The Rule of Criminal Law: Why Courts and Legislatures Ignore Richard Delgado’s Rotten Social Background
Alabama Civil Rights & Civil Liberties Law Review, Vol. 2, p. 79, 2011
52 Pages Posted: 14 Mar 2012
Date Written: 2011
This article was written in connection with the 25th anniversary of the publication of Professor Richard Delgado's piece on the rotten social background defense. That defense seeks to mitigate punishment for a crime that stems from a defendant's growing up, and continuing to live, in an area of poverty, crime, and violence. Rather than taking a position on the defense's ultimate wisdom, this article asks a different question: Why has the defense, as articulated in Delgado's article, proven of such interest to academics but been virtually ignored by courts and legislatures? The article answers by exploring the cultural and subject-matter specificity of the idea of the "rule of law." In particular, the article explains that notions of the rule of law in the area of criminal justice in the United States reflect a dominant ideology reflecting three basic assumptions: first, criminal responsibility may not be comparatively apportioned between an offender and society; second, entity liability -- such as the liability of a "people" for a crime -- is disfavored; and, third, compassion must be reserved for those "like us," "us" being the judgers of culpability in a society -- a description assuredly not fitting persons from rotten social backgrounds. Some aspects of this ideology are overt, other aspects implicit or unconscious. Exploring this ideology through the lens of its inconsistency with the rotten social background defense allows us to imagine alternative, perhaps more defensible, rule-of-criminal-law ideologies. What matters more than the policy wisdom of the rotten social background defense is, therefore, the door it opens to a wider ideological imagination.
Keywords: rotten social background, comparative liability, corporate criminal liability, excuse, justification, defenses, mens rea, mental state, culpability, rule of law, rule of criminal law, Bazelon, ideology, jury, juries, judges, federalism
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