Abstract

http://ssrn.com/abstract=2201495
 
 

Footnotes (409)



 


 



Punishment Without Culpability


John F. Stinneford


University of Florida Levin College of Law

September 16, 2012

Journal of Criminal Law & Criminology, Vol. 102, No. 3

Abstract:     
For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor.

The Supreme Court’s inability to place meaningful constitutional limits on this aspect of legislative power is often described as a failure of courage or will. This Article will demonstrate that it is actually a failure of memory. Prior to the turn of the twentieth century, the Supreme Court’s jurisprudence was animated by two traditional common law ideas: (1) that there are real moral limits to what the government can do, and (2) that the most reliable way to tell whether the government has transgressed those limits is to analyze the challenged action in light of longstanding practice. In the first half of the twentieth century, the Supreme Court rejected these ideas in favor of instrumentalism, an approach to jurisprudence that sees law as a mere instrument through which government experts can solve social problems in light of new scientific insights. As a result, for several decades the Court seemed to approve a limitless legislative power to define and punish crime, which the Court treated as just another form of regulation.

This approach did not last. Criminal law does not merely regulate: it imposes moral condemnation on the offender in the name of the community. In recent decades, the Supreme Court’s constitutional criminal jurisprudence has moved toward reassertion of the old common law constraints, imposing either moral or precedential limits on the power of the legislature to define and punish crime. But because the Court no longer understands the relationship between morality and tradition, these efforts have mostly failed. This Article will suggest that the only way to develop a constitutional criminal jurisprudence that is coherent, just, and duly respectful of the legislature’s primacy in defining and punishing crime is to return to the common law synthesis of morality and tradition that underlies the constitutional law of crime.

Number of Pages in PDF File: 72

Keywords: criminal law, constitution, cruel and unusual punishment, strict liability, burden of proof, affirmative defense, proportionality, common law, instrumentalism, natural law, bill of rights, Eighth Amendment

Accepted Paper Series


Download This Paper

Date posted: January 17, 2013  

Suggested Citation

Stinneford, John F., Punishment Without Culpability (September 16, 2012). Journal of Criminal Law & Criminology, Vol. 102, No. 3. Available at SSRN: http://ssrn.com/abstract=2201495

Contact Information

John F. Stinneford (Contact Author)
University of Florida Levin College of Law ( email )
P.O. Box 117625
Gainesville, FL 32611-7625
United States
Feedback to SSRN


Paper statistics
Abstract Views: 675
Downloads: 164
Download Rank: 106,264
Footnotes:  409

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo4 in 0.296 seconds