Judicial Regulation of Excessive Punishments through the Eighth Amendment

This article considers judicial regulation of excessive punishments through the Eighth Amendment

The Criminal Jury, Moral Judgments, and Political Representation

Was the sexual act consensual? Did the defendant have a reasonable belief that he was in imminent danger of death by an attacker? Did the police use excessive force? Did the defendant act in a heinous or cruel manner? Did the defendant act with depraved indifference to human life? These are some of the questions that criminal juries encounter. Determinations of such questions involve a combination of factual and moral questions, both questions about what happened and questions about the evaluative significance of what happened. This feature of the criminal jury—that the jury routinely decides normative questions—is frequently noted but is rarely examined. What does it exactly mean when we say that juries make normative determinations, and what is the nature of the inquiry that the jurors are engaging in when they consider moral questions in this particular setting? More specifically, this Article asks whether a juror, when making moral judgments, should follow his or her individual moral beliefs or identify and implement the community’s perspective. Many things said about the criminal jury appear to support the view that the jurors should attempt to replicate the community’s perspective. It is often said, for instance, the criminal jury serves as the community’s conscience, representative, or fiduciary, and such formulations suggest an obligation on the part of the jurors to reproduce the community’s perspective. This Article argues that despite the popularity of such accounts, they are either too indeterminate to imply an obligation on the part of the jurors to reproduce the community’s perspective, or in conflict with the fundamental obligation of jurors to adjudicate fairly and accurately. This Article, therefore, concludes that we are better off jettisoning the talk of the criminal jury as the community’s conscience, representative, or fiduciary, at least in this context, and should instead embrace the notion that jurors fulfill their roles in the criminal justice system most effectively when they vote as individuals, not as representatives, by applying legal standards to particular situations and bringing a diversity of viewpoints to the task

Punishing Disloyalty?: Treason, Espionage, and the Transgression of Political Boundaries

This Article examines the idea of betraying or being disloyal to one’s own country as a matter of criminal law. First, the Article defines crimes of disloyalty as involving failures to prioritize one’s own country’s interests through participating in efforts to directly undermine core institutional resources the country requires to protect itself or otherwise advance its interests by force. Second, this Article canvasses various potential arguments for the existence of a duty not to be disloyal to one’s own country and argues that they fail. Finally, this Article argues that we should interpret the wrong of disloyalty crimes as involving not betrayal or infidelity, but transgression of political boundaries. That is, the relevant wrong here is rooted in the ideas of separation of powers and assignments of roles between citizens and the state, and we should thus conceive crimes of disloyalty as crimes of usurpation and evaluate the moral rights and wrongs of such crimes accordingly

Reasonable Doubt and Moral Elements

The law is axiomatic. In order to convict a person of a crime, every element of the crime with which he is charged must be proven beyond a reasonable doubt. This Article argues that this fundamental proposition of American criminal law is wrong. Two types of elements are typically found in crime definitions: factual elements and moral elements. Proving factual elements involves answering questions about historical facts—that is, questions about what happened. By contrast, proving moral elements—such as “reckless,” “unjustifiable,” “without consent,” or “cruel”—involves answering questions not only about what happened but also about the evaluative significance of what happened. This Article argues that the beyond a reasonable doubt requirement should not apply to such moral elements for three reasons. First, the beyond a reasonable doubt requirement applied to normative elements compels overly underinclusive interpretations of crime definitions because the standard requires factfinders to acquit where there are reasonable moral disagreements. Second, by, in effect, thus limiting the scope of crime definitions, the requirement undermines the value of using normative terms in crime definitions as a method of guiding citizens to behave as responsible law-abiding citizens. Third, the requirement produces a situation where important normative decisions are delegated to ultimate factfinders, especially the jury, with excessively restrictive instructions as to when they are allowed to act on their moral beliefs. The Article concludes by discussing some implications of these arguments and exploring general features of criminal law that conspire to produce these problems with the beyond a reasonable doubt standard

Mala Prohibita and Proportionality

What is the proportionate punishment for conduct that is neither harmful nor wrongful? A likely response to that is that one ought not to be punished at all for such conduct. It is, however, common for the state to punish harmless conduct the wrongfulness of which is not always apparent. Take, for example, the requirement that those who give investment advice for compensation do so only after registering as an investment advisor. Advising a person on how to invest his or her funds and accepting a fee for the advice without registering with the government does not seem harmful or wrongful, so long as no fraud is involved, the relevant parties understand the relevant risks, and so on. But practicing investment advising without registering is a crime for which one may be convicted and punished. When one thinks of crimes, paradigmatic offenses are crimes like murder, rape, and robbery, but offenses like failure to register as an investment advisor are different. But in what way? One standard explanation is the distinction between two types of offenses, malum in se and malum prohibitum. Some offenses, like murder, are wrongs “in themselves” (“in se”) whereas other offenses, like investment advising without registering as an advisor, are wrongs because they have been prohibited (“prohibitum”). The question this Essay asks is how we should think about proportionality of punishment when punishing such mala prohibita offenses. This Essay presents a framework for such proportionality determinations and raises some challenges such a framework would need to confront