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Abstract:
If there can be said to be an "American criminal code," the Model Penal Code is it. Nonetheless, there remains an enormous diversity among the fifty-two American penal codes, including some that have never adopted a modern code format or structure. Yet, even within the minority of states without a modern code, the Model Penal Code has great influence, as courts regularly rely upon it to fashion the law that the state's criminal code fails to provide. In this essay we provide a brief introduction to this historic document, its history and its content.

model penal code, criminal

Abstract:
One popular justification for punishment is the just deserts rationale: A person deserves punishment proportionate to the moral wrong committed. A competing justification is the deterrence rationale: Punishing an offender reduces the frequency and likelihood of future offenses. The authors examined the motivation underlying laypeople's use of punishment for prototypical wrongs. Study 1 (N = 336) revealed high sensitivity to factors uniquely associated with the just deserts perspective (e.g., offense seriousness, moral trespass) and insensitivity to factors associated with deterrence (e.g., likelihood of detection, offense frequency). Study 2 (N = 329) confirmed the proposed model through structural equation modeling (SEM). Study 3 (N = 351) revealed that despite strongly stated preferences for deterrence theory, individual sentencing decisions seemed driven exclusively by just deserts concerns.

Punishment, desert, deterrence

Abstract:
Contrary to the common wisdom among criminal law scholars, empirical evidence reveals that people's intuitions of justice are often specific, nuanced, and widely shared. Indeed, with regard to the core harms and evils to which criminal law addresses itself-physical aggression, takings without consent, and deception in transactions-the shared intuitions are stunningly consistent across cultures as well as demographics. It is puzzling that judgments of moral blameworthiness, which seem so complex and subjective, reflect such a remarkable consensus. What could explain this striking result?

The authors theorize that one explanation may be an evolved predisposition toward these shared intuitions of justice, arising from the advantages that they provided, including stability, predictability, and the facilitation of beneficial exchange-the cornerstones to cooperative action and its accompanying survival benefits. Recent studies in animal behavior and brain science are consistent with this hypothesis, suggesting that moral judgment not only has biological underpinnings, but also reflects the effects of evolutionary processes on the distinctly human mind. Similarly, the child development literature provides evidence of predictable stages in the development of moral judgment within each individual, from infancy through adulthood, that are universal across all demographics and cultures.

The current evidence does not preclude alternative explanations. Shared views of justice might arise, for example, through general social learning. However, a social learning explanation faces a variety of difficulties. It assumes that individuals will adopt norms good for the group at the expense of self-interest. It assumes an undemonstrated human capacity to assess extremely complex issues, such as what will be an efficient norm. It predicts that the significant variation in circumstances among different groups would give rise to commensurately different norms and variation in the effectiveness of teaching them. It is inconsistent with the developmental data that show intuitions of justice appearing early, before social learning of such complexity is possible. And, finally, a general social learning explanation predicts views of justice as accessible, reasoned knowledge, rather than the inaccessible, intuitive knowledge that we know them commonly to be.

Whatever the correct explanation for the consensus puzzle, intuitions of justice seem to be an inherent part of being human and this, in turn, can have important implications for criminal law and criminal justice policy.

criminal law, law & society, psychology, empirical evidence, moral blameworthiness, biological underpinnings, evolutionary processes, development of moral judgment, views of justice, intuition

Abstract:
Does criminal law deter? Given available behavioral science data, the short answer is: generally, no. The behavioral sciences increasingly call into question the assumption of criminal law's ex ante influence on conduct. Potential offenders commonly do not know the legal rules, either directly or indirectly, even those rules that have been explicitly formulated to produce a behavioral effect. Even if they know the rules, the cost-benefit analysis potential offenders perceive - which is the only cost-benefit analysis that matters - commonly leads to a conclusion suggesting violation rather than compliance, either because the perceived likelihood of punishment is so small, or because it is so distant as to be highly discounted, or for a variety of other or a combination of reasons. And, even if they know the legal rules and perceive a cost-benefit analysis that urges compliance, potential offenders commonly cannot or will not bring such knowledge to bear to guide their conduct in their own best interests, such failure stemming from a variety of social, situational, or chemical influences. Even if no one of these three hurdles is fatal to law's behavioral influence, their cumulative effect typically is.

Deterrence, punishment, social science

Abstract:
This is an edited transcript of Crafting a Scholarly Persona, the Scholarship Section's program from the AALS Annual Meeting in 2007. During this program, three established scholars, Ian Ayres, Paul Robinson, and Carol Sanger, discussed their individual career paths - How they chose their article topics, what the goals of their scholarship are, how they view their research agendas, etc. The discussion was intended roughly to mirror Bravo's Inside the Actor's Studio.

scholarship, research agenda

Abstract:
For the past several decades, the deterrence of crime has been a centerpiece of criminal law reform. Law-givers have sought to optimize the control of crime by devising a penalty-setting system that assigns criminal punishments of a magnitude sufficient to deter a thinking individual from committing a crime. Although this seems initially an intuitively compelling strategy, we are going to suggest that is a poor one; poor for two reasons. First, its effectiveness rests on a set of assumptions that on examination cannot be sustained. Second, the attempt to employ the strategy generates a good many crimogenic costs that are hidden if one is functioning within a deterrence paradigm.

Experience has taught us to be precise about exactly what we are saying about the effectiveness of a deterrence strategy. There seems little doubt that having a criminal justice system that punishes violators, as every organized society has, does have an general effect in influencing the conduct of potential offenders. This we concede: Having a punishment system does deter. But there is growing evidence to suggest skepticism about the criminal law's deterrent effect - that is, skepticism about the ability to deter crime through the manipulation of criminal law rules and penalties. The general existence of the system may well deter prohibited conduct but the formulation of criminal law rules within the system according to a deterrence-optimizing analysis may have a limited effect or even no effect beyond the system's broad deterrent warning that has already been achieved. We will suggest that it may be true that criminal law manipulation can influence behavior, but the conditions under which this can happen are unusual, rather than typical, in criminal justice systems of modern societies. By contrast, criminal law makers and adjudicators formulate and apply criminal law rules on the assumption that they always influence conduct. And it is this taken-for-granted assumption that we find so disturbing and so dangerous.

criminal law, deterrence, punishment theory, punishment

Abstract:
This paper suggests how the information age might produce high capture and conviction rates and speculates on the effect of such developments on the criminal justice system's punishment theory. The low rate at which offenders presently are punished makes a deterrent threat of official sanction of limited effect. With a high punishment rate, however, a distribution of liability and punishment based upon a deterrence principle might, for the first time, make sense. On the other hand, the greater deterrent effect might eliminate crime as a serious social concern. And, without the pressure of a serious crime problem, the theory for distributing punishment might revert to distribution based upon community notions of desert, with social science research suggests is the lay person's default distributive principle. (Even a desert distribution of punishment would convey a strong deterrent in a world of high conviction rates.) In other words, the success of deterrence might paradoxically pave the way for its demise and for the domination of desert as the operating theory for the distribution of punishment.

criminal justice criminal law, punishment theory, desert, deterrence

Abstract:
Mens Rea, or "guilty mind," marks a central distinguishing feature of criminal law. An injury caused without mens rea might be grounds for civil liability but typically not for criminal. Criminal liability requires not only causing a prohibited harm or evil - the "actus reus" of an offense - but also a particular state of mind with regard to causing that harm or evil. For a phrase so central to criminal law, "mens rea" suffers from a surprising degree of confusion in its meaning.

mens rea, guilty mind, criminal

Abstract:
Recent social science research suggests that many if not most judgments about criminal liability and punishment for serious wrongdoing are intuitional rather than reasoned. Further, such intuitions of justice are nuanced and widely shared, even though they concern matters that seem quite complex and subjective. While people may debate the source of these intuitions, it seems clear that, whatever their source, it must be one that is insulated from the influence of much of human experience because, if it were not, one would see differences in intuitions reflecting the vast differences in human existence across demographics and societies.

This article explores the serious implications of this reality for criminal law and criminal policy. For example, it may be unrealistic to expect the government to reeducate people away from their unhealthy interest in punishing serious wrongdoing, as is urged by some reformer, for it seems unlikely that the shared intuition that serious wrongdoing should be punished can be changed through social engineering, at least not through methods short of coercive indoctrination that liberal democracies would find unacceptable. Second, a criminal justice system that adopts rules that predictably and regularly fail to do justice or that regularly do injustice, will inevitably be widely seen as failing in a mission thought important by the community, even foundational, unless the system's unjust operation can be hidden, something that would be hard to do without breaching notions of press freedom and government transparency to which liberal democracies aspire. Finally, an understanding of the nature of people's intuitions of justice can provide more effective strategies for changing them. For example, it appears that legal and social reformers would do better not to fight people's shared intuitions of justice but rather to harness them in service of their reform programs.

criminal law and procedure, criminal liability, criminal punishment, social engineering, coercive indoctrination, government transparency, justice reform

Abstract:
The United Nations Development Program and the Republic of the Maldives, a small Muslim country with a constitutional democracy, commissioned this project to craft the country's first system of codified penal law and sentencing guidelines. This Article describes the special challenges and opportunities encountered while drafting a penal code based on Shari'a (Islamic law). On the one hand, such comprehensive codification is more important and more likely to bring dramatic improvements in the quality of justice than in many other societies, due in large part to the problems of assuring fair notice and fair adjudication in the uncodified Shari'a-based system in present use. On the other hand, the challenges of such a project are greater, due in part to special needs for clarity and simplicity that arise from the relative lack of codification experience and training. But there turned out to be perhaps unexpected advantages to undertaking a comprehensive codification project in the Maldives. While the lack of a codification tradition created difficulties, it also gave drafters the freedom to invent new codification forms that would be difficult to adopt in a society with an entrenched codification history.

While it was a concern that any Shari'a-based code could conflict with international norms, in practice it became apparent that the conflict was not as great as many would expect. Opportunities for accommodation were available, sometimes through interesting approaches by which the spirit of the Shari'a rule could be maintained without violating international norms. In the end, this Shari'a-based penal code drafting project yielded a Draft Code that can bring greater justice to Maldivians and also provide a useful starting point for modern penal code drafting in other Muslim countries.

However, the code drafting project also may have much to offer penal code reform in non-Muslim countries, for the structure and drafting forms invented here often solve problems that plague most penal codes, even codes of modern format such as those based upon the American Law Institute's Model Penal Code, which served as the model for most American penal codes. The challenges of accessible language and format, troublesome ambiguous acquittals, overlapping offenses, combination offenses, and penal code-integrated sentencing guidelines have all been addressed.

Islamic Model Penal Code, Shari'a, United Nations Development Program, Republic of the Maldives, codified penal law, sentencing guidelines, international norms, Muslim, drafting, criminal law and procedure

Abstract:
This brief essay reviews the contributions that social psychology is making the debate among criminal law theorists on the proper principle for the distribution of criminal liability and punishment. Included is a discussion of suggestions that deterrence may be ineffective as a distributive principle, that incapacitation of dangerous persons may be effective but might be more effective if pursued through a detention system distinct from the criminal justice system, and that desert as a distributive principle, ironically, might be the most effective for controlling crime.

psychology, criminal liability, punishment, deterrence, distributive principle, incapacitation of dangerous persons, desert, crime control

Abstract:
The criminal justice system has traditionally been seen as in the business of doing justice: punishing offenders for crimes committed. Yet, the past decade has brought a shift from punishing past crimes to preventing future crimes through the incarceration and control of dangerous offenders. Habitual offender statutes, like three strikes laws, sentence repeat offenders to life imprisonment. Jurisdictional reforms lower the age at which juveniles may be tried as adults, increasing the available terms of imprisonment beyond those of juvenile court. Gang membership and recruitment are criminalized. Megan's Law statutes require community notification of a convicted sex offender. Sexual predator statutes provide for civil detention of offenders who remain dangerous at the conclusion of their criminal term. Sentencing guidelines increase the sentence of offenders who have a prior criminal history, for these offenders are seen as the most likely to commit future crimes. The shift from punishment toward prevention has not been accompanied by a corresponding change in how the system advertises itself. It still presents itself as a system of criminal justice that imposes punishment. It is impossible, of course, to punish dangerousness, within the meaning of those terms.

To punish is to cause a person to undergo pain, loss, or suffering for a crime or wrongdoing. Punishment can only exist in relation to a past harm or evil. Dangerous means likely to cause injury, pain, etc., that is, a threat of future harm. One can restrain or detain or incapacitate a dangerous person, but one cannot logically punish dangerousness.

Yet our current criminal justice system increasingly fosters ambiguity between punishment and prevention , as if one could punish dangerousness. Why the shift to preventive detention? Why the wish to keep the old criminal justice window dressing?

preventive detention, dangerousness, incapacitation, punishment

Abstract:
The article takes up the debate between utility and desert as distributive principles for criminal liability and punishment and concludes that a utilitarian analysis that takes account of all costs and benefits will support the distribution of liability and punishment according to desert, or at least according to the principles of desert as perceived by the community. It reaches this conclusion after an examination of a variety of recent social science data. On the one hand, it finds the traditional utilitarian theories of deterrence, incapacitation, and rehabilitation to have little effect in many instances. It finds instead that the real power to gain compliance with society's rules of prescribed conduct lies not in the threat or reality of official criminal sanction, but in the power of the intertwined forces of social and individual moral control. The networks of interpersonal relationships in which people find themselves, the social norms and prohibitions shared among those relationships and transmitted through those social networks, and the internalized representations of those norms and moral precepts are what cause people to obey the law. The law is not irrelevant to these social and personal forces. Criminal law, in particular, plays a central role in creating and maintaining the social consensus necessary for sustaining moral norms. In fact, in a society as diverse as ours, the criminal law may be the only society-wide mechanism that transcends cultural and ethnic differences. Thus, the criminal law's most important real world effect may be its ability to assist in the building, shaping, and maintaining of these norms and moral principles. It can contribute to and harness the compliance-producing power of interpersonal relationships and personal morality. The criminal law can have a second effect in gaining compliance with its commands. If it earns a reputation as a reliable statement of what the community, given sufficient information and time to reflect, would perceive as condemnable, people are more likely to defer to its commands as morally authoritative and as appropriate to follow in those borderline cases where the propriety of certain conduct is unsettled or ambiguous in the mind of the actor. The extent of the criminal law's effectiveness in both these respects - in facilitating and communicating societal consensus on what is and is not condemnable, and in gaining compliance in borderline cases through deference to its moral authority - is to a great extent dependent on the degree of moral credibility that the criminal law has achieved in the minds of the citizens governed by it. Thus, the criminal law's moral credibility is essential to effective crime control, and is enhanced if the distribution of criminal liability is perceived as doing justice, that is, if it assigns liability and punishment in ways that the community perceives as consistent with the community's principles of appropriate liability and punishment. Conversely, the system's moral credibility, and therefore its crime control effectiveness, is undermined by a distribution of liability that deviates from community perceptions of just desert.

desert, punishment

Abstract:
The common wisdom among criminal law theorists and policy makers is that the notion of desert is vague and the subject to wide disagreement. Yet the empirical evidence in available studies, including new studies reported here, paints a dramatically different picture. While moral philosophers may disagree on some aspects of moral blameworthiness, people's intuitions of justice are commonly specific, nuanced, and widely shared. Indeed, with regard to the core harms and evils to which criminal law addresses itself - physical aggression, takings without consent, and deception in transactions - people's shared intuitions cut across demographics and cultures. The findings raise interesting questions - such as, what could explain this striking result? - and hint at intriguing implications for criminal law and criminal justice policy.

desert, blame, empirical studies, moral philosophy, intuitions, psychology, criminal justice policy, criminal law

Abstract:
Unlike many aspects of the criminal law, defenses have not yet been the subject of comprehensive conceptual analysis. The general nature and scope of most defenses have been perpetuated for centuries with little or no question. Current debates commonly focus on whether a particular defense should apply in a particular circumstance, but rarely consider the larger perspective. How do circumstances covered by one defense compare with those of other defenses? Do defenses overlap? If so, will the outcome in identical situations vary with the defense asserted? Should it? Are there gaps between defenses, that is, circumstances in which our common sense of justice suggests that the defendant should be exculpated, yet where no defense applies? Do defenses based on theoretically analogous grounds of exculpation generate analogous results? The general inquiry, which seems never to have been undertaken, is: how does the collection of recognized defenses operate as a system?


In sharp contrast to this neglect of defenses, the American criminal law community has examined in detail the full range of offenses and their interrelation. Led by the drafters of the Model Penal Code, states have during the past two decades adopted modern criminal codes that replace a confusing and inconsistent collection of offenses with a thoughtfully organized system. The jumble of offenses in older codes was commonly drafted ad hoc, in response to one highly publicized incident or one anti-crime crusade after another. Modern codes, in contrast, define and arrange all offenses according to a single definitional scheme based on the central elements of the offense: the nature of the interest injured, the extent of the injury, and the culpability of the offender. The result is a significant consolidation of related offenses, few overlaps, few gaps, and a consistency in the organization of offenses that permits the comparisons and classifications necessary for a fair sentencing system.

There are, no doubt, many people who believe that defenses defy such systemization. Defenses, it might be argued, are the embodiment of such complex human notions of fairness and morality, tempered by the demands of utility and efficiency, that they are too complex and perhaps too illogical to be reduced to an integrated, comprehensive, and internally consistent system of exculpation. This may well be true, but the complexity and perhaps irrationality of human judgments have not deterred us in other instances, especially in the law, from attempting to devise a principled system that attempts to approximate such judgments. Advances in the behavioral sciences have repeatedly demonstrated that some systemization of human thought is possible, even though it may have absolute limits. While we may not be able to reduce our feelings about exculpation to a precise final form, the level of sophistication in examining, understanding, and setting down the most fundamental principles seems to have fallen far behind our attempts to explicate our notions of justice in other legal areas, including criminal justice matters such as offense definition and procedural fairness.

This Article attempts to provide some measure of conceptual organization for criminal law defenses that may foster a more refined system of defenses analogous to the system of offenses and offense definition embodied in most modern criminal codes. Part I of the Article describes a general conceptual framework for such a system; part II discusses the practical implications of the framework.

Criminal law, defense

Abstract:
Many criminal lawyers, judges, and professors see the distinction between actus reus and mens rea as one of the more basic of criminal law. Along with the offense-defense distinction, it helps us organize the way we conceptualize and analyze liability. It is said to be the corner-stone of discussion on the nature of criminal liability. The concepts of actus reus and mens rea have justified themselves by their usefulness.

I will argue that this most basic organizing distinction is not coherent. Rather than being useful to criminal law theory, it is harmful because it creates ambiguity in discourse and hides important doctrinal differences of which criminal law should take account. I suggest that we abandon the distinction in favor of other conceptualizations.

criminal, actus reus, mens rea criminal liability

Abstract:
The dispute over the role desert should play, if any, in assessing criminal liability and punishment has a long and turbulent history. There is some indication that deserved punishment - referred to variously as desert, just punishment, retributive punishment, or simply doing justice - may be in ascendance, both in academic debate and in real world institutions. A number of modern sentencing guidelines have adopted it as their distributive principle. Desert is increasingly given deference in the purposes section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code's provisions. Indeed, a recent committee of the American Law Institute proposed revising the Model Penal Code's purposes section to adopt desert as the dominant distributive principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court's enthroning retributivism as the primary justification for the death penalty.

But there remains a good deal of controversy over the reliance upon desert. It is strenuously argued by some that desert is inappropriate as a distributive principle because it is mean-spirited and harsh, because it has an unhealthy preference for prison, because it is based upon only vague notions that at most mark punishment extremes to be avoided, because people are in hopeless disagreement about what it requires, because it fails to avoid avoidable crime, because it is immoral, and because it is impractical to implement.

This Article argues that many of these objections are valid, at least when applied to some conceptions of desert, but that there are at least three distinct conceptions of desert to be found in the current debates, typically without distinction being made between them. The three include what might be called vengeful desert, deontological desert, and empirical desert. Each of the offered criticisms of desert is a fair objection to one of these conceptions of desert but often an unfair objection to another. Thus, an accurate assessment of desert as a distributive principle requires that these three conceptions of desert be distinguished from one another, and that the strengths and weaknesses of each conception be judged on its own.

criminal law and procedure, jurisprudence, public law and legal theory, desert, vengeful, deontological, empirical, distributive principle, punishment, retribution, sentencing, immoral, morality

Abstract:
This paper argues that the criminal justice system is increasingly shifting its focus away from desert - moral blameworthiness - as its principle for distributing criminal liability and punishment, and toward incapacitation of dangerous persons. Despite the shift, however, the system has continued to advertise itself as being one of doing justice. There are good reasons why the system should want to cloak what is essentially preventive detention as deserved punishment. The paper argues, however, that such cloaking is bad both for the system's ability to do justice and for its ability to provide community protection. The present mixed criminal justice system is sufficiently flawed, it argues, that both community and detainees would be better off with a separate civil system that openly provides preventive detention, leaving the criminal justice system to be guided by an offender's desert, not dangerousness.

punishment, preventive detention

Abstract:
The pursuit of fairness and effectiveness has inspired and guided criminal code reformers of the past two decades. Because penal law protects the most important societal interests and authorizes the most serious sanctions the government may impose - the stigma of conviction, imprisonment, and even death - a criminal code, more than any other body of law, should be rational, clear, and internally consistent. Only a precise, principled code that sufficiently defines forbidden conduct can achieve its goals of condemnation and deterrence. Such a code gives citizens fair warning of what will constitute a crime, limits governmental discretion in determining whether a particular individual has violated the criminal law, and provides the distinctions among degrees of harm and degrees of culpability that create the foundation of a fair sentencing system.

American criminal law has advanced significantly towards providing such precision, clarity, and rationality, owing in large part to the Model Penal Code. The common law and older codes often defined an offense to require only a single mental state. Under this offense analysis, one spoke of intentional offenses, reckless offenses, and negligent offenses. The general culpability provisions of the Model Penal Code, in contrast, recognize that a single offense definition may require a different culpable state of mind for each objective element of the offense.

The majority of American jurisdictions have adopted criminal codes that incorporate this Model Penal Code innovation by requiring courts to apply an element analysis to each offense and theory of liability. Indeed, element analysis may have constitutional significance. Mullaney v. Wilbur, Patterson v. New York, and Jackson v. Virginia require the prosecution to carry the burden of persuasion and the burden of production for all elements of the offense. Implementation of these constitutional demands requires a full and accurate description of all elements.

Despite the importance of the Model Penal Code for precision and clarity in criminal law codification, its overwhelming adoption by the states, and its constitutional significance, neither the Model Penal Code drafters nor the legislatures and courts of jurisdictions following the Code's lead fully appreciate the dramatic nature of the Code's innovation and its far-reaching implications.

This Article seeks to illustrate the importance of the Model Penal Code's element analysis concept to a rational, clear, and just system of criminal law. It points out the vestiges of offense analysis remaining in the Code and demonstrates how these remnants produce ambiguities in the formulation of offense definitions and in the major doctrines of inculpation. It aims to bring the promise of element analysis to fruition. After a brief review in Part I of the theoretical developments leading to this concept, Part II examines the Model Penal Code provisions that commit the Code to element analysis. Part III summarizes the virtues of such an approach. The Code's implementation of element analysis is, however, defective in many respects. Close scrutiny reveals it to be unworkable in some instances and altogether ignored by courts in others. But these criticisms, described in Part IV, are not meant to impugn the genius of the initial thought. It is the concept of element analysis that facilitates the criticism. Part V proposes a specific culpability scheme for defining offenses and suggests reformulations of the major doctrines of inculpation. These proposals demonstrate the full potential of the concept of element analysis.

Penal law, punishment, sanctions, criminal code, Model Penal Code

Abstract:
What motivates a person's desire to punish actors who commit intentional, counternormative harms? Two possible answers are a just deserts motive or a desire to incarcerate the actor so that he cannot be a further danger to society. Research participants in two experiments assigned punishments to actors whose offenses were varied with respect to the moral seriousness of the offense and the likelihood that the perpetrator would commit similar future offenses. Respondents increased the punishment as the seriousness of the offense increased, but their sentences were not affected by variations in the likelihood of committing future offenses, suggesting that just deserts was the primary sentencing motive. Only in a case in which a brain tumor was identified as the cause of an actor's violent action, a case that does not fit the standard prototype of a crime intentionally committed, did respondents show a desire to incarcerate the actor in order to prevent future harms rather than assigning a just deserts based punishment.

Desert, punishment, incapacitation

Abstract:
The article identifies a pattern of doctrinal shift from common law criminal law to modern criminal codes and uses social science methodology to determine whether the shift is one that reflects changing community views of what ought to constitute criminality. The study finds that the objectivist-subjectivist distinction that it defines does indeed capture a distinction important to lay perceptions of criminality, but that lay perceptions have not shifted from the objectivist view of common law to the subjectivist view of modern codes, as the law and many commentators suggest. Rather, the study results suggest that lay persons agree with the subjectivist view of modern codes in defining the minimum requirements of criminality, but prefer the common law's objectivist view of grading the punishment deserved for a violation. We argue that there is practical value in having the criminal law track shared community intuitions of the proper rules for assigning liability and punishment. For that reason, the study results support the often criticized subjectivist view of modern codes in setting the minimum requirements of liability, but disapprove of the modern code shift away from the common law's objectivist view of grading. Beyond its conclusion's implications for future criminal code reform, the study suggests that social science research, properly done and carefully focused, can help resolve criminal law theory debates that rest in whole or in part on claims of what people see as just punishment.

Abstract:
This paper develops and attempts to justify criteria for judging the quality of a criminal code in performing its functions. It translates the abstract criteria into a workable code evaluation scheme, then applies the scheme to the fifty-two American criminal codes, ending with a ranking of those codes. Examples of good and bad code provisions are used in the discussion to illustrate the evaluation criteria.

criminal code

Abstract:
This conference and symposium are important for their ability to make better known the great benefits in the use of restorative processes. Below I try to summarize some of the many promising achievements of those processes, by which I mean to include such practices as victim-offender mediation, sentencing circles, and family group conferences to name just the most common. While many people refer to such processes by the name Restorative Justice, that term and its originators in fact have a more ambitious agenda than simply encouraging the use of such restorative processes. But that agenda is not one that the front-line practitioners of restorative processes necessarily share. It is primarily an anti-justice agenda, which prompts impassioned opposition to restorative processes. In this brief essay I try to explain why this is so and why it need not be so. I'll argue that restorative processes can and should be used more widely in ways entirely consistent with doing justice, and that the best thing for the restorative processes movement would be to publicly disavow the anti-justice agenda of the Restorative Justice movement.

restorative justice, vicim offender mediation, criminal law, punishment

Abstract:
The criminal law has three primary functions. First, it must define and announce the conduct that is prohibited (or required) by the criminal law. Such rules of conduct, as they have been called, provide ex ante direction to members of the community as to the conduct that must be avoided (or that must be performed) upon pain of criminal sanction. This may be termed the rule articulation function of the doctrine. When a violation of the rules of conduct occurs, the criminal law takes on a different role. It must decide whether the violation merits criminal liability. This second function, setting the minimum conditions for liability, marks the shift from prohibition to adjudication. It typically assesses ex post whether the violation is sufficiently blameworthy to warrant the condemnation of conviction. Finally, where liability is to be imposed, criminal law doctrine must assess the relative seriousness of the offense, usually a function of the relative blameworthiness of the offender. This sets, in a general sense, the amount of punishment that is to be imposed. While the first step in the adjudication process, the liability function, requires a simple yes or no decision as to whether the minimum conditions for liability are satisfied, this second step, the grading function, requires judgments of degree. It must consider such factors as the relative harmfulness of the violation and the level of culpability of the actor.

This Article argues that these three primary functions of criminal law - rule articulation, liability assignment, and grading - are a useful way in which to analyze and organize criminal law doctrine. Modern criminal codes commonly acknowledge that criminal law serves each of these three functions. However, these same codes fail to see that a given code provision may serve one function but not another; the entire undifferentiated code is seen as serving these functions together.

Criminal law, criminal code, criminal liability

Abstract:
Criminal liability for an omission is imposed in two distinct situations.

First, such liability is often imposed explicitly in offense definitions that punish a failure to perform certain conduct. For example, it is an offense to fail to file a tax return. Second, it is also common for a general provision, apart from an offense definition, to create omission liability for an offense defined in commission terms. Parents, for example, are generally given the legal duty to care for their children. A parent may be held liable for criminal homicide, then, where death results from a failure to perform this duty, even though the homicide offense is defined in terms of commission. Section I gives examples of the first basis for omission liability; section II discusses the second.

criminal liability, omission liability

Abstract:
In an article 20 years ago (A Theory of Justification: Societal Harm as a Prerequisite to Criminal Liability), Robinson argued that justification defenses are best conceptualized and formulated objectively, as focusing on the nature of the actor's deeds. (George Fletcher wrote a critical response, The Right Deed for the Wrong Reason: A Reply to Mr. Robinson). In the two decades since, many if not most writers on the subject have disagreed with Robinson's position. And nearly all formulations of justification defenses in current American criminal codes use subjective formulations, which focus instead on the actor's reasons for acting. They give a justification defense if and only if, at the time of the conduct, the actor believes the conduct is justified. In this article, Robinson reaffirms his support for an objective formulation of justification and offers his first response to critics and defense of his original claim. His claim has two practical implications for liability. First, Robinson argues that a mistaken belief that one's conduct is justified ought to result in an excuse defense, not the justification defense that the subjective formulation would give. The article explains the important implications of that distinction. Second, Robinson argues that the unknowingly justified actor ought to retain a justification defense; the subjective formulation would take the defense away. (If the jurisdiction punishes impossible attempts--where an offense has occurred only in the actor's mind, only from the actor's mistaken view of the circumstances -- then the unknowingly justified actor would be liable for such an impossible attempt.)Robinson argues that the objective view is superior for several reasons: first, it generates liability results that are more just and that better match our collective intuitions of what is just. Second, even if the competing theories generated identical liability results, the objective deeds conceptualisation is superior because it lays bare the distinctions that are relevant to determining liability in these cases, while the subjective reasons theory obscures those distinctions. Finally, the deeds theory of justification improves the criminal law's rule-articulation function. That is, it allows the law to better communicate to the public the conduct rules that it commands they follow.

justification, punishment

Abstract:
The criminal law codification movement of the 1960's and 70's was guided by instrumentalist principles designed to reduce crime, rather than retributivist notions of giving offenders deserved punishment. The Model Penal Code, which served as a model for nearly all of the period's code reforms, was explicit on the point: The Code's dominant theme is the prevention of offenses and its major goal is to forbid and prevent conduct that threatens substantial harm . . . . Yet, as Part I of this article shows, even from such a staunchly instrumentalist code came a criminal law that defers to lay persons' shared intuitions of justice on a vast number of issues touching essentially all criminal cases. Why should this be so? Lay intuitions of justice hardly produce a distribution of criminal liability that maximizes deterrence, incapacitation, or rehabilitation, the traditional crime control mechanisms. In fact, as Part I makes clear, reliance upon lay intuitions of justice commonly undermines the operation of these mechanisms. Why, then, should modern American code drafters follow an unspoken principle of heeding lay intuitions of justice? One explanation is that the drafters have an unexposed retributivist streak, that they have retained the natural impulse of most lay persons to think of criminal liability in terms of desert. If this were the case, the drafters' focus on instrumentalist arguments in explaining and justifying their code provisions would seem less than forthright. But there is another explanation, in which the drafters' concern for lay intuitions of justice is justified by an instrumentalist rather than retributivist rationale: They may have believed that effective crime control requires a criminal code that is seen as adhering to the community's shared perceptions of just desert. While the Model Penal Code drafters offer no defense of this position -- indeed, the principle itself is unarticulated by the drafters, even as they seem to follow it -- Parts III and IV offer arguments in its support. It is argued there that the perception of a criminal code as doing justice is necessary for the code's moral credibility, which in turn is necessary for the effective crime control that the drafters seek. It is necessary because the extent of criminal law's moral authority determines the extent of its ability to influence people's conduct through normative forces and to shape community norms.

Such use of a criminal code's normative powers represents a qualitatively different crime control strategy than the traditional mechanisms of deterrence, incapacitation, and rehabilitation. The latter might be called coercive crime control. They seek to prevent criminal conduct through coercive official action, most commonly in the form of threat or restraint.

The crime control power of criminal law's moral credibility works in a different way. The normative crime control mechanism, as it might be called, does not shape desires by threat of official sanction, as deterrence does, or through a coercive regime of official therapy or treatment, as traditional rehabilitation does. Nor does it simply give up on altering desire and simply detain, incapacitate. Instead, it works through unofficial avenues to bring the potential offender to see the prohibited conduct as unattractive because inconsistent with the norms of family or friends and, ultimately, unattractive because inconsistent with the person's own internalized sense of what is acceptable. Not every potential offender is amenable to this normative pressure, but many if not most non-offenders may be non-offenders because of it. Thus, code drafters must worry not only about controlling the hardest core amorals among us but also must maintain the criminal law's influence in keeping law-abiding that vast proportion of the population for which normative crime control is important, perhaps more important than the coercive. The end result of such concerns for law makers, as we shall see, is a system that may be highly instrumentalist in orientation but does not stray far from lay intuitions of justice. And, when it does stray, it does so in a way that obscures the deviation. The proposed answer to the title question, then, is that the criminal law, even a highly instrumentalist one, cares about lay persons' intuitions of justice because criminal law's power to influence conduct may reside in large part in its normative rather than its coercive crime control mechanisms, and effective normative crime control requires a criminal law that has moral credibility within the community it governs. The article is being prepared for an Olin conference at the University of Virginia Law School in February, 2000, on the role of law in shaping social norms.

crime control, community, justice

Abstract:
This article considers the transition from the early Anglo-Saxon scheme, which distinguished only willful and accidental conduct, to the current five-tiered system. To appreciate the historical evidence, the specific nature of the culpability distinctions set out in the Model Penal Code will be examined.

criminal code, history, Model Penal Code, Anglo-Saxon code

Abstract:
Under existing American law, advances in non-lethal weapons increasingly make the use of firearms for defense unlawful and the Second Amendment of little practical significance. As the effectiveness and availability of less lethal weapons increase, the choice of a lethal firearm for protection is a choice to use more force than is necessary, in violation of existing self-defense law. At the same time, a shift to non-lethal weapons increases the frequency of situations in which a person's use of force is authorized because defenders with non-lethal weapons are freed from the special proportionality requirements that limit the use of deadly force.

self-defense, non-lethal weapons, criminal law

Abstract:
Desert appears to be in ascendance as a distributive principle for criminal liability and punishment but there is confusion as to whether it is a deontological or an empirical conception of desert that is or should be promoted. Each offers a distinct advantage over the other. Deontological desert can transcend community, situation, and time to give a conception of justice that can be relied upon to reveal errors in popular notions of justice. On the other hand, empirical desert can be more easily operationalized than can deontological desert because, contrary to common wisdom, there is a good deal of agreement as to its meaning. But empirical desert fails to provide the transcendent foundation that deontological desert can provide; empirical desert can tell only us what people believe is just not what actually is just.

What role do moral philosophers play in the competition between deontological and empirical desert? One might assume them to be on the deontological side, facing the research social psychologists who are mapping shared intuitions of justice for empirical desert. But the situation is more complex. Moral philosophy has come to rely heavily upon intuitions of justice in its analytic methods, which both helps and hurts its usefulness. The moral philosophy literature today is the richest available source of intuitions of justice, which any serious research scientist ought to use as a starting point in mapping intuitions. But moral philosophers' reliance on intuitions can undermine their ability to produce a deontological conception of desert that transcends the popular view and that can be relied upon to tell us when shared intuitions of justice are wrong.

Criminal Law, Jurisprudence, Moral Philosophers, Philosophy, Desert, Distributive Principle, Deontological, Empirical, Intuitions of Justice

Abstract:
This commentary summarizes some of the institutional obstacles to serious reform the authors encountered in their work on two recent criminal-code redrafting efforts, in Illinois and Kentucky. The authors call for a project to create a Model Penal Code Second, in the hope that such a centralized, high-profile, and less directly politically charged or biased effort would be an effective spur to major reform at the state level.

crime, Model Penal Code

Abstract:
We distinguish our form of government and our legal system from others by our commitment to the rule of law. In the criminal law, in particular, this commitment is aggressively enforced through a series of doctrines that taken together demand a prior legislative enactment of a prohibition expressed with precision and clarity, traditionally bannered as the legality principle. But it is argued in this article that the traditional legality principle analysis conflates two distinct issues: one relating to the ex ante need for fair notice, the other to the ex post concern for fair adjudication. There are in fact two different kinds of legality - rules legality and adjudication legality - that suggest different, and sometimes conflicting, conclusions about the proper formulation and application of the legality doctrines. The criminal law would be better served, it is argued, by giving these two principles independent recognition and application.

Several rationales are offered in support of the traditional legality principle: providing fair notice, gaining compliance with criminal law rules, including effective deterrence and avoiding over-deterrence (chilling effect), reserving the criminalization authority to the legislature, increasing uniformity in application, and reducing the potential for abuse of discretion. What has not been previously understood is that the first three rationales address how the criminal law should perform its ex ante function of announcing the rules of conduct, a function that is carried out primarily by the objective requirements of offenses definitions and by justification defenses. And the last three address how the criminal law should perform its ex post function of adjudicating a violation of the rules of conduct, a function that is carried out primarily by the culpability requirements of offenses definitions and by excuse defenses.

Thus, to effectively further the rationales of legality, the criminal law should recognize two principles - rules legality and adjudication legality - and should apply each of the six legality doctrines differently according to that function of the criminal law being performed by the criminal law rule to which it is being applied. A failure to adjust application of legality doctrines according to the function of the criminal law rule to which they are being applied, as is common in some aspects of current law, undermines the success of the purposes we seek to advance by our commitment to legality.

criminal law, legality, vagueness, discretion, fair notice, strict construction, ex post facto

Abstract:
Blackmail, a wonderfully curious offense, is the favorite of clever criminal law theorists. It criminalizes the threat to do something that would not be criminal if one did it. There exists a rich literature on the issue, with many prominent legal scholars offering their accounts. Each theorist has his own explanation as to why the blackmail offense exists. Most theories seek to justify the position that blackmail is a moral wrong and claim to offer an account that reflects widely shared moral intuitions. But the theories make widely varying assertions about what those shared intuitions are, while also lacking any evidence to support the assertions.

This Article summarizes the results of an empirical study designed to test the competing theories of blackmail to see which best accords with prevailing sentiment. Using a variety of scenarios designed to isolate and test the various criteria different theorists have put forth as “the” key to blackmail, this study reveals which (if any) of the various theories of blackmail proposed to date truly reflects laypeople’s moral judgment.

Blackmail is not only a common subject of scholarly theorizing, but also a common object of criminal prohibition. Every American jurisdiction criminalizes blackmail, although there is considerable variation in its formulation. The Article reviews the American statutes and describes the three general approaches these provisions reflect. The empirical study of lay intuitions also allows an assessment of which of these statutory approaches (if any) captures the community’s views, thereby illuminating the extent to which existing law generates results that resonate with, or deviate from, popular moral sentiment.

The analyses provide an opportunity to critique the existing theories of blackmail and to suggest a refined theory that best expresses lay intuitions. The present project also reveals the substantial conflict between community views and much existing legislation, indicating recommendations for legislative reform. Finally, the Article suggests lessons that such studies and their analyses offer for criminal law and theory.

blackmail, extortion, coercion, criminal law theory, social science research, wrongful intention, breach of duty, domination, usurping authority, efficient information allocation, state criminal codes, scenario research

Abstract:
It has long been assumed that the goals of doing justice and fighting crime necessarily conflict. Retributivists and utilitarian crime-control advocates commonly see their dispute as irreconcilable, and in a sense it is. It is argued here, however, that in another sense these two fundamental aims of criminal justice may not conflict. Doing justice may be the most effective means of fighting crime.

The extent of the criminal law's effectiveness in avoiding resistance and subversion of an unjust system, in bringing the power of stigmatization to bear, in facilitating, communicating, and maintaining societal consensus on what is and is not condemnable, and in gaining compliance in borderline cases through deference to its moral authority is to a great extent dependent on the degree to which the criminal law has earned moral credibility with the citizens governed by it. Thus, the criminal law's moral credibility is essential to effective crime control, and is enhanced if the distribution of criminal liability is perceived as "doing justice," that is, if it assigns liability and punishment in ways that the community perceives as consistent with their shared intuitions of justice. Conversely, the system's moral credibility, and therefore its crime control effectiveness, is undermined by a distribution of liability that deviates from community perceptions of just desert.

The hitch is that it is not moral philosophy's deontological notion of justice that has crime-control power but rather the community's notion of justice, what has been called "empirical desert." This turns out to be both good and bad for constructing a distributive principle for criminal liability and punishment. On the one hand, unlike moral philosophy's deontological desert, empirical desert can be readily operationalized - its rules and principles can be authoritatively determined through social science research into peoples' shared intuitions of justice. On the other hand, people's shared intuitions about justice are not justice, in a transcendent sense. People's shared intuitions can be wrong. In the end, however, the retributivist may find that an instrumentalist distributive principle of empirical desert will produce far more deontological desert than any other workable principle that could or would be adopted.

This short essay is a core text for the Criminal Law Conversations project. Comments on it and author responses to the comments are available on the project's website.

Criminal law, doing justice, crime fighting, moral credibility, intuitions of justice, just desert, distributive justice, retributivism, retribution, deontological desert

Abstract:
Earlier this year, an addict named Ashkenazi spotted an unattended backpack on a busy beach north of Tel Aviv, Israel. He seized the opportunity and stole the bag, taking it to a nearby abandoned house to examine his loot. What he found in the bag was a terrorist's bomb. He notified police who disarmed the bomb. Ashkenazi's conduct saved many lives, but he did not realize it at the time. Should he be criminally liable for his theft?

This article explores the theoretical dispute raised by the case: competing views on the theory of justification. A subjective, or reasons, theory looks to the actor's intent and would deny a justification defense in this case, leaving Ashkenazi liable for the theft. An objective, or deeds, theory looks to whether the actor's conduct in fact avoids a greater harm. It would give a lesser evils defense for such a theft, although the unknowingly justified actor would remain liable for attempted theft (if the jurisdiction punishes impossible attempts). Israeli law takes the objective deeds view; most (but not all) U.S. states take the subjective reasons view.

justification, criminal law

Abstract:
The victims' rights movement has come into increasing influence in setting criminal justice policy. What can be said about where its influence should be heeded, and where it should not? With regard to substantive criminal law in particular, should the victims' rights movement have influence over its formulation and adjudication? The short answer, on which I'll elaborate, is that it ought to have influence over criminal law formulation but not necessarily over criminal law adjudication. It ought to have influence over criminal law formulation because there is great benefit in formulations that track shared lay intuitions of justice, and the victims' rights movement is the dominant organization of lay persons involved in criminal justice reform. Victims' rights organizations ought to have limited influence over adjudication - and individual victims ought to have no influence - because an offender's liability and punishment ought to depend upon his blameworthiness (including, primarily, the seriousness of his offense) not on his good or bad luck as to the forgiving or vindictive nature of his victim.

criminal law, victims rights movement, punishment

Abstract:
Because they track the Model Penal Code, current criminal law formulations of risk offenses typically fail to distinguish the rule of conduct question - What risks does the criminal law prohibit? - from the adjudication question - When is a particular violator's conscious disregard of, or his inattentiveness to, a risk in a particular situation sufficiently condemnable to deserve criminal liability? Instead, the formulations address only the second question - through their definition of reckless and negligent culpability - and fail to provide a rule of conduct provision to define a prohibited risk.

This reliance upon culpability definitions as the core of risk-creation offense definitions is problematic because it fails to announce a useable conduct rule that describes those risks the law prohibits. Instead, this approach subjectivizes the definition of prohibited risks. What may be held reckless or negligent for one person may not be reckless or negligent for another person in the identical situation - an effect that strips case adjudications of their value in educating the community as to risks that the rules of conduct prohibit.

Current risk-creation offenses also are problematic because they make results - including the creation of a prohibited risk - irrelevant to criminal liability. While this is consistent with the Model Code's view that resulting harm is insignificant, that only culpable state of mind ought to affect liability, it is inconsistent with the view of most state code drafters. Thus, while the Model Code grades offenses without regard to whether a prohibited risk in fact is created, most state codes logically would want to grade lower in the absence of a prohibited risk.

These two fundamental problems - the failure to distinguish conduct rules and adjudication rules and the confusion over the significance of results - are related. The Model Penal Code's general failure to distinguish conduct and adjudication rules made it less likely that state code drafters would notice what they would have seen as the Code's inappropriate subjectivization of risk and risk offenses. If the Model Code had systematically segregated conduct and adjudication rules, it would have been more obvious to state code drafters that the Code's formulation of risk-creation offenses was one that they could not accept.

culpability

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.

criminal law, punishment theory, retribution, retributivism, desert

Abstract:
The paper criticizes criminal law scholarship for helping to construct and failing to expose analytic structures that falsely claim a higher level of rationality and coherence than current criminal law theory deserves. It offers illustrations of three such illusions of rationality. First, it is common in criminal law discourse for scholars and judges to cite any of the standard litany of "the purposes of punishment" - just deserts, deterrence, incapacitation of the dangerous, rehabilitation, and sometimes other purposes - as a justification for one or another liability rule or sentencing practice. The cited "purpose" gives the rules an aura of rationality, but one that is, in large part, illusory. Without a principle defining the interrelation of the "purposes," nearly any rule can be justified by some "purpose of punishment." Thus, a decision maker can switch among distributive principles as needed to provide an apparent rationale for whichever rule the person prefers, even if that preference is not based on rational criteria. A second example is found in a central mechanism for determining an offender's blameworthiness: the use of an individualized objective standard. The widely used mechanism avoids the problems acknowledged to attend a strictly objective standard. A person's situation and capacities are central to an assessment of whether a person can be fairly blamed for a violation, and the individualized objective standard allows the decision maker to take these into account. At the same time, the mechanism avoids reversion to a completely subjective standard, which might exempt many blameworthy cases from liability. In reality, however, the mechanism only shifts the form of the problem. Codes that use the individualized objective standard fail to provide a principle by which one can determine those characteristics of an offender with which the objective standard ought to be individualized and those with which it ought not. Without a governing principle, the issue again is left to the discretion of decision makers, with no guidance as to how that discretion is to be exercised. A final illusion obscures whether the criminal justice system is, in fact, in the business of "doing justice." The "criminal justice" system imposes "punishment" and encourages moral condemnation of those found "guilty" of "crimes." But while the system cultivates its doing-justice image, it increasingly shifts to a system of essentially preventive detention, where a violator's sanction is derived more from what is needed to incapacitate him from committing future offenses than to punish him for a past offense. There are great advantages to the deception, but also serious costs and inefficiencies. The paper discusses why some illusions are more objectionable than others and what the existence of such illusions says about modern criminal law scholarship.

Abstract:
The insanity defense generates a great deal of controversy in our society. Previous research points to a community standard regarding insanity, almost certainly one that includes a cognitive component, but one that can include other components as well. This research has generally focused on the judgement rules people articulate when making their judgments. Psychological research, however, attests to the fact that people are frequently inaccurate in their honest efforts to identify and describe major factors influencing their own judgments and decisions. To address the implicit standards people, may, in practice, apply to the insanity defense, it is necessary to induce the rules that people use from the patterning of their judgments across a series of systemtically varied case scenarios. We use this approach in the present study.

Insanity, community standards

Abstract:
Professor Paul Robinson comments on Professor Fletcher's book, A Crime of Self-Defense: Bernhard Goetz and the Law on Trial.

Justification, criminal law, Bernhard Goetz

Abstract:
Most criminal codes, and most criminal law courses, begin with the 'familiar litany' of the purposes of criminal law sanctions - just punishment, deterrence, incapacitation of the dangerous, and rehabilitation. We train and direct our lawyers, judges, and legislators to use these purposes as guiding principles for the distribution of criminal sanctions. The purposes are thus to guide both the drafting and interpretation of criminal statutes and the imposition of criminal sentences in individual cases.

The purposes frequently conflict, however, as part I will demonstrate. Conflicts arise because each purpose requires consideration of different criteria; in some cases, a particular fact suggests different sentences or statutory formulations under different purposes. Ultimately a choice must be made to follow one purpose at the expense of another. Yet when faced with conflicting purposes, judges, legislators, and sentencing-guideline drafters have no principle to guide that decision.

In the absence of a guiding principle, the choices made are, at best, inconsistent. For example, most state criminal codes maintain an insanity defense because it exculpates the blameless (and thus furthers just punishment), even though abolishing the defense might more effectively incapacitate the dangerous. Yet the same codes sacrifice just punishment, in favor of increasing deterrence, by recognizing strict liability. At the same time, rather than increasing the threatened sanction when the temptation or inclination is greater, as a deterrence principle suggests, these codes frequently decrease the deterrent threat - as, for example, in cases of provocation - because of the offender's reduced blameworthiness. Code drafters are choosing to further different purposes in different contexts.

At worst, the absence of a guiding principle fosters arbitrariness or prejudice. This happens when the inconsistent approach of the code drafters is followed on the level of individual sentencing decisions. For instance, while rehabilitation might be the best means of avoiding future crime by a young addict who is caught selling drugs to support his habit, a judge rationally might decide to impose a long prison term in order to further general deterrence interests. When faced with a young bank teller who embezzled money from her cash drawer, the same judge might decide to sacrifice the general deterrent value of a long prison term and put the offender on probation, under an incapacitative theory - she is no longer dangerous because she will never again be placed in a position of trust. Both of these sentences are justified by one of the purposes of sentencing, but they nonetheless may be the product of arbitrary or biased decision making. Without a principle governing when one sentencing purpose is to be followed at the expense of another, judges and guideline drafters are free to choose whatever purpose justifies the desired sentence.

Distribution, criminal sanctions, punishment

Abstract:
Typically, the set of elements defining a crime comprise what may be called the paradigm of liability for that offense: An actor is criminally liable if and only if the state proves all these elements. The paradigm of an offense, however, does not always determine criminal liability. Even where all the elements of the paradigm are proven, rules and doctrines create exceptions that affect criminal liability. Some exceptions, such as insanity, duress, and law enforcement authority, can exculpate an actor even though his conduct and state of mind satisfy the paradigm for the offense charged. Such exculpating exceptions are grouped and analyzed as defenses.

Other exceptions inculpate actors who do not satisfy the paradigm for the offense charged. Such inculpating exceptions may be termed instances of imputed elements of an offense. Some writers have suggested that the imposition of liability absent a required element of the offense is illogical, immoral, or perhaps unconstitutional. But just as there are many defenses - exceptions that exculpate despite satisfaction of the paradigm - there are also many common and well-established exceptions that inculpate despite the absence of a required element of the offense definition. If, for example, an actor causes another person to engage in illegal conduct, a required element of conduct of the offense may be properly imputed to the actor. Similarly, the requisite culpable state of mind may properly be imputed to an actor if he would have had the culpable state of mind but for his voluntary intoxication. These familiar results follow from special rules governing complicity and voluntary intoxication. Like the defenses of insanity, duress, and law enforcement authority, which also generally appear outside the definition of an offense, these rules of imputation alter the requirements for criminal liability.

Legislators could conceivably include all inculpatory exceptions to a particular paradigm within the definition of the offense. Inculpatory exceptions, however, often embody principles that are independent of any particular offense. Such general principles of inculpation provide an alternative basis for liability; they justify liability in the absence of every element of the offense. These general principles make it unnecessary to refer to the doctrines of imputation in the definition of each offense.

Recognition of the conceptually distinct group of inculpating exceptions not only reveals the functional similarity of a variety of inculpatory rules and doctrines but also raises a crucial theoretical issue in each instance of imputation. If the minimum requirements for an offense have been defined in its paradigm, why should one of these required elements be eliminated in a particular case? All instances of imputed elements, while they may be founded upon reasonable grounds for imposing liability, permit deviation from the previously defined minimum requirements for a given offense. At the very least, such deviation requires an explanation. Defenses - exceptions that redound to the defendant's benefit - are supported by well-developed and rational explanations. Can we also articulate sound theoretical and practical reasons supporting the well-established inculpating exceptions?

The rules and doctrines that impute required elements have no common name to draw them together, as do defenses, and, perhaps for this reason, have rarely been viewed as a group. Having defined instances of imputation as a conceptual group, however, one may ask whether there is an identifiable and consistent set of principles that governs the imputation of definitional elements. Are the rules governing such imputation consistent with their rationales? Do doctrines or rules with similar rationales operate in properly analogous ways to produce consistent results? These are the inquiries undertaken in this Article.

Criminal liability, impute

Abstract:
Criminal legal codes draw clear lines between permissible and illegal conduct, and the criminal justice system counts on people knowing these lines and governing their conduct accordingly. This is the ex ante function of the law; lines are drawn, and because citizens fear punishments or believe in the moral validity of the legal codes they do not cross these lines. But do people in fact know the lines that legal codes draw? The fact that several states have adopted laws that deviate from other state laws enables a field experiment to address this question. Residents (N = 203) of states (Wisconsin, Texas, North Dakota, and South Dakota) that had adopted a minority position on some aspect of criminal law reported the relevant law of their state to be no different than did citizens of majoritarian states. Path analyses using structural equation modeling suggest that people make guesses about what their state law holds by extrapolating from their personal view of whether or not the act in question ought to be criminalized.

A legal code in a complex society is designed to have several functions. First, it is designed to announce beforehand the rules by which citizens must conduct themselves, on pain of criminal punishment. Second, if a person violates one of these rules of conduct, the criminal law must determine whether the violator is to be held criminally liable. Third, another part of its adjudicatory function, where liability is imposed the law must determine the general range, or grade, of punishment to be imposed.

It is the first function that is of interest to us here, the so-called ex ante function of the criminal law. The code announces in advance what actions count as criminal; thus the citizenry can use the announcement to guide their actions to avoid criminal conduct. The law, in other words, draws bright lines between allowable and unallowable conduct, and those lines enable the citizens to regulate their conduct so they do not break the laws. To use a familiar metaphor, the criminal law specifies what sorts of actions are out of bounds, and the penalties for those actions, so the players will stay in bounds. The criminal justice system relies on people knowing the law and knowing where the boundaries for their conduct lie. Ignorance does not excuse unlawful conduct, a fact summarized in the phrase ignorance of the law is no excuse. Such a rule is defended as a useful means of creating an incentive for citizens to learn the law.

Criminal code, ex ante, criminal law

Abstract:
This essay argues that, while many restorative processes are quite valuable, there is the potential for their use to produce results that conflict with the community's shared intuitions of justice and to thereby undermine the criminal law's moral credibility. Because such moral credibility can have practical crime-control value, it ought not be undermined unless the crime-control benefits of doing so clearly outweigh the costs. In practice, it is entirely possible to rely upon restorative processes in ways that avoid injustice and that assure justice is done.

shared intuitions of justice, crime control

Abstract:
The present sentencing debate focuses on which decisionmaker is best suited to make the sentencing decision. Competing positions in this debate typically view the sentencing decision as monolithic, preferring one decisionmaker over all the others. A monolithic view of the decision unnecessarily invites poor decisionmaking. The sentencing decision is properly viewed as a series of distinct decisions, each of which can best be performed by a decisionmaker with certain qualities. This Essay demonstrates how a system of optimal decisionmaking might be constructed -by sorting out the different attributes called for by the distinct aspects of the sentencing decision and matching them to the strengths and weaknesses of each potential decisionmaker.

Sentencing

Abstract:
This article suggests ten changes that ought to be included in a reform of federal criminal law. Five of those are what would be considered basic characteristics of any modern criminal code, and are in large part the earmarks of the Model Penal Code and its progeny: a comprehensive general part, an analytic structure, fully defined offenses using defined terms, a system for the interpretation of code provisions, and a system of offenses that avoids overlaps and gaps. While the Model Penal Code made many advances, the 35 years since its promulgation have revealed shortcomings, and suggest a number of other reforms that a new federal criminal code might profitably adopt. Least controversial is fixing the revealed drafting errors of the Model Penal Code. The article gives two examples of such errors, one technical, one conceptual: failure to define the distinction among conduct, circumstance, and result elements, and confusion in the definition of causation requirements. Other proposed reforms move beyond the perspective of the Model Penal Code drafters, and take account of the last decade's movement toward greater guidance of judges' sentencing discretion. Consistent with that trend, a new code should use more grading categories, in order to have the liability determination under the criminal code more narrowly constraint the range of possible sentences at the sentencing stage. Also consistent with the recent trend, in its ideal if not its practice, is the proposal that code drafters follow an articulated distributive principle to develop statutory formulations and to define the rules by which the code provisions are to be interpreted. Still more distant from the approach of the Model Penal Code are the final two proposals. First, it is suggested that a new code be drafted in a way that avoids conflicts with the community's perceptions of desert, for this is necessary to enhance the code's moral credibility with the community it governs, which in turn is necessary to increase the code's power to gain compliance by that community. Finally, in a proposal that would make criminal codes look very different than they currently do, the article suggests that a new criminal code be drafted as two codes: one addressed to the general public defining for them ex ante the rules of lawful conduct, the other written for criminal justice adjudicators -- judges, lawyers, police officials, and juries -- that sets principles for ex post adjudication of a violation of the rules of conduct. It is only through this separation, it is argued, that codes can effectively perform both of the two central functions of a criminal code: communicating to the public ex ante the rules of lawful conduct, and defining for adjudicators the principles governing ex post adjudication of a violation.

criminal code, model penal code

Abstract:
Present criminal law theory reflects a disagreement over the underlying theory of the justificatory principle, and thus the proper legal formulation of such defenses. At the core of the debate about the principle is the following question. Are justification defenses given because the actor's deed avoids a greater harm, or because she acted for the right reason?

The deeds theory of justification justifies conduct that avoids a greater harm, because the conduct is conduct that we would be happy to tolerate under similar circumstances in the future: that is, because the actor has done the right deed. The reasons theory looks not at the deed but at the reason for the deed. The reasons theory gives a defense when a person acts for the right reason, generally trying to avoid a greater harm. The issue between the two theories concerns the focus of justification. Is the focus of justification the nature of the deed or the actor's reason for acting?

The debate to date relies in large part upon legal and philosophical arguments. But frequently a third source of authority is brought into play. Each side buttresses its arguments with claims that its theory better tracks the community intuitions, a common claim in criminal law arguments. In this article Robinson and Darley test those claims about the community's intuitions, using experimental social science research techniques designed for such inquiries.

They conclude, among other things, that lay intuitions are consistent with the deeds theory of justification and inconsistent with the reasons theory. The study also addresses a variety of other issues related to the operation of justification defenses. In a final section, the authors, discuss the implication of their findings for the formulation and grading of offenses, the formulation of defenses, and the reform of acquittal verdict forms.

justification

Abstract:
In the 1960s and 1970s, states across the country were caught up in a wave of criminal law reform unprecedented in our history. Influenced by the American Law Institute's development of the Model Penal Code, more than two-thirds of the states adopted comprehensive new criminal codes. Since that time, there has been little momentum for further development or refinement of American criminal codes. Worse, the changes of the criminal codes over the past generation have undercut, rather than built on, the useful reforms implemented earlier. The last thirty years have seen a serious and growing degradation of most criminal codes.

Part I of this article documents examples of the degradation trend and describes its harmful effects. Part II discusses the current political processes and incentives driving the derogation of criminal law. Part III discusses the structuring of future criminal code reform.

Criminal codes

Abstract:
All would agree that the criminal law seeks to prevent harmful results rather than to punish evil intent that produces no harm. If one views deterrence as the proper function of the criminal law, a harm requirement is appropriate. To the extent that the criminal law punishes nonharmful conduct, it weakens the stigma and deterrent effect of criminal conviction for harmful conduct. If a defendant who has caused no harm feels that he is punished unjustifiably, rehabilitative efforts will be hampered. Indeed, one may ask: If no harm has been caused, what harm will be deterred by punishment, and what harm-causing characteristic will be rehabilitated? If one believes that the role of the criminal law is to provide retribution, a harm requirement is also proper; in the absence of harm there is nothing for which to seek retribution. The consistency of a requirement of harm with these fundamental purposes of the criminal law is reflected in the fact that harm has, from the earliest of civilized times, been treated as a de facto requirement. If the criminal law is limited in operation to situations involving a harm of some sort, then an act found to be beneficial, or at least not harmful, should be of no concern to the criminal law.

criminal liability, harm, deterrence, retribution

Abstract:
The communist Chinese have distinct criminal and civil systems, as do the democratic Swiss, and the monarchist Saudis.1 The criminal-civil distinction also is a basic organizing device for Islamic Pakistan, Catholic Ireland, Hindu India, and the atheistic former Soviet Union, industrialized Germany, rural Papua New Guinea, the tribal Bedouins, wealthy Singapore, impoverished Somalia, developing Thailand, newly organized Ukraine, and the ancient Romans. Apparently every society sufficiently developed to have a formal legal system usesthe criminal-civil distinction as an organizing principle. Why? Why has every society felt it necessary to create a system to impose criminal liability distinct from civil liability?

civil liability, criminal liability, desert, punishment theory

Abstract:
Many jurisdictions in this part of the world and elsewhere are contemplating or are in the midst of criminal code reform. I want to talk today about the most basic decisions that face those criminal code reformers: How should a criminal code be structured? Which liability rules should be codified? What kinds of information should be taken into account in formulating a code's provisions? What ought to be the primary purposes and drafting principles of a code?

My general plan has two parts: first, to look briefly at the trends in codification during the past thirty years and to draw from this some lessons on the most useful reform approaches; and, second, to suggest other kinds of reforms, and approaches to reform, that are not reflected in existing codes but ought to be.

criminal, modern code, criminal code, codification, criminal reform

Abstract:
Robinson responds to George Fletcher's attacks on the Model Penal Code, specifically Fletcher's often biting claims that the drafters adopted these dogmas: (1) Define as many concepts as you can -- whether you are competent to do so or not. (2) Write provisions that seem precise but that judges could never understand. (3) Assume that you and your drafting committee are the only smart lawyers who have ever lived. (4) Pretend to subscribe to the rule of law. (5) Wreak theoretical changes, inadvertently if possible. (6) Pretend the problem of mistake does not exist. (7) Recognize but do not recognize mistake of law as an excuse.

model penal code

Abstract:
The objective (or deeds) theory of justification has been attacked on the ground that one can never know for sure whether the circumstances for justification actually exist. One can only speculate as to whether the conditions exist. This is true not only for the actor at the time of the conduct for which a justification is sought but can also be true for the adjudicator after all available evidence has been gathered.

The attack contains a useful insight about the nature of justifying circumstances: they necessarily contain some degree of unavoidable uncertainty. But it does not follow from this insight that justification defenses must necessarily be subjective in their formulation or conceptualized as based upon a reasons theory.

This brief essay explains why this is so and what the inevitably speculative insight tells us about the objective theory of justification.

Criminal Law and Procedure, justification defenses, unavoidable uncertainty, deeds theory, reasons theory, objective theory of justification, subjective theory of justification

Abstract:
This short essay, part of the Criminal Law Conversations project, argues for an objective formulation of justification defenses, in which an actor's conduct is justified if it adheres to the objective rule of conduct that we want people to follow in the future. That is, it argues that justification defenses serve an essential function in announcing the rules of conduct ex ante to state the authorized exceptions to the law's prohibitions. The essay is critical of a subjective formulation of justification defenses, in which an actor is said to be "justified" if she reasonably believes she is justified even if her conduct is not something we would want others to do in the future. The objective formulation is preferable both because it serves better to define ex ante the criminal law's rule of conduct, including the exceptions to its prohibitions, and because it produces the correct liability results with regard to the unknowingly justified actor and those who resist and assist him.

justification defenses, objective rule of conduct, ex ante, subjective formulation of justification, subjectivity, objectivity

Abstract:
A distribution of punishment according to principles of desert frequently conflicts with a distribution according to utilitarian principles of crime control. One can blamelessly cause a harm or evil prohibited by the criminal law. While little or no punishment may be deserved, the offender may be dangerous and his punishment may be an effective means of deterring others. Yet, in determining criminal liability, the criminal law most frequently bars liability in the absence of blameworthiness, deferring to the civil commitment system to provide needed protection from dangerous blameless offenders. But this preference for desert, even at the expense of crime control, is tested again at the time of sentencing. No matter what the offender's assigned liability, deterrent, incapacitative, or rehabilitative goals may suggest a greater (or a lesser ) degree of punishment than does an actor's blameworthiness. And in every instance where the criminal law takes the utilitarian course in assessing liability, it passes the conflict between desert and crime control on to the sentencing judge. Should the offender's sentence more closely match what he deserves or what will minimize future crime, or a compromise between the two?

desert, punishment, punishment theory, crime control

Abstract:
The primary objection of traditional criminal law theory to hate crimes is use of the actor's motive in defining the offense or the penalty enhancement. Motive, it is said, ought not be, and generally is not held to be, relevant to criminal liability. Hate crimes violate this rule by taking account of the actor's motive - his or her anti-race, anti-religion, anti-sexual preference, or other anti-group motive.

I will argue that motive ought to be and commonly is, notwithstanding the claims to the contrary, an element in determining liability or grade of offense. What is objectionable, and what generally has been prohibited, is use of an actor's character or general set of values as an element of liability or grading; but motive is not character. By keeping the law's focus only upon the character attributes relevant to the conduct constituting the offense, motive in fact serves a useful role in reducing the temptation of liability inquiries to stray towards punishing general character.

While reliance upon motive may be consistent with traditional criminal law theory, it does not follow that motive is necessarily the best criterion for defining the harms and evils that hate crimes seek to punish. Using an actor's bigoted motivation as a defining characteristic creates special difficulties in implementation and application, as well as dangers of infringing constitutionally protected speech or expressive conduct. One might conclude that, while traditional notions of criminal law theory would permit its use, hate motivation is best avoided as an offense or grading element, in favor of more objective factors present in such offenses. A promising alternative is the criminalization of conduct that is intended to cause (or risk) intimidation or terror of an identifiable group. That alternative avoids the possibility of First Amendment problems and is consistent with mainstream criminal law theory by punishing an actor according to the extent of the harm caused, risked, or intended.

Hate crimes, criminal liability

Abstract:
What is the role of the occurrence of harm or evil in criminal law? What should it be? Answers to these questions commonly use the distinction between what is called an objective and a subjective view of criminality. To oversimplify, the objective view maintains that the occurrence of the harm or evil defined by the offense is highly relevant. The subjectivist view maintains that such harm or evil is irrelevant; only the actor's culpable state of mind regarding the occurrence of the harm or evil is important.

The labels tend to overstate a rather subtle distinction. The objectivist or harmful consequences view is not so objective as to require that the harm or evil of the offense actually occur in order to impose liability. The objectivist imposes liability for inchoate conduct, as for example, when the actor comes close to bringing about a real offense harm or evil. The subjectivist view, in turn, is not so subjective as to only require a culpable state of mind. An intention alone is insufficient for liability; some act is required to prove the actor's willingness to act upon, to externalize, his or her subjective culpability. And, while the occurrence of the harm or evil may not be important to the subjectivist, the nature of the harm or evil intended or risked is important to determine the degree of the actor's culpability. Intending to cause death is more serious than intending to trip. The primary difference between the two views, then, is the role of resulting harm or evil. The objectivist thinks it central, the subjectivist thinks it marginal.

The different perspectives also have been labelled as the difference between traditionalists and modernists. Common law is said to embody the traditional objective view of criminality, where the gravamen of an offense is its resulting harm or evil. The modernist subjective view of criminality, in contrast, focuses upon the actor's culpable state of mind toward bringing about the offense harm or evil, without regard for whether the harm or evil actually occurs.

As currently expressed, these are distinctions that in many important respects obscures rather than sharpens the points of dispute in criminal law debate.

Criminal law, liability, punishment, traditionalists, modernists, criminality

Abstract:
For more than half a century, the retributivists and the crime-control instrumentalists have seen themselves as being in an irresolvable conflict. Social science increasingly suggests, however, that this need not be so. Doing justice may be the most effective means of controlling crime. Perhaps partially in recognition of these developments, the American Law Institute's recent amendment to the Model Penal Code's "purposes" provision – the only amendment to the Model Code in the 47 years since its promulgation – adopts desert as the primary distributive principle for criminal liability and punishment.

That shift to desert has prompted concerns by two groups – ironically, two groups traditionally opposed to one another. The first group – those concerned with what they see as the over-punitiveness of current criminal law – worries that setting desert as the dominant distributive principle means continuing the punitive doctrines they find so objectionable, and perhaps will make things worse. The second group – those concerned with ensuring effective crime control – worries that a shift to desert will create many missed crime-control opportunities; it will increase avoidable crime.

The first group's concern about over-punitiveness rests upon an assumption that the current punitive crime-control doctrines of which they disapprove are a reflection of the community's naturally punitive intuitions of justice. However, as Study 1 makes clear, today's popular crime-control doctrines in fact seriously conflict with people's intuitions of justice by exaggerating the punishment deserved.

The second group's concern that a desert principle will increase avoidable crime exemplifies the common wisdom of the past half century that ignoring justice in pursuit of crime-control through deterrence, incapacitation of the dangerous, and other such coercive crime-control programs is cost free. However, Studies 2 and 3 suggest that doing injustice has real crime control costs. Deviating from the community's shared principles of justice undermines the system's moral credibility and thereby undermines its ability to gain cooperation and compliance and to harness the powerful forces of social influence and internalized norms.

The studies reported here give assurance to both groups. A shift to desert is not likely to either undermine the criminal justice system's crime-control effectiveness, and indeed it may enhance it, nor is it likely to increase the system's punitiveness, and indeed it may reduce it.

Purpose of criminal law, criminal liability and punishment, retributivists, crime-control, Model Penal Code, desert, intuitions of justice, deterrence, social science research and law, “three strikes,” felony murder, drug offenses, strict liability, media coverage of crime

Abstract:
In an earlier article -- Robinson et al., Codifying Shari'a: International Norms, Legality & the Freedom to Invent New Forms, http://ssrn.com/abstract=941443 -- the authors report the challenges and opportunities that arose during their commission by the United Nations Development Programme and the Government of the Maldives to produce the first modern comprehensive criminal code based upon Shari'a.

In this brief essay they respond to published criticisms of that project, which asserted, among other things, that Shari'a cannot be codified, that it should not be codified, that the project was a shameful exercise in neocolonialism, that the project was an act of oppression in complicity with an insufficiently democratic government, and that the project was done badly because it got Shari'a wrong, because it sometimes did not follow Shari'a, or because it was insufficiently sensitive to the methodology and process inherent in Shari'a.

Islamic Model Penal Code, Shari'a, United Nations Development Program, Republic of the Maldives, codified penal law, sentencing guidelines, international norms, Muslim, drafting, criminal law and procedure

Abstract:
One widely-stated goal of criminal law theory is to create the set of rules that best implements our collective sense of justice. To reach this goal, the theorist continuously adjusts his theory so that it generates rules that better reflect our fundamental notions of justice. These rules, moreover, must function as workable doctrine, which in the context of criminal law means precise statutory provisions.

It is this process of theoretical refinement and translation that is the topic of this article. Can good theory generate results that approximate our collective sense of justice? Can the theoretical refinements be translated into workable statutory provisions? What limits the success of the translation?

As a case study, this article offers a theory to resolve one of the more troublesome areas of criminal law: cases where an actor is in some way responsible for bringing about the conditions of his own defense, such as by provoking another's use of unlawful force against him or by causing his own intoxication. As Part I illustrates, current law governing such instances is inadequate. It is inconsistent, frequently irrational, and is a poor approximation of our collective sense of justice. Part II offers some basic theoretical principles to govern cases of causing the conditions of one's own defense. These principles are consistent with well-accepted principles of liability and exculpation, and they generate results that accord well with our notions of justice. Nevertheless, dramatic improvement in the law can be realized only if the theory can be implemented through workable doctrine, as expressed in statutes. The statutes proposed here, in fact, face troublesome questions about complexity and difficulties of proof.

Part III examines the extent of these problems and offers possible solutions. The most promising solutions, however, have their own problems of constitutional infirmity. Ultimately, then, the confines of the American criminal justice system limit the translation of good theory into workable doctrine.

Justice, criminal law, criminal liability, defense

Abstract:
Our legal system distinguishes criminal law from other, civil law and criminal commitment from civil commitment. We speak of a crime rather than a violation or a breach, and punishment rather than sanction or liability. Why is criminal law kept distinct? One can conceive of a system in which no such criminal-civil distinction exists. What is now dealt with as criminal law could be treated as just another aspect of civil law. Some academics have proposed just such a system, although I know of no society in which such a system currently operates. Why are societies persistent in maintaining a distinct criminal system?

Criminal law is not unique in the conduct it punishes; some conduct violates criminal and civil law. Nor is criminal law unique in the deprivations that it imposes; civil commitment, tort law, and a variety of other civil measures can deprive a person of his or her liberty, put restrictions on what a person can do, and compel the payment of money. If criminal law is not unique in either the conduct it prohibits or the deprivations it dispenses, why is it kept distinct? Its existence must have an explanation apart from its prohibitions, deprivations, or procedures.

criminal, civil, punishment, distinction

Abstract:
In this article I will show why our legal system's rules of conduct are presently unclear, how the system arrived at its current state, and what can be done to make the rules of conduct clearer. My arguments and conclusions are, in brief, as follows: The criminal law fails to communicate clear rules of conduct because it fails to distinguish this communicative function from that of adjudicating violations of the rules, which requires primarily an assessment of the blameworthiness of the violator. These two functions - announcing public rules of conduct and assessing individual blame in adjudication of a violation - have very different doctrinal foundations. The rules of conduct function gives the general population ex ante direction as to what they can, must, and must not do. The principles of adjudication function gives decisionmakers (i.e., prosecutors, juries, and judges) guidance in assessing ex post the blameworthiness of an individual's violation of the rules. Section II of this article illustrates the rules of conduct/principles of adjudication distinction by identifying how different aspects of current law effectively serve these functions.

Conduct, criminal, adjudication

Abstract:
In this wide-ranging essay, Robinson, a former Commissioner of the United States Sentencing Commission, who dissented from the Commission's guidelines, gives his analysis of the problems that triggered the reforms of the past two decades, how those problems have been attacked, the resulting effect of the reforms, the problems that remain, and how the remaining problems might be solved. In particular, Robinson focuses on what he calls the problems of irrationality, disparity, and deception, as being the primary motivation for modern reforms such as the federal Sentencing Reform Act of 1984. He concludes that the problem of deception has been solved, although we will continue to suffer through a difficult transition period as public expectations of prison term lengths change to match what the reality has long been. The problem of disparity has been significantly reduced, he concludes, although more can and should be done. It is the problem of irrationality, Robinson argues, that has not been addressed and will remain a barrier to fair and effective sentencing. He offers his own view of how the problem ought to be attacked, but expresses some pessimism as it whether the needed reforms are possible within the current political climate. The essay is derived from lectures given at the United Nations Institute in Fuchu, Tokyo, Japan (UNAFEI).

sentencing

Abstract:
After planning the effort for twenty years, the American Law Institute spent ten years debating and drafting a model criminal code. Twenty-eight drafters and forty-two advisors produced thirteen reports that were debated at eight annual meetings. Twenty years later, seven reporters with twenty-five advisors completed six volumes of official commentaries.

This monumental drafting effort served as only the starting point for nearly two-thirds of the states that have recodified their criminal codes since the Model Penal Code was promulgated in 1962. In every instance a commission, legislative committee, or both, devoted additional time and energy redebating and revising the 1962 model provisions. In California, for example, a reform commission began work in 1963 and spent six years producing three published tentative drafts. Controversy surrounding the proposals resulted in dismissal of the commission's staff and legislative reorganization of the commission. Two years later the commission completed a fourth tentative draft and submitted it to the legislature. It was never enacted.

Beginning with a 1965 call for a code reform commission, the federal code reform effort has been even more extensive. With the Model Penal Code as a primary resource, a sizable commission staff produced and circulated a study and a final draft federal code. The proposal prompted forty-one hearings by Senate committees over the next six years, resulting in eighteen volumes of materials consuming 10,000 pages. In 1973, two bills were introduced in the Senate, producing another 3000 pages of hearings, but no legislative action. A new bill was proposed and considered in the next Congress, but controversy prevented it from coming to a vote. After further revision and compromise, and eight days of debate on the floor, the Senate passed a criminal code reform bill in 1978. The full House did not take up the measure. In subsequent Congresses, the Senate and the House introduced and moved out of committee similar bills but passed none of these, and today's federal system still has no modern criminal code.

The American criminal law reform experience is not unusual. Since 1968, England's Law Reform Commission has produced twenty-one working papers and reports on various aspects of criminal code reform. Six of these have resulted in legislative action of some kind, but a comprehensive criminal recodification effort did not begin until 1980 when a drafting team was appointed. Its report was published five years later. Reports and recommendations by official and unofficial "scrutiny groups" were the basis for a revised draft published in 1989. Parliament has not yet taken up a comprehensive criminal code bill; piece-by-piece reform based on the proposed code is more likely.

Similar reform energy is seen in other countries. In the planning stages since 1965, and after the usual years of drafting, review, consultation, and redrafting, a draft Canadian Criminal Code now awaits parliamentary action. Within the last two decades, Germany, Austria, and Poland, to name a few, have enacted new codes. France, Spain, Finland, Canada, New Zealand, Russia, many of the former Soviet republics, and a host of others are currently at one stage or another in the code reform process.

The enormous effort devoted to criminal code reform and its attendant controversy lead to a rather inescapable conclusion: People believe that criminal codes matter. It is worth agonizing over and fighting about the particular formulation of a code's provisions.

I agree with the view that criminal codes and criminal code reform are important, and I have enthusiastically participated in all aspects of the code reform process as a code drafter, a legislative counsel, a code reform commission director, an academic devoted to the study of criminal code formulations, and a board member to an international criminal law reform society. Nonetheless, I am troubled by accumulating social science data suggesting what many cops and robbers on the street have long thought: Criminal codes are irrelevant. At the very least, the data suggest that the code reform enterprise merits close examination to determine how and if criminal code provisions have an effect. Is it possible that we devote enormous reform efforts to and argue fervently about issues that do not matter?

Consider the three most obvious functions that a criminal code is designed to serve: (1) to announce to the public the conduct that the criminal law prohibits or requires, (2) to set the rules that determine whether to impose criminal liability for a violation of the announced rules, and (3) if liability is imposed, to set the grade of the violation to determine the general range of punishment. What information do we have about the actual effect of the criminal code in each of these respects?

criminal code, Model Penal Code

Abstract:
This paper argues that criminal codes have two distinct functions. First, a code must ex ante announce the rules of conduct. Second, it must set out the principles of for adjudicating, ex post, violations of those rules. These two functions often are in tension with one another. Each calls for a different kind of code, addressed to a different audience, with different objectives: To be effective ex ante, the rules of conduct must be formulated in a way that they will be understood, remembered, and able to be applied in daily life by lay persons with a wide range of abilities and from a wide variety of backgrounds. Effectiveness in announcing the rules of conduct requires simple, clear, and preferably objective rules. In contrast, the goal of the principles of adjudication -to assess ex post the degree of liability and punishment, if any, due for a violation of the rules of conduct - often requires nuanced, subjective, and sometimes complex judgements, at least as nuanced, subjective, and complex as our notions of justice.

The paper makes the case for two distinct code documents, each drafted to best perform its function, and explores how this can be done.

criminal code

Abstract:
When a parole agent or other representative of the administrative component of a parole system causes a parolee to be placed or retained in custody, without action by the quasi-judicial, decision-making component of the system, a parole hold is said to have been placed. An examination of legal theories offered to support such holds suggests that no sound authority exists for the use of parole holds. Their present use appears to be not only unauthorized, but in violation of the basic rights which parolees retain after conviction and incarceration. An analysis of the theoretical basis for having an independent parole case-decision-making body separate from the administrative workings of the system suggests that parole holds undermine the theoretical foundations of such a separation system and are likely to have serious detrimental effects on the system's successful operation. This Comment will present and analyze these issues, then propose specific reforms which can better serve the interests of both the parolee and the parole system.

parole, parolee, rights, parole holds

Abstract:
A traditional criminal code performs several functions. It announces the law's commands to those whose conduct it seeks to influence. It also defines the rules to be used in deciding whether a breach of the law's commands will result in criminal liability and, if so, the grade or degree of liability. In serving the first function, the code addresses all members of the public. In performing the second function, it addresses lawyers, judges, jurors, and others who play a role in the adjudication process.

In part because of these different audiences, the two functions call for different kinds of documents. To effectively communicate to the public, the code must be easy to read and understand. It must give a clear statement, in objective terms if possible, of the conduct that the law prohibits and under what conditions it is prohibited. Readability, accessibility, simplicity, and clarity characterize a code that most effectively articulates and announces the criminal law's rules of conduct.

The adjudicators, on the other hand, can tolerate greater complexity. Clarity and simplicity are always a virtue, but the judgments required of adjudicators necessarily limit how simple the adjudication rules can be. While the public can be told rather easily and clearly that "you may not cause bodily injury or death to another person," when a prohibited injury or death does occur, the adjudicators need rules to determine whether the injurer ought to escape liability because he or she had no culpability, was insane, believed mistakenly but reasonably that the force used was necessary for self-defense, or for any number of other reasons. If liability is appropriate, the adjudication rules must determine the appropriate degree of liability, taking account of the actor's level of culpability, the extent of the injury, and a variety of other mitigating and aggravating circumstances. Many, if not most, of these liability and grading factors require complex and sometimes subjective criteria.

The current practice of using a single code to perform both functions means that neither function is performed as well as it could be. Is it possible to draft two codes - a code to articulate the rules of conduct, written for lay persons, and a code to govern the adjudication process, written for criminal justice professionals? If one were to pull out of a current criminal code only those provisions that a lay person must know in order to remain law-abiding, what would such a document contain and what would it look like? If one were to organize a code to capture the decisional process for criminal adjudication, what would such a document contain and what would it look like? This Article attempts to answer these questions. We tentatively conclude that distinct codes of conduct and of adjudication can be drafted and can allow the criminal law to perform both functions more efficiently and successfully.

The possibility of creating separate codes for separate functions is made feasible in part because each doctrine of criminal law typically serves one or the other function. For example, to communicate effectively to the members of the public the rules needed to conform their conduct to the requirements of law, a code need not clearly communicate the subtleties of the insanity defense, the detailed definitions of culpable states of mind, or the operation of the entrapment doctrine. That is, a code of conduct and a code of adjudication can be created by segregating the doctrines of criminal law into one or the other code according to the function that each doctrine performs.

This Article outlines how a code of conduct and a code of adjudication can be drafted, and how taken together the two codes can better perform each of the two functions of present criminal codes. Part II discusses strategies for drafting an effective code of conduct, Part III for drafting a code of adjudication. Both discussions use examples from the complete models for a draft code of conduct in Appendix A and a draft code of adjudication in Appendix B. We do not offer these codes as refined, ready-to-enact models, but rather as illustrations of the drafting principles that we develop.

criminal code

Abstract:
Vice-Dean Kremnitzer has brought to my attention the Report of the Landau Inquiry Commission. The Report raises interesting and important issues. Of particular interest is the claim of justification for the use of physical force against suspected terrorists in custody to force them to reveal information that would save innocent lives. I set out my own views in a letter to Editor, thereafter published in Israel Law Review.

terrorist, physical force, terrorists, investigation, security, Report of the Landau Inquiry Commission

Abstract:
Part I of this Article summarizes the arguments as to why lay intuitions of justice are important for criminal law rule-makers. Part II sketches the challenges at reliably determining those intuitions and describes methodology worked out to meet those challenges. Part III looks briefly at one simple study to illustrate the methodology, which has been used on a wide variety of issues, as described in Part IV.

justice, punishment, community

Abstract:
The Sentencing Reform Act of 1984 created the United States Sentencing Commission and directed it to devise sentencing guidelines for the federal criminal justice system. The Commission recently fulfilled this mandate, promulgating a final set of rules, which took effect November 1. Commissioner Robinson, in filing the lone dissent to these guidelines, argued that they neither meet the expectations of the Act nor provide a comprehensive and workable system.

In this Article, Commissioner Robinson discusses the necessary components of a modern, principled, and workable system. He first identifies an ideal system by describing its primary goals and by offering the drafting principles necessary to create it. Next, he offers additional drafting principles designed to construct a workable system toward the ideal and to encourage the system's consistent application and continuing refinement. Finally, Commissioner Robinson illustrates the central features of a comprehensive sentencing plan that embodies the suggested drafting principles.

Sentencing Reform Act, sentencing, United States Sentencing Commission

Abstract:
The Editors have asked me to introduce the Symposium and to comment on its paper. I will begin by discussing why the papers selected here are well worth your reading. Then, I will comment on some of the issues they raise, comments that are sometimes critical of what it is said in the papers.

Nearly all of the articles touch on one or more of three important topics: (1) the allocation of sentencing power and discretion, (2) the reasons for, mechanisms of, and solutions to circumvention of the Guidelines, and (3) the factors that should be taken into account in sentencing.

Sentencing guidelines

Abstract:
We are in a crime panic. Clear-headed commentators point out the lack of justification for the panic: crime rates have not in fact increased recently, they correctly note. But a complete picture of our crime situation includes two other important pieces of information. First, one reason that crime has not increased recently is because we have increasingly altered our life style to avoid it. We no longer go out at night. We no longer let our children walk to a friend's house to play. We install locks, carry mace, and gladly pay more for apartment buildings with security. Private expenditures on security in 1983 were $21.7 billion, considerably more than the $13.8 billion of public spending. By 1990, private annual expenditures had risen to $52 billion.2 The rate of crime has stabilized because we increasingly diminish the quality of our lives to avoid it. The injury of crime escalates even where its incidents do not.

Another important piece of the crime picture is the fact that crime has dramatically increased over the longer term, albeit in sufficiently small increments that no single reported increase alone justified panic. In 1955, there were 46 robberies annually per 100,000 population; for equal population today we have over 270 robberies annually, a six fold increase. Rape rates have more than tripled. Burglary rates have almost quadrupled. Murder per capita has more than doubled. The aggravated assault rate has increased more than sixfold. Overall the major crime rate is more than four times what it was four decades ago, including both urban and rural areas.

Perhaps the current crime panic is not born of new data but of realized frustration, like the monkey who works methodically to free himself from a trap and goes berserk only when he realizes there is no escape. It is frustration, not crime, that has boiled over.

crime rate, moral credibility

Abstract:
The judicial system now responds to criminal conduct in two rather divergent steps. A judge or jury first determines if a defendant should be held liable for a criminal offense. If so, then the judge or jury goes on to choose a penalty. Precise rules, designed to ensure fairness and predictability, govern the first stage, liability assignment. In the second stage, sentencing, however, judges and juries exercise broad discretion in meting out sanctions.

In this Article, Professor Robinson argues that both liability assignment and sentencing are part of a single process of punishing criminal behavior and should be made more uniform. Decisionmakers would receive greater discretion when they assign liability and more guidance when they prescribe sanctions. Criminal codes, he contends, should explicitly give judges and juries the flexibility to incorporate normative judgments into their decisions on liability. Sentencing guidelines, however, should be more detailed and precise. Professor Robinson offers several strategies to address the practical difficulties of drafting sentencing guidelines that firmly direct judges and juries in dealing with complex issues, and he illustrates how criminal codes could give decisionmakers more discretion in certain circumstances.

Criminal liability, sentencing, sanctions, punishment, criminal code

Abstract:
On April 29, 1992, the jury in the first Rodney King beating case acquitted the officers of assault charges. This touched off riots in several parts of South Central Los Angeles. This article explores mob psychology and riot responsibility.

Riot, mob, responsibility, criminal liability

Abstract:
Bernard Goetz shoots five youths who accost him on a subway in New York. His acquittal of all serious charges brings cheers from some and angry protests from others. After a high-speed chase and resisting arrest, officers severely beat Rodney King to a degree that seems clearly excessive. Riots erupt when a jury acquits the officers, but many others agree with the verdicts. After years of sexual and psychological abuse, Lorena Bobbitt cuts off her husband's penis as he sleeps. Her acquittal is applauded by some and decried by others.

Has the diversity of our society brought a lack of consensus on what constitutes justice? Will expected increases in diversity bring increasing disagreements? In a system like ours, of lay juries, a breakdown in consensus could devastate effective criminal justice. It also could further aggravate relations between races and genders.

criminal, punishment

Abstract:
The Model Penal Code has all the markings of an historic document. It is a sophisticated and enlightened model for penal reform that has put the United States in the front row of reformers. And many believe that the likes of such an historic reform will not come again for more than another century.

In my view, it can hardly be disputed that the Code is an historic document. It is less clear, however, that we should not expect a dramatically different code before another century.

criminal code, model penal code, reform

Abstract:
The Sentencing Reform Act was intended to implement Congress' inspired vision of modern criminal sentencing. Comprehensive and binding guidelines were to bring rationality and greater consistency to federal sentencing. With the guidelines promulgated today, however, that vision dims. These guidelines may well produce more irrationality and more unwarranted disparity than exists today.

sentencing, guidelines, sentencing commission, sentencing reform act

Abstract:
Criminal law excuses are analyzed as a group of analogous doctrines working together to exculpate blameless offenders. The analysis reveals that current law doctrine, although it often is not explicit about the parallel and integrated operation of its excuse defenses, does much to perform this exculpatory function. However, the systematic perspective of excuses also reveals some serious shortcomings of current doctrines.

Criminal law excuses, duress, insanity, mental illness, mistake, intoxication, immaturity, impaired consciousness, involuntary act, hypnosis

Abstract:
The behavioral sciences increasingly call into question the assumption of criminal law's ex ante influence on conduct. Potential offenders commonly do not know the legal rules, either directly or indirectly, even those rules that have been explicitly formulated to produce a behavioral effect. Even if they know the rules, the cost-benefit analysis potential offenders perceive - which is the only cost-benefit analysis that matters - commonly leads to a conclusion suggesting violation rather than compliance, either because the perceived likelihood of punishment is so small, or because it is so distant as to be highly discounted, or for a variety of other or a combination of reasons. And, even if they know the legal rules and perceive a cost-benefit analysis that urges compliance, potential offenders commonly cannot or will not bring such knowledge to bear to guide their conduct in their own best interests, such failure stemming from a variety of social, situational, or chemical influences. Even if no one of these three hurdles is fatal to law's behavioral influence, their cumulative effect typically is.

There seems little doubt that having a criminal justice system that punishes violators, as every organized society has, does have a general effect in influencing the conduct of potential offenders. What seems unlikely is that the manipulation of criminal law rules will alter people's conduct, given the common lack of the needed prerequisites to a deterrent effect noted above. But even if such conditions did exist, there are still good reasons not to adopt deterrence as a distributive principle for criminal liability and punishment. First, dynamics of deterrent effect are complex and we at present have neither the information nor the understanding needed to reliably predict what effect will come from a given doctrinal manipulation. Further, every distribution of punishment will produce some deterrent effect, even a just deserts distribution, for example. Deterrence as a distributive principle can only do a better job than a desert distribution where it deviates from desert - that is, where it does injustice and fails to do justice - yet it is just these cases of deviation from desert in which deterrence works most poorly and has its greatest crimogenic effect.

This short essay serves as a core text for the Criminal Law Conversations project.

behavioral sciences, ex ante, cost-benefit analysis of crime, offender perceptions, lack of deterrent effect, just deserts

Abstract:
This lecture offers a broad review of current punishment theory debates and the alternative distributive principles for criminal liability and punishment that they suggest. This broader perspective attempts to explain in part the Model Penal Code's recent shift to reliance upon desert and accompanying limitation on the principles of deterrence, incapacitation, and rehabilitation.

punishment theory, distributive principle for criminal liability and punishment, deterrence, incapacitation of the dangerous, rehabilitation, empirical desert, deontological desert, Model Penal Code

Abstract:
This article examines statute of limitations. The primary rationale for statutes of limitation is a deserved suspicion of old evidence. With time, memories fade, witnesses die, and physical evidence disappears. In 1623, when a statute of limitation was first enacted in England, these formidable problems for both prosecution and defense were avoided simply by barring prosecution after a fixed period. But time and circumstances have changed.

statute of limitations

Abstract:
John DiIulio deserves a badge of courage for taking on the often ignored issue of black inner city crime. His essay, America's Black Crime Gap --And How to Close It, describes in persuasive terms the alarming dimension of black on-black crime and suggests some specific remedies. American blacks are being victimized in inner cities at record rates but, because the victimizers are also black, the subject is taboo. Better to avoid an awkward discussion of inner city black violence, than to save black lives? If anyone ever had doubts, political correctness lives.

But, despite its usefulness, DiIulio's essay misses the larger and more important point. He is wrong when he concludes that America does not have a crime problem; inner city America does. He ignores four decades of rising crime in white America. According to government reports, in 1955, there were 46 robberies annually per 100,000 population; for equal population today we have over 270 robberies annually, a six fold increase. Rape rates have more than tripled. Burglary rates have almost quadrupled. Murder per capita has more than doubled. The aggravated assault rate has increased more than six-fold. Overall the major crime rate is more than four times what it was four decades ago, including both urban and rural areas.

Black and white crime rates have increased together. The black-white arrest ratio for the offenses noted above, for example, has remained relatively constant over the past forty years. (In fact, the proportion of white arrests has increased over black in many offense categories, including homicide, aggravated assault, and burglary.) The black crime gap could disappear tomorrow and America would still have a crime crisis beyond anything the people of the 50's could have imagined.

This does not mean that DiIulio's proposals on inner city crime ought to be ignored. The black-white and 50's-90's crime gaps may have a common cause, with the long-term criminogenic forces in society at large exaggerated in their effect in today's inner cities. DiIulio's proposals could help the larger crime problem. (And ideas for closing the 50's-90's gap could help close the black-white gap.)

crime rate, black crime rate, white crime rate, inner city crime, Black Crime Gap

Abstract:
I believe the Sentencing Reform Act of 1984, which created the United States Sentencing Commission, contains two main directives. First, the Commission's guidelines must provide a rational and principled sentencing system that will further the purposes of just punishment and crime control. Second, the guidelines must reduce unwarranted disparity among sentences for similar offenders who commit similar offenses. The Act provides that this is to be achieved through the Commission's promulgation of a comprehensive sentencing system that will bind all federal judges. I opposed the Commission's Preliminary Draft of September, 1986, because I saw it as lacking both guiding principles and an effective means of reducing disparity. While the Commission's current proposed guidelines differ from the Preliminary Draft in many important respects, like its predecessor, this draft is not guided by rational unifying principles and it will not reduce sentencing disparity. Further, the current proposed guidelines transgress specific statutory limitations on the Commission's authority. Because I believe that the proposal violates both the intent and the letter of the Sentencing Reform Act, I cannot in good faith join the other members of the Commission in support of the proposed guidelines.

sentencing, guidelines, sentencing reform act, Commission's Preliminary Draft

Abstract:
Debate continues over expanded use of habeus corpus for collateral attack of criminal judgments. Some commentators argue that the current system of seemingly endless post-conviction review fails to provide the finality and integrity required of any truly fair and effective system of criminal justice. Others claim that such an expansive post-conviction remedy system is justified when a man's liberty is at stake. It is a central thesis of this article that not only does the present system of post-conviction remedies fall short of achieving adequate fairness and comprehensiveness, but also that the attempt to achieve these values has produced a fragmented, ineffective system of review tangled in unjustified technical rules and unnecessary procedures. It will be argued that this unnecessary confusion has been caused by an indefensible reliance upon the historical distinction between direct and collateral attack. As long as both groups continue to adamantly strive only for the ultimate victory of their own point of view, it is unlikely that a truly adequate and equitable review system will ever be achieved. It may be possible, however, to defuse the current debate while at the same time promoting the primary values advocated by both sides. The system of review proposed here offers an acceptable compromise between the apparently irreconcilable positions.

Direct attack, collateral attack

Abstract:
Errors in instructing the jury have become the single most common ground for appellate reversal in the Anglo-American legal tradition. It may be asserted that such reversals create no great cause for concern because they do not necessarily indicate an inadequacy of the trial system, but simply reflect the use of jury instructions as an appellate battleground for opposing legal theories. But one may ask whether such battles might have been fought more appropriately at trial, without the need for the unnecessary delay and expense of appellate reversal and retrial. At the very least, the high number of reversals due to errors in jury instructions indicate that problems in the jury instruction area deserve careful analysis.

Perhaps the most distressing problem with the present instruction procedure is that while instructions do not provide adequate means for airing and resolving legal conflicts at trial, neither do they perform adequately their primary function: to assist the jurors in understanding the law they are to apply to the case. It is no secret that ritualistic delivery of a collection of technically worded instructions may be more confusing than helpful. It is suggested here that one reason instructions generally fail in their function of guiding and enlightening the jury is that trial judges are driven to a primary concern with avoiding reversal due to some technical error in formulating instructions.

Jury instructions

Abstract:
In his paper, Why the Successful Assassin Is More Wicked than the Unsuccessful One, Leo Katz pick[s] up the gauntlet [Sandy] Kadish throws down to offer a nonconsequentialist justification for giving significance to resulting harm and, in particular, to justify the common practice of punishing attempts less than the completed offense.

In one sense, I may not be the ideal person to serve as critic. I am not one of those who, like Kadish and others, does not believe in the significance of resulting harm in assessing blameworthiness (people whom Katz calls the luck-skeptics but to whom I will refer as the nonbelievers in the significance of resulting harm). I will try to perform the mental gymnastics of pretending to be a nonbeliever as I evaluate Professor Katz's arguments. As Part I explains, I fear the nonbeliever will be unpersuaded.

Whatever the outcome of the debate as Professor Katz presents it, the method of his argument raises issues that I think are just as interesting as its outcome. My social science work, as limited as it is, gives me pause when assessing the argument-by-hypothetical method that Professor Katz uses so ingeniously here (and elsewhere). Relatedly, I have some doubts about using our intuitions in the way Professor Katz would have us use them here (and elsewhere), or at least doubts about whether we can draw from them the kind of conclusions about moral desert that Professor Katz would have us draw.

Setting aside these two concerns for a moment, let me consider Professor Katz's arguments on their own terms.

Moral desert, desert, punishment

Abstract:
This article is about the Kaczynski brothers. David Kaczynski said he had helped the Federal Bureau of Investigation capture his brother only because he believed prosecutors shared his view that his brother is mentally ill, a disturbed, sad, lonely, isolated person, who should be detained but not executed. David Kaczynski made a painful decision for our protection. Although the F.B.I. may have eventually caught his brother, Mr. Kaczynski's help saved not just time, but possibly lives.

Do prosecutors owe it to him not to seek the death penalty? I think not. Criminal justice is a matter not of personal accommodation but of societal
principles. Good deeds by one cannot reduce another's guilt and the deserved punishment.

punishment

Abstract:
Having a criminal justice system that imposes sanctions no doubt does deter criminal conduct. But available social science research suggests that manipulating criminal law rules within that system to achieve heightened deterrence effects generally will be ineffective. Potential offenders often do not know of the legal rules. Even if they do, they frequently are unable to bring this knowledge to bear in guiding their conduct, due to a variety of situational, social, or chemical factors. Even if they can, a rational analysis commonly puts the perceived benefits of crime greater than its perceived costs, due to a variety of criminal justice realities such as low punishment rates. These conclusions are reinforced by studies of crime rates following rule changes. Many show no change in deterrent effect. Those that purport to show a deterrent effect commonly have persuasive non-deterrence explanations, such as a change in incapacitative effect. The few studies that segregate deterrent and incapacitative effects tend to reinforce the conclusion that rule formulation has a deterrent effect only in those unusual situations in which the preconditions to deterrence exist. Even there, the deterrent effects are quite minor and unpredictable, hence inadequate grounds to influence criminal law rule making.

Abstract:
The larger lesson of the nanny case is not about child abuse or sympathy for youthful offenders or TV in the courtroom. It is about the damaging effects of an archaic criminal code - damaging not only to defendants and victims but to all of us. Yet several states and the federal system have codes at least as archaic as Massachusetts'.

criminal code

Abstract:
This New York Times op-ed piece argues that the recent Heller opinion, recognizing a constitutional right under the Second Amendment for a person to hold a loaded firearm in their house, does not have the broad practical implications for greater firearm use that many people seem to assume. It is the criminal law in each state that controls the use of a firearm for defensive force, not the Second Amendment, and those provisions uniformly limit defensive firearm use in dramatic ways. Indeed, as non-lethal weapons become more effective and more available, the use of firearms, which by law constitute lethal force, become increasingly less justifiable under current law.

self-defense, non-lethal weapons, criminal law

Abstract:
We are told that the defendants in the beating of Reginald Denny and seven other victims could not be convicted of serious offenses because they did not have the required intent. They were swept up in the unthinking mob psychology. Normally, a brick full-force at close range to the head of an unconscious victim, followed by a dance of glee at the splattered blood, would leave little question about the thrower's intent to kill. But when done as part of a mob, we are told, no such intention exists. Smashing with the brick also might normally show an intent to permanently disfigure, as aggravated mayhem requires, but not so for rioters.

Riot used to be an offense. Now it's a defense. No other state, or country in the world, past and present, has ever recognized such a defense. The new riot defense conceives of a riot as something that takes away a person's normal mental faculties. But everything we know about rioting suggests that it doesn't take away thinking or control, just conscience.

criminal, riot, riot defense, culpability, punishment

Abstract:
This Wall Street Journal Op-Ed piece argues that international law is insensitive to both justice and effective deterrence in its formulation of use-of-force rules by victims of unlawful aggression, and that this undermines its moral credibility and, ultimately, justice, security, and stability in the world.

Israel, International Law, use-of-force rules, unlawful aggression, justice, deterrence, security

Abstract:
The use of intensive supervision programs (ISPs) and other forms of intermediate penal sanctions is increasing in the United States. This paper describes a preliminary investigation of the extent to which informed New Jersey residents believe that intermediate sanctions that are currently being implemented in their state are severe. Using cross-modality matching of magnitude estimation techniques adopted from psychophysics, we obtained severity ratings of 32 sentences across six sentencing modalities (ISPs, probation, imprisonment, home detention, weekend sentencing, and fines) from respondents who had been briefed beforehand about what these sentences entail. Results indicate that respondents agree that ISPs, weekend sentencing, and home detection have retributive bite and may be accepted as sentences in their own right. Probation was seen as being relatively lenient, and imprisonment as highly severe.

Punishment

Abstract:
If an innocent person is sent to prison or if a killer walks free, we are outraged. The legal system assures us, and we expect and demand, that it will seek to do justice in criminal cases. So why, for some cases, does the criminal law deliberately and routinely sacrifice justice? Why would criminal law rules be designed to give people punishment other than what they deserve?

In this unflinching look at American criminal law, Paul Robinson and Michael Cahill demonstrate that cases with unjust outcomes are not always irregular or unpredictable. Rather, the criminal law sometimes chooses not to give defendants what they deserve: that is, unsatisfying results occur even when the system works as it is designed to work. Sometimes the law punishes more than is warranted, as in the case of Leandro Andrade, who stole $154 worth of videotapes and yet under California's three strikes law will spend at least fifty years in prison. Other times a legal rule punishes less than is merited, as with Sammy the Bull Gravano, a ruthless mob killer granted immunity for numerous murders in return for informing on his fellow Mafiosi.

Law without Justice comprehensively surveys the undeserved outcomes that occur because of law, rather than in spite of it. From statutes of limitations and double-jeopardy rules that disallow newly found evidence conclusively proving an offender's guilt, to harsh doctrines that ignore legitimate claims of blamelessness, the authors find that while some justice-sacrificing doctrines serve their intended purpose, many others do not, or could be replaced by other, better rules that would serve the purpose without abandoning a just result.

With a panoramic view of the overlapping and often competing goals that our legal institutions must balance on a daily basis, this book challenges us to restore justice to the criminal justice system.

Criminal law, justice