Philosophical Issues, Volume 31, Issue 1, Page 188-209, October 2021.

Convicted offenders face a host of so-called “collateral” consequences: formal measures such as legal restrictions on voting, employment, housing, or public assistance, as well as informal consequences such as stigma, family tensions, and financial insecurity. These consequences extend well beyond an offender’s criminal sentence itself and are frequently more burdensome than the sentence. This essay considers two respects in which collateral consequences may be relevant to the question of what the state should, or may, criminalize. First, they may be (...) relevant according to specific accounts of criminalization, including plausible versions of the harm principle and legal moralism. Second, they may be relevant to the legitimacy of state criminalization more generally. Thus for legal theorists concerned with the issue of legitimate criminalization, normative questions raised by collateral consequences are of central importance. (shrink)

This paper concerns what if any obligations a “society of equals” has to criminal offenders after legal punishment ends. In the United States, when people leave prisons, they are confronted with a wide range of federal, state, and local laws that burden their ability to secure welfare benefits, public housing, employment opportunities, and student loans. Since the 1980s, these legal consequences of criminal convictions have steadily increased in their number, severity, and scope. The central question I want to (...) ask is whether the infliction of these burdensome legal consequences for those who have already been punished by the state is consistent with the ideal of equality. I argue that these collateral legal consequences violate relational egalitarian principles of justice and are thus objectionable. I conclude by examining possible objections to my argument. (shrink)

People convicted of crimes are subject to a criminal sentence, but they also face a host of other restrictive legal measures: Some are denied access to jobs, housing, welfare, the vote, or other goods. Some may be deported, may be subjected to continued detention, or may have their criminal records made publicly accessible. These measures are often more burdensome than the formal sentence itself. -/- In Beyond Punishment?, Zachary Hoskins offers a philosophical examination of these burdensome legal measures, (...) called collateral legal consequences. Drawing on resources in moral, legal, and political philosophy, Hoskins analyzes the various kinds of collateral consequences imposed in different legal systems and the important moral challenges they raise. Can collateral legal consequences ever be justified as forms of criminal punishment or as civil measures? Hoskins contends that, considered as forms of punishment, such restrictions should be constrained by considerations of proportionality and offender reform. He also argues that they may in a limited range of cases be permissible as risk-reductive civil measures. Whether considered as criminal punishment or civil measures, however, collateral legal consequences are justifiable in a far narrower range of cases than we find in current legal practice. -/- Considering just how pervasive collateral legal consequences have become and their dramatic effects on offenders' lives, Beyond Punishment? sheds valuable light on whether these restrictive measures are ever morally justified. (shrink)

International criminal law (ICL) is an achievement, but at the same time a challenge to the traditional conception of the principle of legality (_lex praevia_, _scripta_, and _stricta_ – Sect. 1). International criminal tribunals have often based conviction for international crimes on unwritten norms the existence and scope of which they have failed to substantiate. In so doing, they have evaded the objection that they were applying _ex post facto_ criminal laws. This approach, the relaxation (...) of the concept of law by including norms whose existence is doubtful, has apparently served to maintain a concept of strict legality, but it is unsatisfying (Sect. 2). In my opinion, the strict principle of legality that has linked its absolute validity to the positivity of law is not the correct premise. It makes sense to state that positivity and validity do not necessarily go hand in hand (Sect. 3). Applied to ICL, this means that it is neither necessary nor convincing to “conceal” supra-positive law as positive law, as some decisions of the international criminal tribunals do. For this reason, I consider that Radbruch’s formula, consisting in admitting that there are supra-positive limits which positive law must respect in order to be valid, is well-founded (Sect. 4). The path taken by this significant philosopher of law is methodologically convincing, and it squarely faces the problem of the value of positive law. Nevertheless, if we admit Radbruch’s formula and thereby the limited value of positive law (if we claim that the validity of the law depends on it respecting supra-positive minimums of justice), we must also face the problem of the definition of supra-positive values, the epistemological difficulties of having access to them (Sect. 5), and the question of the scope and enforceability of supra-positive law (Sect. 6). In summary, this article aims to explain why Radbruch’s formula offers a convincing conceptual basis for international criminal legality and, in doing so, aims to contribute to the discussion about the foundations of ICL. (shrink)

This review of Hoskins’ book on the collateral legal consequences of a criminal conviction focuses on some of the consequences of his concept of collateral legal consequences for our understanding of justifications of criminalization, the theory of punishment and incapacitation upon which it rests, and the implications for the prosecutor’s role that goes beyond Hoskins’ suggestions in the last part of the book. The review particularly engages with Hoskins’ distinction between punishment and incapacitation, which forms the core of (...) his defense of collateral sanctions as in principle capable of moral justification and his excellent discussion of contemptuous punishment, which he uses to sketch out the limits of both direct and indirect criminal sanctions. (shrink)

Most philosophers of criminal law agree that between criminal offences and defences there is a significant, substantial difference. It is a difference, however, that has proved hard to pin down. In recent work, Duff and others have suggested that it mirrors the distinction between criminal answerability and liability to criminal punishment. Offence definitions, says Duff, are—and ought to be—those action-types ‘for which a defendant can properly be called to answer in a criminal court, on pain (...) of conviction and condemnation if she cannot offer an exculpatory answer’; and defences are ‘exculpatory answers’ that ‘block the transition from responsibility to liability’. I criticise this answerability-based account of the offence/defence divide. It is descriptively false, I claim, as well as normatively unappealing. (shrink)

Epistemologists have posed the following puzzle, known as the proof paradox: Why is it intuitively problematic for juries to convict on the basis of statistical evidence and yet intuitively unproblematic for juries to convict on the basis of far less reliable, non-statistical evidence? To answer this question, theorists have explained the exclusion of statistical evidence by arguing that legal proof requires certain epistemic features. In this paper, I make two contributions to the debate. First, I establish the Criminal Verdict (...) Asymmetry, a previously-unarticulated asymmetry between the epistemic norms of guilty and not guilty verdicts. I argue that the prosecution and defense’s different epistemic burdens influence whether statistical evidence can generate the type of verdict each side pursues. Second, I point out a mistake in how theorists have understood the role of statistical evidence in criminal trials. Though epistemologists have primarily focused on whether statistical evidence can generate specific epistemic features required for convictions, I consider whether statistical evidence can demonstrate a lack of such features. I find that there are epistemic advantages to allowing the defense to introduce statistical evidence which can reveal the prosecution’s failure to prove the defendant’s guilt. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Criminal Law, Pain Relief, and Physician Aid in DyingFaye Girsh, Ed.D., Executive DirectorMadam:The article by Cantor and Thomas on “Pain Relief, Acceleration of Death, and Criminal Law” (KIEJ, June 1996) was a tortured attempt to develop criteria for the humane and compassionate physician who tries to serve the needs of a patient in unremitting pain. There are three areas that merit comment.The authors dealt with pain medications (...) that might have the undesirable side effect of causing death. They did not mention tolerance, which usually occurs in a patient with chronic pain and which would require exceedingly high doses to be effective. They did not mention barbiturates, which are preferable to opiates in causing death and which are used increasingly by compassionate physicians to answer the pleas of their suffering patients, but for which there is no excuse about alleviating pain. Would the criminal law just call the prescription of a lethal dose of barbiturates a reckless act and require conviction? Fortunately, juries, as the authors point out, do not balance these formulas on the head of a pin. When they see the circumstances under which these doctors do help their patients, they choose to nullify the law and would ignore the suggestions made in this article.The authors refer to the “consent” of the patient. They do not mention that these doctors are operating with more than consent; they are administering these medications because suffering patients are begging them to put them out of their pain and the indignities of the dying process. The article discusses the process as though it were the same as consent to elective surgery. These patients—with AIDS, cancer, and hopeless neurological degeneration—are not simply agreeing to a procedure; they are desperately seeking a way out. If the criminal law were to develop criteria for physician aid in dying, certainly one of them should be the active, witnessed, repeated request of such a patient for a certain, quick, painless, gentle death.The third point is that physicians do not face prosecution when administering no treatment to a patient whose life could be saved with treatment but who chooses not to receive it. This has been upheld by the U.S. Supreme Court; no criteria for suffering, alternatives, terminality, justifiability, or unbearability are required. The doctor can stand by while the patient dies what may be a protracted, difficult death, but it is within the law. What matters in this situation is the decision of the patient to refuse treatment, and that is absolute. How ironic that the patient who cannot refuse treatment must, with his or her doctor, jump through all these hoops to achieve a peaceful death.One worries that the physician who must balance the risk of “risky pain relief” against the accusation of recklessness will err in the direction of allowing [End Page 103] the patient to bear the pain rather than help with a dose of analgesics that might be considered beyond the stipulated “risk.”Why don’t we just be honest about it? Allow dying or hopelessly ill patients to make the decision about what they want by passing a carefully defined law allowing euthanasia rather than balancing the risk and trying to determine the “purpose” of the physician’s ministrations. We protect some patients from themselves while allowing others almost complete autonomy to make the choice of ending their lives. The authors were right in saying that proponents of rational laws consider this sheer hypocrisy.Faye Girsh, Executive DirectorHemlock Society U.S.A. Denver, COFaye Girsh misconceives our article’s objective as an “attempt to develop criteria” for the humane physician. Our goal in writing the paper was to analyze the current criminal law framework in the hope of sharpening debate and engendering normative critiques. We readily acknowledge tensions in the current legal framework and would support changes in that framework.Copyright © 1997 The Johns Hopkins University Press... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Criminal Law, Pain Relief, and Physician Aid in DyingFaye Girsh, Ed.D., Executive DirectorMadam:The article by Cantor and Thomas on “Pain Relief, Acceleration of Death, and Criminal Law” (KIEJ, June 1996) was a tortured attempt to develop criteria for the humane and compassionate physician who tries to serve the needs of a patient in unremitting pain. There are three areas that merit comment.The authors dealt with pain medications (...) that might have the undesirable side effect of causing death. They did not mention tolerance, which usually occurs in a patient with chronic pain and which would require exceedingly high doses to be effective. They did not mention barbiturates, which are preferable to opiates in causing death and which are used increasingly by compassionate physicians to answer the pleas of their suffering patients, but for which there is no excuse about alleviating pain. Would the criminal law just call the prescription of a lethal dose of barbiturates a reckless act and require conviction? Fortunately, juries, as the authors point out, do not balance these formulas on the head of a pin. When they see the circumstances under which these doctors do help their patients, they choose to nullify the law and would ignore the suggestions made in this article.The authors refer to the “consent” of the patient. They do not mention that these doctors are operating with more than consent; they are administering these medications because suffering patients are begging them to put them out of their pain and the indignities of the dying process. The article discusses the process as though it were the same as consent to elective surgery. These patients—with AIDS, cancer, and hopeless neurological degeneration—are not simply agreeing to a procedure; they are desperately seeking a way out. If the criminal law were to develop criteria for physician aid in dying, certainly one of them should be the active, witnessed, repeated request of such a patient for a certain, quick, painless, gentle death.The third point is that physicians do not face prosecution when administering no treatment to a patient whose life could be saved with treatment but who chooses not to receive it. This has been upheld by the U.S. Supreme Court; no criteria for suffering, alternatives, terminality, justifiability, or unbearability are required. The doctor can stand by while the patient dies what may be a protracted, difficult death, but it is within the law. What matters in this situation is the decision of the patient to refuse treatment, and that is absolute. How ironic that the patient who cannot refuse treatment must, with his or her doctor, jump through all these hoops to achieve a peaceful death.One worries that the physician who must balance the risk of “risky pain relief” against the accusation of recklessness will err in the direction of allowing [End Page 103] the patient to bear the pain rather than help with a dose of analgesics that might be considered beyond the stipulated “risk.”Why don’t we just be honest about it? Allow dying or hopelessly ill patients to make the decision about what they want by passing a carefully defined law allowing euthanasia rather than balancing the risk and trying to determine the “purpose” of the physician’s ministrations. We protect some patients from themselves while allowing others almost complete autonomy to make the choice of ending their lives. The authors were right in saying that proponents of rational laws consider this sheer hypocrisy.Faye Girsh, Executive DirectorHemlock Society U.S.A. Denver, COFaye Girsh misconceives our article’s objective as an “attempt to develop criteria” for the humane physician. Our goal in writing the paper was to analyze the current criminal law framework in the hope of sharpening debate and engendering normative critiques. We readily acknowledge tensions in the current legal framework and would support changes in that framework.Copyright © 1997 The Johns Hopkins University Press... (shrink)

Criminal juries in the United States typically deliver their decisions through a “general verdict,” expressing only their ultimate conclusion of “guilty” or “not guilty,” rather than through a “special verdict” that identifies whether each element of the charged crime has been proven beyond a reasonable doubt. American courts have broadly favored the use of general verdicts in criminal cases due to concerns that the special verdict will curtail the jury’s decision-making autonomy, including its power to nullify the law (...) in favor of the defense, potentially undermining the criminal defendant’s constitutional right to trial by jury. This Article confronts the legal status quo on verdict format and its underlying, untested assumptions. Drawing upon prior psychology findings and legal professionals’ anecdotal observations, it questions whether the general verdict poses its own under-acknowledged threats to the rights of criminal defendants and the decision-making agency of jurors. While the more guided special verdict format is presumed to threaten nullifying acquittals, the unguided general verdict format might be enabling convictions that violate constitutional norms of due process, impartial adjudication, and equal protection. Given the high-stakes values potentially implicated in the choice of verdict format in criminal cases, it is time to put the conventional wisdom in favor of general verdicts to an empirical test. This Article therefore proposes a methodological framework for investigating whether the legal status quo accurately reflects (1) current stakeholders’ preferences and predictions, and (2) experimentally testable legal and cognitive effects of general versus special verdicts in lay determinations of criminal liability. A data-informed understanding is needed to assess whether the general verdict is optimizing the integrity, fairness, and constitutionality of criminal jury decision making. (shrink)

The book defines and critically discusses the following five principles: the harm principle, legal paternalism, the offense principle, legal moralism and the dignity principle of criminalization. The book argues that all five principles raise important problems that point to rejections (or at least a rethink) of standard principles of criminalization. The book shows that one of the reasons why we should reject or revise standard principles of criminalization is that even the most plausible versions of the harm principle and legal (...) paternalism that have been offered so far are rendered redundant by general moral theories. Furthermore, it demonstrates that the other three principles (or versions thereof), the offense principle, legal moralism and the dignity principle of criminalization, can either be covered by the harm principle, thus making these principles also redundant, or be seen to have what look like other unacceptable implications (e.g. that versions of legal moralism are based on speculative and incorrect empirical assumptions or violate what is called the criminological levelling-down challenge). As such, there is reason to move beyond traditional principles of criminalization, and instead to investigate alternative principles the state should be guided by when attempting to justify which kinds of conduct should be criminalized. Moreover, this book presents and defends such a principle – the utilitarian principle of criminalization. (shrink)

Certainly principles of criminal liability may be understood as rules or norms outlining orders or prohibitions and standing out among other norms with their weight, for legal culture, legal doctrine, etc. In such a classic approach they are norms defining basic rights and obligations in the applicable criminal law. However, is it the only possible and cognitively interesting meaning of the word “principle” in jurisprudence? From the semiotic point of view, they can occur in three (...) forms: special-kind norms, teleological directives, rules which constitute valid performance of conventional activities. In an extra-directival sense these principles may be understood as models-descriptions of shaping the system of criminal law. From a theoretical and practical point of view principles addressed to the legislator are extremely weighty—they can be called rules constructing the system of criminal liability. These all problems are discussed in the article. (shrink)

In recent years, political philosophers have hotly debated whether ordinary citizens have a general pro tanto moral obligation to follow the law. Contemporary philosophers have had less to say about the same question when applied to public officials. In this paper, I consider the latter question in the morally complex context of criminal justice. I argue that criminal justice officials have no general pro tanto moral obligation to adhere to the legal dictates and lawful rules of their offices. (...) My claim diverges not only from the commonsense view about such officials, but also from the positions standardly taken in legal theory and political science debates, which presume there is some general obligation that must arise from legal norms and be reconciled with political realities. I defend my claim by highlighting the conceptual gap between the rigid, generalised, codified rules that define a criminal justice office and the special moral responsibilities of the various moral roles that may underpin that office (such as guard, guardian, healer, educator, mediator, counsellor, advocate, and carer). After addressing four objections to my view, I consider specific contexts in which criminal justice officials are obligated not to adhere to the demands of their offices. Amongst other things, the arguments advanced in this paper raise questions about both the distribution of formal discretion in the criminal justice system and the normative validity of some of the offices that presently exist in criminal justice systems. (shrink)

More than 95 per cent of criminal convictions in the USA never go to trial, as the vast majority of defendants forfeit their constitutional rights to due process in the pervasive practice of plea bargaining. This article analyses the relationship between American mass incarceration and this mass forfeiture of procedural justice by situating the practice of plea bargaining in the normative framework drawn by recent Supreme Court rulings and the proliferation of criminal statutes, including mandatory minimum sentencing legislation. (...) Looking at systemic racial disparities in sentence severity and incarceration rates for otherwise similarly situated defendants, I argue that, rather than a voluntary waiver of constitutional rights, this mass forfeiture of due process rights ought to be conceptualized as the product of an entrenched system of procedural entrapment. Such entrapment, I argue, ought to be abolished not only on grounds of procedural injustice, but because the practice refashions rather than redresses forms of racial domination derived from prior eras. The article concludes by exploring the tactic of mass conscientious plea refusal through the collectively organized assertion of constitutional due process rights as a strategy of resisting mass incarceration. (shrink)

In this article, I comment on Simester and von Hirsch’s theory of criminalization and discuss general principles of criminalization. After some brief comments on punishment theories and the role of moral wrongdoing, I examine main lines of contemporary criminalization theories which tend to focus on the issues of harm, offense, paternalism and side-constraints. One of the points of disagreement with Simester and von Hirsch concerns the role of the harm principle. I rely on a straightforward normative concept of “rights of (...) others,” not in the sense of rights granted in positive law but in the sense of rights which are to be justified in political philosophy. With a rights-centered rather than a harm-centered approach, a prima facie reason for criminalization is the violation of others’ rights. It is unnecessary to develop a separate category of “offense to others,” and paternalistic interventions can be criticized straightforwardly because rights can be waived. (shrink)

This essay is about the difficulties of doing criminal justice in the context of severe social injustice. Having been marginalized as citizens of the larger community, those who are victims of severe social injustice are understandably alienated from the dominant political institutions, and, not unreasonably, disrespect their authority, including that of the criminal law. The failure of equal treatment and protection and the absence of anything like fair and decent life prospects for the members of the marginalized populations (...) erode the basis for its allegiance to demands of the political community. The criminal law thus occupies a problematic normative position with respect to lawbreakers in this population; in many cases, it finds itself in the position of convicting them for crimes for which the political community itself bears some significant responsibility. The attempt to administer criminal justice therefore faces a serious moral predicament; on the one hand, criminal law has a right and an.. (shrink)

Legal epistemology has been an area of great philosophical growth since the turn of the century. But recently, a number of philosophers have argued the entire project is misguided, claiming that it relies on an illicit transposition of the norms of individual epistemology to the legal arena. This paper uses these objections as a foil to consider the foundations of legal epistemology, particularly as it applies to the criminal law. The aim is to clarify the fundamental commitments of (...) legal epistemology and suggest a way to vindicate it. (shrink)

The book focuses on one fundamental thesis: when creating the norms of criminal law, the legislator should strive for their compatibility with the principle of human dignity while taking into account the ethical legitimacy of criminal law.

Beyond Punishment provides a thought-provoking analysis of the negative legal consequences of criminal convictions that fall outside formal sentences imposed on individuals for their offenses. In m...

‘Optimistic’ normative theories of criminal justice aim to justify criminal sanction in terms of its reprobative/rehabilitative value rather than its punitive nature as such. But do such theories accord with ordinary intuitions about what constitutes a ‘just’ response to wrongdoing? Recent empirical work on the psychology of punishers suggests that human beings have a ‘brutely retributive’ moral psychology, making them unlikely to endorse normative theories that sacrifice retribution for the sake of reprobation or rehabilitation; it would mean, for (...) example, that we cannot expect people to support such optimistic theories democratically, calling their feasibility into question. Taking the civic republican theory as an exemplar of optimistic theories, we argue that it does not fail this feasibility test. We review recent empirical research, including studies of our own, to support the claim that, far from being brute retributivists, human beings are generally satisfied only with punishment that delivers something other than mere retribution. And we show that this coheres very closely with the goals and policies that civic republicanism would support, as it may be expected to cohere also with other optimistic proposals. (shrink)

I discuss two problems for the standard Anglo-American account of recklessness, and the distinctions between intention, recklessness, and negligence. One problem concerns the over-breadth of recklessness as thus defined—that it covers agents whose actions display different kinds of culpability. The other problem concerns the importance attached to awareness of risk in distinguishing recklessness from negligence—that one who is unaware of the risk that he takes or creates sometimes displays just the same kind of fault as an advertent risk-taker. We can (...) work towards solutions to these problems by contrasting the Anglo-American schema with the German schema: this distinguishes intention from negligence. Dolus eventualis, properly understood, constitutes a distinctive kind of fault, which should be distinguished from advertent negligence within the category of what the Anglo-American schema counts as recklessness: this helps to solve the first problem, of over-breadth. As for the second problem, we can see why the difference between advertent and inadvertent risk-taking is not always normatively significant by noticing that an agent’s failure to realise the risk he is creating can itself display a significant fault in the structure of the practical reasoning that informs his action—just the same kind of fault as that displayed by an advertent risk-taker. The upshot of this discussion is a new schema of types of criminal fault; I finally note some problems with the practicability of such a new schema. (shrink)

Assume that a person who is suspected of either murdering X or raping Y credibly and voluntarily confesses to have committed ‘a terrible crime’ but immediately after this utterance decides to remain silent. The remaining available evidence cannot prove beyond reasonable doubt the exact offence which he committed. Should such an accused be acquitted of both offences and evade the law or should a way be found to allow a conviction, although no specific offence can be proven beyond reasonable (...) doubt? Harel and Porat suggest that such an accused should be convicted of an unspecific offence. This paper reaches entirely different conclusions, according to which the prevailing insistence of most Criminal justice systems on offence specificity is justified. It is argued that offence specificity stems from the cognitive psychological difficulties associated with simulating the event in question if the accused is convicted of an unspecific offence. The reason is that fact-finders are unable to simulate the details of an unspecific offence while retaining a confidence level sufficiently high to satisfy the standard of ‘beyond reasonable doubt’. The fact-finder faces a choice between a proven offence which is difficult to simulate and a group of unproven offences which are easy to simulate. These difficulties also give rise to a more solid expressivist justification for offence specificity than that conceded by Harel and Porat. Unspecific offences undermine the efficacy of condemnation because the message that corresponding convictions would broadcast to members of the public would be either blurred and ineffective or based on scenarios none of which was proven beyond reasonable doubt. This paper therefore offers two independent justifications for the prevailing insistence on offence specificity, both of which are based on the cognitive psychological difficulties of simulation, as found by the fact-finder and the public respectively. (shrink)

This paper propounds the following theses: 1). that the traditional focus on the Blackstone ratio of errors as a device for setting the criminal standard of proof is ill-conceived, 2). that the preoccupation with the rate of false convictions in criminal trials is myopic, and 3). that the key ratio of interest, in judging the political morality of a system of criminal justice, involves the relation between the risk that an innocent person runs of being falsely convicted (...) of a serious crime and the risk of being criminally victimized by someone who was falsely acquitted. (shrink)

It is argued that the standard way that the criminal justice debate regarding the permissible extent of wrongful convictions is cast is fundamentally flawed. In particular, it is claimed that there is an inherent danger in focussing our attention in this debate on different ways of measuring the probabilistic likelihood of wrongful conviction and then evaluating whether these probabilities are unacceptably high. This is because such probabilistic measures are clumsy ways of capturing the level of risk involved, to (...) the extent that a defendant can be subject to an unacceptably high level of legal risk in this regard even where the relevant probabilities are very low. An alternative conception of legal risk – one that is primarily cast along modal rather than probabilistic lines – is set out which offers a much better way of framing the debate regarding what would be an acceptable level of wrongful conviction. It is further argued that with this modal conception of legal risk in play we can capture an important necessary condition that should be imposed on legal evidence, one that has application beyond the context of the criminal trial. (shrink)

Klaus Günther’s discourse theory of law links the concept of criminal responsibility with the legitimacy of democratic law. Because attributions of criminal responsibility are always aimed at a person, they contain an implicit conception of the person. In a democracy under the rule of law, Günther argues, this conception of a person must be understood, as a “deliberative person”, a free and autonomous person capable of being both the addressee and the author of legal norms. The “deliberative (...) person” is the conceptual core of criminal responsibility, yet Günther develops it using a concept of “communicative accountability” modeled on the concept of criminal responsibility that it is designed to explicate. My aim is to bring this circular grounding of criminal responsibility into view and argue that Günther’s discourse theory of law is based on a legalized picture of discourse. (shrink)

Law has been a close partner to sociology from its very beginning, and the partnership often has proven to be extremely prolific for sociology. Grand theories as well as vital conceptual tools can be counted among its offspring. Both disciplines share the common ground of socio-legal studies, which has developed into a nearly independent interdisciplinary enterprise where legal scholars and sociologists happily meander between the normative and the analytical. From the vast array of topics in the field of socio-legal studies (...) I select the sociology of criminal justice and punishment in order to demonstrate the characteristics of this relationship. The partnership between sociology and law emerged as part of the modernization project in the 19th and 20th centuries, and the sociology of punishment was part of this endeavour. Rooted in a strong tradition of old (Durkheim) and new (Elias, Foucault) classics, recent developments in this field are leaving the idea of an `unproblematically modern punishment' (Whitman, 2005a) behind, and new fields of inquiry for comparative lawyers and sociologists are opening up. (shrink)

This volume is a collection of twelve new essays, authored by leading philosophers and legal theorists, examining the central conceptual and normative questions underlying our institutions of criminal law.

Whether it is morally acceptable to offer rehabilitation by CNS-intervention to criminals as a condition for early release constitutes an important neuroethical question. Bomann-Larsen has recently suggested that such interventions are unacceptable if the offered treatment is not narrowly targeted at the behaviour for which the criminal is convicted. In this article it is argued that Bomann-Larsen’s analysis of the morality of offers does not provide a solid base for this conclusion and that, even if the analysis is assumed (...) to be correct, it still does not follow that voluntary rehabilitation schemes targeting behaviour beyond the act for which a criminal is convicted are inappropriate. (shrink)

In this paper, I explore and probe Joseph Carens’ remarks, in his recent book The Ethics of Immigration, on the immigration status of foreign convicted criminals who have served their sentence, and who wish either to immigrate into our country or who are already here. Carens rejects deportation when it is not called for by considerations of national security, and agrees that considerations of public order can justify barring convicted foreign criminals from entering the country. I broadly agree with his (...) arguments against deportation: my remarks in this respect are clarificatory and exploratory as much as anything else. But both his argument for open borders and his scepticism with respect to radical cosmopolitanism are in tension with his claim that past criminal convictions can act as a bar to entry. (shrink)

On March 29,2000, in U.S. v. Wood, the U.S. Court of Appeals for the Tenth Circuit held that a physician cannot be convicted of murder simply for adopting, in an emergency setting, a risky course of treatment intended to prolong life that, when carried out, effectively hastened death. Finding the government's evidence flawed, based on several evidentiary errors and an erroneous denial of a motion for judgment of acquittal on murder charges, the court reversed the conviction of involuntary manslaughter (...) and ordered a new trial.Virgil Dykes, an 86-year-old man, was suffering from severe abdominal pain when he arrived at the Veterans Administration hospital in Muskogee, Oklahoma, on February 5, 1994. (shrink)

On March 29,2000, in U.S. v. Wood, the U.S. Court of Appeals for the Tenth Circuit held that a physician cannot be convicted of murder simply for adopting, in an emergency setting, a risky course of treatment intended to prolong life that, when carried out, effectively hastened death. Finding the government's evidence flawed, based on several evidentiary errors and an erroneous denial of a motion for judgment of acquittal on murder charges, the court reversed the conviction of involuntary manslaughter (...) and ordered a new trial.Virgil Dykes, an 86-year-old man, was suffering from severe abdominal pain when he arrived at the Veterans Administration hospital in Muskogee, Oklahoma, on February 5, 1994. (shrink)

There are several features of law which rightly draw the interest of philosophers, especially those whose expertise lies in ethics and social and political philosophy. But the law also has features which haven’t stirred much in the way of philosophical investigation. I must say that I find this surprising. For the fact is that a well-run criminal trial is a master-class in logic and epistemology. Below I examine the logical and epistemological properties of greatest operational involvement in a (...) class='Hi'>criminal proceedings, concepts such as evidence, proof, argument, inference, relevance, probability, and more. My principal objective is to expose the deep cleavage between establishment norms in epistemology and logic and standard practice in criminal proceedings. This gives us two options to reflect upon. In one, the establishment norms for the correct management of the concepts in question are basically sound. In that case, as I will show, common law criminal practice would be basically unsound; its convictions would be basically false and unjust. Seen from the other perspective, the criminal justice system would be basically sound, and its criminal convictions basically true and just. It turns out to matter that option one meets with widely spread common disbelief and is generally taken as contrary to common knowledge. What is needed here is an epistemology which gives these sentiments some air to breathe. I will argue that on balance it is the logico-epistemic establishment which requires some serious rethinking. (shrink)

Ideal for anyone involved in the study of criminal justice, this book acquaints students with the philosophical concepts upon which ethical theory is based. It applies these ideas to specific issues and dilemmas within the criminal justice system. Its ultimate goal is to acquaint students with basic concepts of ethics in criminal justice and to train the mind to solve moral issues independently. The Ethical Foundations of Criminal Justice offers a comprehensive definition of ethics, and elucidates (...) its unique language and logic. The book explores the major ethical theories, with extensive discussion of authorities like Kant, Aristotle, Mill, and Hobbes. Chapters investigate normative ethics, teleological theories, deontological theories, and the alternative theories of ethics. The author exhibits the practice of these theories in actual matters of rights, the law, and the behavior of the courts. This book addresses ethics in the context of civil liability, police corruption, and abuse of police power, and includes numerous case studies and references to other relevant works. Criminal justice majors, criminology and law school students, and even police academy cadets will find this text an invaluable source of information both for academic studies and real-world applications. (shrink)

In Responsible Brains, Hirstein, Sifferd and Fagan apply the language of cognitive neuroscience to dominant understandings of criminal responsibility in criminal law theory. The Authors make a compelling case that, under such dominant understandings, criminal responsibility eventually ‘translates’ into a minimal working set of executive functions that are primarily mediated by the frontal lobes of the brain. In so arguing, the Authors seem to unquestioningly accept the law’s view of the “responsible person” as a mixture of cognitive (...) capacities and mechanisms—thereby leaving aside other fundamental aspects of individuals’ human agency. This commentary article offers a critique of the Authors’ rationalist and individualist approach. The critique can be summarized through the following claim: We humans, as responsible beings, are more than our executive functions. This claim articulates through four main points of discussion: role of emotions in moral judgments and behavior; executive functions and normative criteria for legal insanity; impact of adverse situational factors on executive functions; Authors’ account of punishment and, especially, rehabilitation. (shrink)

This article examines disciplinary proceedings about sexual misconduct by lawyers. Sexual misconduct in a professional relationship is harmful and unacceptable and should result in immediate disciplinary action to protect victims, future victims and the public. However, there is no explicit offence of sexual misconduct in Australian disciplinary legislation regarding lawyers. Rather, sexual misconduct must be linked to the statutory offences. While the Australian Solicitors’ Conduct Rules guide the interpretation of the offences, there is only express reference to sexual harassment. We (...) examined tribunal and court legal disciplinary cases from 2000 to 2020 across all Australian jurisdictions in which sexual misconduct had occurred. Decision makers typically only considered sexual misconduct sufficiently egregious to meet the required standard of a disciplinary offence when accompanied by a criminal conviction. The conduct was often portrayed as a result of character flaws, rather than harmful to victims and the public. Thus, decision makers failed to locate the behaviour in the wider incidence of violence against women. The profession’s failure to acknowledge sexual misconduct reflects narrow professional norms which do not robustly protect victims. Explicit acknowledgement of sexual misconduct in disciplinary proceedings is essential. These amendments would signify the importance, frequency and impact of sexual misconduct. (shrink)

In this article, I look at the role of appeals to the emotions in criminal law defences. A position commonly held is that appeals to the emotions can excuse but cannot justify. However, we should be careful that this view does not rest on too simple and non-cognitive a view of the emotions. I contrast a simple picture, according to which action from emotion involves loss of rational control, with the more Aristotelian picture recently offered by RA Duff. I (...) then look at John Gardner’s theory of excuses, which seeks to avoid the non-cognitive account of action from emotion as loss of rational control, but nevertheless denies that reference to the emotions can even partially justify. I argue that what is at issue between Gardner and Duff is what Gardner calls the ‘no-difference’ thesis, namely that the reasons that count in favour of an emotion count also in favour of action done from that emotion. I conclude that Gardner has not yet explained why we should reject the no-difference thesis. (shrink)

This is a response to ten critiques of my 2018 book The Realm of Criminal Law, by Stephen Bero and Alex Sarch, Kim Ferzan, Stuart Green, Doug Husak, Nicola Lacey, Sandra Mayson, Victor Tadros, Patrick Tomlin, Alec Walen, and Gideon Yaffe. I take the opportunity to explain the main aims and themes of the book, to clarify some of its arguments, and to note some of the ways in which those arguments need expansion, development, or revision. Topics discussed include: (...) the usefulness and limits of ‘rational reconstruction’ as a method of normative theorising; public wrongs and the scope of the criminal law; the idea of civil order as central to a political theory of criminal law; wrongness constraints on criminalization; mala prohibita and regulatory offences; the ‘De Minimis’ principle; and criminal law ‘abolitionism’. (shrink)

The evidence suggests that employers discriminate against ex-offenders in the labour market. The problem is potentially serious as it involves a substantial proportion of the population, especially the male population. Since research has shown that most people with prior convictions stop offending by their late 20s or early 30s, the validity of selection based on criminal record remains questionable. This paper examines the need for legal protection of ex-offenders by limiting employers' access to, and use of, information on (...) class='Hi'>criminal background. The rights and interests of the various parties involved, employers, ex-offenders, and the general public, are discussed. Approaches to the legal protection of ex-offenders in Australia are reviewed and legislative changes proposed. (shrink)

One of the legal institutions of the punishment realization, i.e. the probation release, is investigated in the article from the legal comparative point of view. The article covers the legal relations, appearing as the result of application of the probation (setting and realization) towards the imprisoned convicts. The norms of the international and national juridical acts on the punishment realization, which regulate the probation, and the juridical doctrine of the punishment realization, brought forward by Lithuania and foreign countries, is (...) analyzed in the present article. The misunderstandings within the practices of imposition and execution of probation result in continuous discussions on the factual influence of the said institution to the development of social behaviour of the convicted person. The process of execution of probationary release must be directed towards the management of the risk of repeated criminal behaviour of the convicted person and neutralizing of criminal factors, however the existing structure of legal regulation does not provide a possibility to reach the said objectives. This shows one of the main deficiencies of criminal justice of Lithuania – a frequent and sustained application of imprisonment. (shrink)

Medical interventions are usually categorized as “invasive” when they involve piercing the skin or inserting an object into the body. However, the findings of Bluhm and collaborators (2023) (hencef...

Employers’ access to and use of criminal records as a selection mechanism in the labor market makes it far more difficult for ex-offenders to find jobs, especially regular, well-paid jobs, than those without criminal convictions. The paper asks whether there is anything morally problematic about this practice. The aims of the paper are twofold. First, arguments based on premises of wrongful discrimination against the current, commonest use of criminal records are critically discussed. It is argued that employers (...) do not necessarily engage in morally wrongful discrimination against job applicants when they use criminal records in recruitment screening. But it is also argued that ex-offenders who apply for jobs are subject to what can be called “structural and morally wrongful discrimination” when laws allow employers to request (or directly access) a job applicant’s full criminal record. Second, preliminary proposals on how criminal records can be used by employers in a way that avoids wrongful structural discrimination of ex-offenders will be presented and critically assessed. I suggest that it should be lawful for an employer to access an applicant’s criminal records only where there is a relevant and special match or link between the crime on the records and the job being applied for and the crime is serious. This proposal is defended against two objections, one based on concerns about crime prevention and the other based on the employer’s interest in knowing whom not to hire. (shrink)

The American criminal justice system creates incentives for false conviction. For example, many public crime labs are funded in part per conviction. We show that the number of false convictions per year in the American criminal justice system should be considered ?high.? We examine the incentives of police, forensic scientists, prosecutors, and public defenders in the U.S. Police, prosecutors, and forensic scientists often have an incentive to garner convictions with little incentive to convict the right person. (...) These incentives create what economists call a ?multitask problem? that seems to be resulting in a needlessly high rate of false convictions. Public defenders lack the resources and incentives needed to provide a vigorous defense for their clients. Corrective measures are discussed, along with a call for more research. (shrink)