disagreement through collective reasoning, which aims to place the legal system under public control. This Article articulates criteria for evaluating legal systems from the perspective of a particular conception of deliberative democratic legitimacy. In light of these criteria, it offers reforms to enable the current system to better embody deliberative democracy, to confront political disagreement over sentencing, and to improve the troubled sentencing system through public reasoning.
{"title":"Confronting Political Disagreement About Sentencing: A Deliberative Democratic Framework","authors":"Seth Mayer, F. I. Patti","doi":"10.1525/NCLR.2017.20.4.616","DOIUrl":"https://doi.org/10.1525/NCLR.2017.20.4.616","url":null,"abstract":"There is broad agreement that the American criminal sentencing system is deeply flawed, yet current theoretical frameworks for sentencing have failed to offer a way forward for reform. These frameworks have not faced up to political disagreement over sentencing. Instead, they either try to impose disputed moral theories (such as retributivism or consequentialism), or they downplay normative considerations and seek to impose numerically consistent, rather than normatively justified, sentences. That is, the first, moral approach tries to impose a specific moral view in spite of disagreement, while the second, empirical approach tries and fails to repress disagreement and normative debate. The failures of both approaches are in evidence in the process that led to the development of the United States Sentencing Guidelines. A framework for sentencing that directly and effectively confronts political disagreement is necessary. This Article is the first to offer such a framework. It draws on deliberative democratic conceptions of legitimacy to develop a framework for sentencing that addresses disagreement. Deliberative democracy offers a normatively grounded approach to managing disagreement through collective reasoning, which aims to place the legal system under public control. This Article articulates criteria for evaluating legal systems from the perspective of a particular conception of deliberative democratic legitimacy. In light of these criteria, it offers reforms to enable the current system to better embody deliberative democracy, to confront political disagreement over sentencing, and to improve the troubled sentencing system through public reasoning.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2017-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72658524","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 : 2017-08-01DOI: 10.1525/NCLR.2017.20.3.433
Shachar Eldar, Elkana Laist
One of the maxims of criminal law orthodoxy states that a defendant’s motive for offending, be it good or bad, should have no weight in assessing his or her criminal liability – although it may rightfully bear on the punishment imposed. Known as the “irrelevance of motive principle”, this idea owes much of its popular stature in legal thinking to arguments that draw on the notion of the rule of law. It is said that allowing defendants’ motives to generate or negate their criminal liability would undermine the state’s authority in defining the contours of crime. The article identifies and critically examines three streams of such arguments, and these in turn lead to three findings. First, each manifestation of the rule of law argument defends a somewhat different conception of the irrelevance principle; this means that despite the common allusion to “the” irrelevance principle, there is no singular principle, but instead several variants of the norm are at play. Secondly, rule of law arguments fail to sustain any meaningful notion of the irrelevance principle. Finally, there exists a sphere of instances where the careful application of motives to criminal directives may actually advance the rule of law by infusing legislation with added clarity and richness.
{"title":"The Irrelevance of Motive and the Rule of Law","authors":"Shachar Eldar, Elkana Laist","doi":"10.1525/NCLR.2017.20.3.433","DOIUrl":"https://doi.org/10.1525/NCLR.2017.20.3.433","url":null,"abstract":"One of the maxims of criminal law orthodoxy states that a defendant’s motive for offending, be it good or bad, should have no weight in assessing his or her criminal liability – although it may rightfully bear on the punishment imposed. Known as the “irrelevance of motive principle”, this idea owes much of its popular stature in legal thinking to arguments that draw on the notion of the rule of law. It is said that allowing defendants’ motives to generate or negate their criminal liability would undermine the state’s authority in defining the contours of crime. The article identifies and critically examines three streams of such arguments, and these in turn lead to three findings. First, each manifestation of the rule of law argument defends a somewhat different conception of the irrelevance principle; this means that despite the common allusion to “the” irrelevance principle, there is no singular principle, but instead several variants of the norm are at play. Secondly, rule of law arguments fail to sustain any meaningful notion of the irrelevance principle. Finally, there exists a sphere of instances where the careful application of motives to criminal directives may actually advance the rule of law by infusing legislation with added clarity and richness.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2017-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83925170","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 : 2017-08-01DOI: 10.1525/NCLR.2017.20.3.465
Stephen R. Galoob
Retributivist theories of punishment are in tension with due process. Some retributivists adopt a simple view that punishment of the deserving is normatively justified. However, this Simple Retributivism licenses unjust and illegitimate rules of criminal procedure. A more refined version of retributivism, on which a person’s punishment is justified only if she deserves to be punished for the offense with which she is charged and her desert bases cause her to be liable to punishment, avoids the troubling implications of Simple Retributivism. Refined Retributivism also entails specific principles for implementing criminal law—that is, a distinctively Retributivist Criminal Procedure. On this Retributivist Criminal Procedure, procedural mechanisms must establish that there are good reasons to believe that an offender deserves to be punished for an offense, and these reasons must cause the offender’s liability to punishment. Yet Refined Retributivism is also difficult to reconcile with due process. Although Retributivist Criminal Procedure has some salutary implications, it also calls for abolishing core aspects of the U.S. system of criminal justice and features that are essential to any legitimate criminal justice system. Thus, retributivism (whether Simple or Refined) does not provide the basis for a just criminal procedure.
{"title":"Retributivism and Criminal Procedure","authors":"Stephen R. Galoob","doi":"10.1525/NCLR.2017.20.3.465","DOIUrl":"https://doi.org/10.1525/NCLR.2017.20.3.465","url":null,"abstract":"Retributivist theories of punishment are in tension with due process. Some retributivists adopt a simple view that punishment of the deserving is normatively justified. However, this Simple Retributivism licenses unjust and illegitimate rules of criminal procedure. A more refined version of retributivism, on which a person’s punishment is justified only if she deserves to be punished for the offense with which she is charged and her desert bases cause her to be liable to punishment, avoids the troubling implications of Simple Retributivism. Refined Retributivism also entails specific principles for implementing criminal law—that is, a distinctively Retributivist Criminal Procedure. On this Retributivist Criminal Procedure, procedural mechanisms must establish that there are good reasons to believe that an offender deserves to be punished for an offense, and these reasons must cause the offender’s liability to punishment. Yet Refined Retributivism is also difficult to reconcile with due process. Although Retributivist Criminal Procedure has some salutary implications, it also calls for abolishing core aspects of the U.S. system of criminal justice and features that are essential to any legitimate criminal justice system. Thus, retributivism (whether Simple or Refined) does not provide the basis for a just criminal procedure.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2017-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91219995","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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