Individualizing Criminal Law’s Justice Judgments: Shortcomings in the Doctrines of Culpability, Mitigation, and Excuse

In judging an offender’s culpability, mitigation, or excuse, there seems to be general agreement that it is appropriate for the criminal law to take into account such things as the offender’s youthfulness or her significantly low IQ. There is even support for taking account of their distorted perceptions and reasoning induced by traumatic experiences, as in battered spouse syndrome. On the other hand, there seems to be equally strong opposition to taking account of things such as racism or homophobia that played a role in bringing about the offense. In between these two clear points, however, exists a large collection of individual offender characteristics and circumstances for which there is lack of clarity as to whether the criminal law should take them into account. Should our assessment of an offender’s criminal liability be adjusted for their cultural background? Their religious beliefs? Their past life experiences? The pedophilic tendencies they have always had but usually suppressed? The question of how much to individualize the criminal liability judgment is not peripheral or unusual but rather common in a wide range of formal criminal law doctrines including, for example, the culpability requirements of recklessness and negligence, the mitigation of provocation and its more modern form of extreme emotional disturbance, and the excuse defenses of mistake as to a justification, duress, and involuntary intoxication. indeed, it turns out that the problem of individualizing factors is present, if often obscured, in all criminal law doctrines of culpability, mitigation, and excuse. The Article reviews the appeal of criminal law adhering to a purely objective standard, where the problem of the individualizing factors is sought to be avoided altogether. But the resulting stream of injustices has forced most jurisdictions to adopt a partially individualized standard in some cases involving some doctrines. But this leaves the jurisdiction’s criminal law in an awkward and unstable state. Without a guiding principle for determining which individualizing factors are to be taken into account under what circumstances, the law is inevitably unprincipled and internally inconsistent. And without guidance, different decision-makers inevitably come to different conclusions in similar cases. The Article proposes a solution to the individualizing factors puzzle and a statutory codification that would provide guidance in the adjudication of the many cases in which the issue arises

The Criminogenic Effects of Damaging Criminal Law’s Moral Credibility

The criminal justice system’s reputation with the community can have a significant effect on the extent to which people are willing to comply with its demands and internalize its norms. In the context of criminal law, the empirical studies suggest that ordinary people expect the criminal justice system to do justice and avoid injustice, as they perceive it – what has been called “empirical desert” to distinguish it from the “deontological desert” of moral philosophers. The empirical studies and many real-world natural experiments suggest that a criminal justice system that regularly deviates from empirical desert loses moral credibility and thereby loses crime-control effectiveness. These crime-control benefits, together with an analysis of the sometimes-disqualifying weaknesses of alternative distributive principles such as general deterrence and incapacitation of the dangerous, suggest that maximizing the criminal law’s moral credibility is the best distributive principle available. Critics have offered a range of objections to this proposal, which are here considered and answered

Indoctrination and Social Influence as a Defense to Crime: Are We Responsible for Who We Are?

A patriotic POW is brainwashed by his North Korean captors into refusing repatriation and undertaking treasonous anti-American propaganda for the communist regime. Despite the general abhorrence of treason in time of war, the American public opposes criminal liability for such indoctrinated soldiers, yet existing criminal law provides no defense or mitigation because, at the time of the offense, the indoctrinated offender suffers no cognitive or control dysfunction, no mental or emotional impairment, and no external or internal compulsion. Rather, he was acting purely in the exercise of free of will, albeit based upon beliefs and values that he had not previously held.Retributivists committed to blameworthiness proportionality might support the community’s view of reduced blameworthiness, perhaps on some version of the argument that the offense was not committed by the offender’s authentic self. And a crime-control utilitarian might support revision of the criminal law to recognize a defense because such a serious conflict between community views and criminal law reduces the law’s moral credibility with the community and thereby undermines its ability to gain deference, compliance, assistance, and the internalization of the criminal law’s norms.On the other hand, to recognize a defense or significant mitigation for indoctrination-induced offenses would produce a tectonic shift in criminal law foundations. The indoctrination dynamic at work in the brainwashed POW case is not limited to such unique circumstances but rather is a common occurrence in the modern world, where governments, religions, political groups, and a host of other organizations, and indeed individuals, consciously manipulate others toward criminal conduct through a variety of indoctrinating mechanisms. Are people no longer to be held responsible for who they are? Is the criminal law now to investigate how an offender came to have any beliefs and values that contributed to the offense conduct?We argue that a close analysis of why some indoctrination cases are seen as blameless while others not suggests an articulable analytic framework based upon five key questions. We use a wide variety of real-world indoctrination cases to illustrate the operation of this framework and propose a specific statutory defense formulation that embodies it

Dealing with “Dilemmas of Difference” in the Workplace

Over the course of six months, the University of Pennsylvania Carey Law School’s class “Women, Law, and Leadership” interviewed 55 women between the ages of 25 and 85, all leaders in their respective fields. Nearly half of the women interviewed were women of color, and 10 of the women lived and worked in countries other than the U.S., spanning across Europe, Africa, and Southeast Asia. Threading together the common themes touched upon in these conversations, we gleaned a number of novel insights, distinguishing the leadership trajectories pursued by women who have risen to the heights of their professions. Through thousands of hours of conversation with some of the world’s most influential and powerful women, this study identifies the primary barriers and biases faced by women of diverse backgrounds in the workplace, as well as the strategies and philosophies they adopted in order to overcome these impediments. While there is much commonality among the women’s experiences, women of color often face more pervasive and subtle barriers than their white counterparts. Their leadership strategies on how to address these insidious challenges, however, are rarely recorded. In this article, we give voice to these experiences

Writing in Britain and Ireland, c. 400 to c. 800

No abstract available

Effects of Anacetrapib in Patients with Atherosclerotic Vascular Disease

BACKGROUND: Patients with atherosclerotic vascular disease remain at high risk for cardiovascular events despite effective statin-based treatment of low-density lipoprotein (LDL) cholesterol levels. The inhibition of cholesteryl ester transfer protein (CETP) by anacetrapib reduces LDL cholesterol levels and increases high-density lipoprotein (HDL) cholesterol levels. However, trials of other CETP inhibitors have shown neutral or adverse effects on cardiovascular outcomes. METHODS: We conducted a randomized, double-blind, placebo-controlled trial involving 30,449 adults with atherosclerotic vascular disease who were receiving intensive atorvastatin therapy and who had a mean LDL cholesterol level of 61 mg per deciliter (1.58 mmol per liter), a mean non-HDL cholesterol level of 92 mg per deciliter (2.38 mmol per liter), and a mean HDL cholesterol level of 40 mg per deciliter (1.03 mmol per liter). The patients were assigned to receive either 100 mg of anacetrapib once daily (15,225 patients) or matching placebo (15,224 patients). The primary outcome was the first major coronary event, a composite of coronary death, myocardial infarction, or coronary revascularization. RESULTS: During the median follow-up period of 4.1 years, the primary outcome occurred in significantly fewer patients in the anacetrapib group than in the placebo group (1640 of 15,225 patients [10.8%] vs. 1803 of 15,224 patients [11.8%]; rate ratio, 0.91; 95% confidence interval, 0.85 to 0.97; P=0.004). The relative difference in risk was similar across multiple prespecified subgroups. At the trial midpoint, the mean level of HDL cholesterol was higher by 43 mg per deciliter (1.12 mmol per liter) in the anacetrapib group than in the placebo group (a relative difference of 104%), and the mean level of non-HDL cholesterol was lower by 17 mg per deciliter (0.44 mmol per liter), a relative difference of -18%. There were no significant between-group differences in the risk of death, cancer, or other serious adverse events. CONCLUSIONS: Among patients with atherosclerotic vascular disease who were receiving intensive statin therapy, the use of anacetrapib resulted in a lower incidence of major coronary events than the use of placebo. (Funded by Merck and others; Current Controlled Trials number, ISRCTN48678192 ; ClinicalTrials.gov number, NCT01252953 ; and EudraCT number, 2010-023467-18 .)

In Defense of Moral Credibility

The criminal justice system’s reputation with the community can have a significant effect on the extent to which people are willing to comply with its demands and internalize its norms. In the context of criminal law, the empirical studies suggest that ordinary people expect the criminal justice system to do justice and avoid injustice, as they perceive it – what has been called “empirical desert” to distinguish it from the “deontological desert” of moral philosophers. The empirical studies and many real-world natural experiments suggest that a criminal justice system that regularly deviates from empirical desert loses moral credibility and thereby loses crime-control effectiveness. These crime-control benefits, together with an analysis of the sometimes-disqualifying weaknesses of alternative distributive principles such as general deterrence and incapacitation of the dangerous, suggest that maximizing the criminal law’s moral credibility is the best distributive principle available. Critics have offered a range of objections to this proposal, which are here considered and answered

Indoctrination and Social Influence as a Defense to Crime: Are We Responsible for Who We Are?

A patriotic POW is brainwashed by his North Korean captors into refusing repatriation and undertaking treasonous anti-American propaganda for the communist regime. Despite the general abhorrence of treason in time of war, the American public opposes criminal liability for such indoctrinated soldiers, yet existing criminal law provides no defense or mitigation because, at the time of the offense, the indoctrinated offender suffers no cognitive or control dysfunction, no mental or emotional impairment, and no external or internal compulsion. Rather, he was acting purely in the exercise of free of will, albeit based upon beliefs and values that he had not previously held.Retributivists committed to blameworthiness proportionality might support the community’s view of reduced blameworthiness, perhaps on some version of the argument that the offense was not committed by the offender’s authentic self. And a crime-control utilitarian might support revision of the criminal law to recognize a defense because such a serious conflict between community views and criminal law reduces the law’s moral credibility with the community and thereby undermines its ability to gain deference, compliance, assistance, and the internalization of the criminal law’s norms.On the other hand, to recognize a defense or significant mitigation for indoctrination-induced offenses would produce a tectonic shift in criminal law foundations. The indoctrination dynamic at work in the brainwashed POW case is not limited to such unique circumstances but rather is a common occurrence in the modern world, where governments, religions, political groups, and a host of other organizations, and indeed individuals, consciously manipulate others toward criminal conduct through a variety of indoctrinating mechanisms. Are people no longer to be held responsible for who they are? Is the criminal law now to investigate how an offender came to have any beliefs and values that contributed to the offense conduct?We argue that a close analysis of why some indoctrination cases are seen as blameless while others not suggests an articulable analytic framework based upon five key questions. We use a wide variety of real-world indoctrination cases to illustrate the operation of this framework and propose a specific statutory defense formulation that embodies it