On the Boundaries of Culture as an Affirmative Defense
University of Arizona - James E. Rogers College of Law
Reid G. Fontaine
Florida State University
Arizona Law Review, Vol. 51, p. 237, 2009
Arizona Legal Studies Discussion Paper No. 09-19
A cultural defense to criminal culpability cannot achieve true pluralism without collapsing into a totally subjective, personal standard. Applying an objective cultural standard does not rescue a defendant from the external imposition of values - the purported aim of the cultural defense - because a cultural standard is, at its core, an external standard imposed onto an individual. The pluralist argument for a cultural defense also fails on its own terms - after all, justice systems are themselves cultural institutions. Furthermore, a defendant's background is already accounted for at sentencing. The closest thing to a cultural defense that a court could adopt without damaging the culpability regime is a narrow de minimis rule.
Number of Pages in PDF File: 16
Keywords: cultural defense, sentencing, culpability, criminal procedureAccepted Paper Series
Date posted: April 13, 2009
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