{"title":"Proportional Mens Rea","authors":"Stephen F. Smith","doi":"10.2139/SSRN.3020394","DOIUrl":"https://doi.org/10.2139/SSRN.3020394","url":null,"abstract":"","PeriodicalId":51824,"journal":{"name":"AMERICAN CRIMINAL LAW REVIEW","volume":"46 1","pages":"127"},"PeriodicalIF":0.4,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68484720","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
While other scholars have pointed to imbalances in the design and functioning of the criminal justice system as the source of troubling disparities between the law on the books and the law in action, this Article argues that for crimes that rest on contested notions of social harm, factors external to the justice system are likely to be far more influential than internal dynamics in producing legal change. This insight, called the external evolutionary model of analysis, derives from social science work on the role of interest groups, social norms, and media influences on the law's creation and development, and the Article discusses these topics in the context of the consensus-conflict debate and the sociology of social problems. It then draws on historical, sociological, and original empirical data about statutory rape enforcement in the United States to demonstrate how political, cultural, and economic forces change the meaning of an unstable criminal law over time. Following this case study, the Article shows how broad statutory language and contested theories of harm largely contribute to the unchecked discretion of law enforcement actors who control the contours of actual criminal cases brought under these types of provisions. Finally, the Article suggests that, while flexibility in criminal prohibitions might be efficient, it ultimately diminishes the criminal law's legitimacy as an instrument of state power.
{"title":"The External Evolution of Criminal Law","authors":"Kay L. Levine","doi":"10.2139/SSRN.1018679","DOIUrl":"https://doi.org/10.2139/SSRN.1018679","url":null,"abstract":"While other scholars have pointed to imbalances in the design and functioning of the criminal justice system as the source of troubling disparities between the law on the books and the law in action, this Article argues that for crimes that rest on contested notions of social harm, factors external to the justice system are likely to be far more influential than internal dynamics in producing legal change. This insight, called the external evolutionary model of analysis, derives from social science work on the role of interest groups, social norms, and media influences on the law's creation and development, and the Article discusses these topics in the context of the consensus-conflict debate and the sociology of social problems. It then draws on historical, sociological, and original empirical data about statutory rape enforcement in the United States to demonstrate how political, cultural, and economic forces change the meaning of an unstable criminal law over time. Following this case study, the Article shows how broad statutory language and contested theories of harm largely contribute to the unchecked discretion of law enforcement actors who control the contours of actual criminal cases brought under these types of provisions. Finally, the Article suggests that, while flexibility in criminal prohibitions might be efficient, it ultimately diminishes the criminal law's legitimacy as an instrument of state power.","PeriodicalId":51824,"journal":{"name":"AMERICAN CRIMINAL LAW REVIEW","volume":"45 1","pages":"1039"},"PeriodicalIF":0.4,"publicationDate":"2007-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68127786","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Scholars have often criticized the government for relying on "cooperating" defendant/witnesses in obtaining convictions of other persons. Such scholars contend that cooperating witnesses are powerfully motivated to parrot information a prosecutor wants to hear and that as naturally biased advocates, prosecutors overlook and ignore signs that cooperating defendants are lying. This article asserts that defendants who "cooperate" with the government by substantially assisting in the prosecution of other crimes and criminals in exchange for a hope of receiving a more lenient sentence are invaluable crime prevention tools and should be encouraged. Nevertheless, the article recognizes the inconsistent manner in which prosecutors assess such witnesses, primarily because of the unfettered discretion prosecutors wield over cooperators. The law imposes no duty on prosecutors to deal critically or carefully with cooperating defendants. If prosecutors bear such a duty, and the article contends that they do, the obligation originates with a prosecutor's ethical duty "to do justice."The article explores a void in the legal and ethics literature regarding the federal prosecutor's ethical obligations around cooperating defendants. It discusses the nebulous nature of the duty to "do justice" in the context of evaluating, selecting or rejecting cooperation and ultimately concludes that the Department of Justice can further the prosecutor's ethical responsibility of dealing thoughtfully and thoroughly with cooperators by fostering an office culture in which critical and thoughtful assessment of such witnesses is rewarded.
{"title":"Prosecutors \"Doing Justice\" Through Osmosis -- Reminders to Encourage a Culture of Cooperation","authors":"Melanie D. Wilson","doi":"10.2139/SSRN.1004770","DOIUrl":"https://doi.org/10.2139/SSRN.1004770","url":null,"abstract":"Scholars have often criticized the government for relying on \"cooperating\" defendant/witnesses in obtaining convictions of other persons. Such scholars contend that cooperating witnesses are powerfully motivated to parrot information a prosecutor wants to hear and that as naturally biased advocates, prosecutors overlook and ignore signs that cooperating defendants are lying. This article asserts that defendants who \"cooperate\" with the government by substantially assisting in the prosecution of other crimes and criminals in exchange for a hope of receiving a more lenient sentence are invaluable crime prevention tools and should be encouraged. Nevertheless, the article recognizes the inconsistent manner in which prosecutors assess such witnesses, primarily because of the unfettered discretion prosecutors wield over cooperators. The law imposes no duty on prosecutors to deal critically or carefully with cooperating defendants. If prosecutors bear such a duty, and the article contends that they do, the obligation originates with a prosecutor's ethical duty \"to do justice.\"The article explores a void in the legal and ethics literature regarding the federal prosecutor's ethical obligations around cooperating defendants. It discusses the nebulous nature of the duty to \"do justice\" in the context of evaluating, selecting or rejecting cooperation and ultimately concludes that the Department of Justice can further the prosecutor's ethical responsibility of dealing thoughtfully and thoroughly with cooperators by fostering an office culture in which critical and thoughtful assessment of such witnesses is rewarded.","PeriodicalId":51824,"journal":{"name":"AMERICAN CRIMINAL LAW REVIEW","volume":"45 1","pages":"67"},"PeriodicalIF":0.4,"publicationDate":"2007-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68120475","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article observes that the wide discussion of cultural defenses over the last twenty years has produced very little actual change in the criminal law. It urges a reorientation of our approach thus far to cultural defenses and aspires to move the languishing discussion to a more productive place. The new perspective it proposes is justification. The Article asks the criminal law to make doctrinal room for defendants to argue that their allegedly criminal acts are justified acts, and not excused acts, based on the values and norms of their minority cultures. Currently, the criminal law deals with such acts of minority defendants through the excuse approach. It begins by relying excessively on the individual discretion of judges, prosecutors and law enforcement officials to achieve just results in such cases. When discretion fails, the status quo then employs the legal fiction of ill-fitting excuse defenses like temporary insanity and extreme emotional disturbance. The troubling message of the current approach is that minority defendants commit wrongful acts but are not blameworthy because they suffer from the defect or disability of their culture. The proposal of the Article is to replace this current excuse approach with a justification approach. In Part II, it explains the theoretical distinctions that separate excuse from justification and offers some elements and limits to a justification defense. It even describes some available doctrinal vehicles through which the criminal law can adopt the justification approach. In Part III, the Article applies the justification approach to three famous cultural defense cases. It uses the cases to make a powerful comparison of the relative weaknesses and strengths of the excuse approach and the justification approach. Adopting justification will eliminate the use of legal fictions, will force the criminal law to directly confront the difficult moral questions posed by such cases and will advance the cause of cultural pluralism in the criminal law.
{"title":"Culture as Justification, not Excuse","authors":"Elaine M. Chiu","doi":"10.2139/SSRN.895276","DOIUrl":"https://doi.org/10.2139/SSRN.895276","url":null,"abstract":"This Article observes that the wide discussion of cultural defenses over the last twenty years has produced very little actual change in the criminal law. It urges a reorientation of our approach thus far to cultural defenses and aspires to move the languishing discussion to a more productive place. The new perspective it proposes is justification. The Article asks the criminal law to make doctrinal room for defendants to argue that their allegedly criminal acts are justified acts, and not excused acts, based on the values and norms of their minority cultures. Currently, the criminal law deals with such acts of minority defendants through the excuse approach. It begins by relying excessively on the individual discretion of judges, prosecutors and law enforcement officials to achieve just results in such cases. When discretion fails, the status quo then employs the legal fiction of ill-fitting excuse defenses like temporary insanity and extreme emotional disturbance. The troubling message of the current approach is that minority defendants commit wrongful acts but are not blameworthy because they suffer from the defect or disability of their culture. The proposal of the Article is to replace this current excuse approach with a justification approach. In Part II, it explains the theoretical distinctions that separate excuse from justification and offers some elements and limits to a justification defense. It even describes some available doctrinal vehicles through which the criminal law can adopt the justification approach. In Part III, the Article applies the justification approach to three famous cultural defense cases. It uses the cases to make a powerful comparison of the relative weaknesses and strengths of the excuse approach and the justification approach. Adopting justification will eliminate the use of legal fictions, will force the criminal law to directly confront the difficult moral questions posed by such cases and will advance the cause of cultural pluralism in the criminal law.","PeriodicalId":51824,"journal":{"name":"AMERICAN CRIMINAL LAW REVIEW","volume":"43 1","pages":"1317"},"PeriodicalIF":0.4,"publicationDate":"2006-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67861048","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is generally well understood that the proper standard of proof in criminal cases is the familiar beyond a reasonable doubt standard. Recently, however, there have been proposals to create a new standard of proof - such as "beyond all doubt" or "no doubt" - for capital cases as a way of protecting against erroneous convictions. These proposals have become more urgent in light of revelations of serious errors in capital cases in recent years. This paper critiques such proposals. I argue that a higher standard of proof in capital cases can only be coherently justified on consequentialist grounds; and, if consequences are what matters, a higher standard of proof is unlikely to have the desired effect. Decades of empirical evidence show that changes to the wording of jury instructions are likely to have little, if any, impact on how jurors reach their decisions. As an alternative, I propose several other changes that might actually help guard against erroneous convictions in capital cases. First, I suggest either eliminating or altering the present system of "death qualification" of jurors in capital cases, which leads to an artificially low standard of proof in such cases. Second, I suggest several changes to the way in which jurors are instructed. Changing the verbal formulation is not likely to be effective, but instructing jurors at the beginning, rather than the end, of the case in the standard of proof; giving jurors written instructions; and finally, expressing the standard of proof in quantitative terms to ease comprehension all may achieve more satisfactory results.
{"title":"Absolute Certainty and the Death Penalty","authors":"Erik Lillquist","doi":"10.2139/SSRN.581281","DOIUrl":"https://doi.org/10.2139/SSRN.581281","url":null,"abstract":"It is generally well understood that the proper standard of proof in criminal cases is the familiar beyond a reasonable doubt standard. Recently, however, there have been proposals to create a new standard of proof - such as \"beyond all doubt\" or \"no doubt\" - for capital cases as a way of protecting against erroneous convictions. These proposals have become more urgent in light of revelations of serious errors in capital cases in recent years. This paper critiques such proposals. I argue that a higher standard of proof in capital cases can only be coherently justified on consequentialist grounds; and, if consequences are what matters, a higher standard of proof is unlikely to have the desired effect. Decades of empirical evidence show that changes to the wording of jury instructions are likely to have little, if any, impact on how jurors reach their decisions. As an alternative, I propose several other changes that might actually help guard against erroneous convictions in capital cases. First, I suggest either eliminating or altering the present system of \"death qualification\" of jurors in capital cases, which leads to an artificially low standard of proof in such cases. Second, I suggest several changes to the way in which jurors are instructed. Changing the verbal formulation is not likely to be effective, but instructing jurors at the beginning, rather than the end, of the case in the standard of proof; giving jurors written instructions; and finally, expressing the standard of proof in quantitative terms to ease comprehension all may achieve more satisfactory results.","PeriodicalId":51824,"journal":{"name":"AMERICAN CRIMINAL LAW REVIEW","volume":"42 1","pages":"45"},"PeriodicalIF":0.4,"publicationDate":"2004-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.581281","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67768199","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The lawfulness of the American trial","authors":"R. Burns","doi":"10.4324/9781351126663-2","DOIUrl":"https://doi.org/10.4324/9781351126663-2","url":null,"abstract":"","PeriodicalId":51824,"journal":{"name":"AMERICAN CRIMINAL LAW REVIEW","volume":"38 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2001-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70461810","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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