Pinkerton Short-Circuits the Model Penal Code

I show that the Pinkerton rule in conspiracy law is doctrinally and morally flawed. Unlike past critics of the rule, I propose a statutory fix that preserves and reforms it rather than abolishing it entirely. As I will show, this accommodates authors like Neil Katyal who have defended the rule as an important crime fighting tool while also fixing most of the traditional problems with it identified by critics like Wayne LaFave. Pinkerton is a vicarious liability rule that makes conspirators criminally responsible for the foreseeable crimes of their coconspirators committed in furtherance of the conspiracy. It has two big problems: (1) Doctrinally, it breaks the logic of the many state criminal codes that are based on the Model Penal Code. (2) Ethically, it infringes the culpability constraint on the criminal law by imposing excessive punishments on defendants who did not even consciously suspect that their coconspirators would commit additional crimes that were not the object of the conspiracy. These problems are most acute in Texas, where Pinkerton can be combined with capital murder charges to produce automatic life without parole sentences. The Texas example is an extreme illustration of the problem of unintended consequences when state legislators tinker with the carefully drafted, interlocking provisions of a model code. The new statute I propose would put the penal code back in order and respect the culpability constraint. In the latter aspect, it is informed by leading work in philosophical ethics on blameworthiness and culpability

Guilt, Practical Identity, and Moral Staining

The guilt left by immoral actions is why moral duties are more pressing and serious than other reasons like prudential considerations. Religions talk of sin and karma; the secular still speak of spots or stains. I argue that a moral staining view of guilt is in fact the best model. It accounts for guilt's reflexive character and for anxious, scrupulous worries about whether one has transgressed. To understand moral staining, I borrow Christine Korsgaard's view that we construct our identities as agents through our actions. The contribution of immoral actions to self-constitution explains why moral obligations have priority and importance

Parsing the Reasonable Person: The Case of Self-Defense

Mistakes are a fact of life, and the criminal law is sadly no exception to the rule. Wrongful convictions are rightfully abhorred, and false acquittals can likewise inspire outrage. In these cases, we implicitly draw a distinction between a court’s finding and a defendant’s actual guilt or innocence. These are intuitive concepts, but as this paper aims to show, contemporary use of the reasonable person standard in the law of self-defense muddles them. Ordinarily, we can distinguish between a person's material guilt or innocence and his juridical guilt or innocence. Someone is materially guilty if his actions in fact matched the conduct proscribed by the penal law. Someone is juridically guilty if he is found guilty by a tribunal, i.e., convicted by a judge or jury. When a tribunal convicts a innocent person or acquits a guilty person, the accuracy of its verdicts can be criticized. There are three definitions of the reasonable person extant amongst courts and commentators: the reasonable person is either (1) a hypothetical ordinary, average person; (2) the embodiment of a community ideal; or (3) an embodiment of an objective ethical standard, i.e., ethical principles independent of community opinion. Nonetheless, after observing the circularity, vagueness, and lack of consistency in the definitions, wise courts and commentators have sometimes resorted to identifying the reasonable person with the judgment of the jury. This piece argues that failure to settle on a fixed definition of the "reasonable person" in the criminal law of self-defense effectively conflates material guilt and innocence and juridical guilt and innocence at the doctrinal level. When courts do not clearly and consistently choose between standards one, two, and three, or when they expressly treat the reasonable person as a form of words standing in for the judgment of the jury, they make it conceptually impossible for observers outside the court system to apply a fixed, definite standard to assess the actual guilt of a person apart from the judgments of tribunals. This paper's main purpose is to identify a conceptual knot rather than propose reforms. Still, it recommends two small changes meant to lift the confusion surrounding the reasonable person. First, it urges that courts expressly settle on one of the three definitions canvassed above. Second, it recommends that courts be mindful of the nature of the reasonable person standard and as such, be wary of treating conclusions about reasonableness as ordinary legal precedents, and wield the power of directed verdict aggressively to protect unpopular defendants from abuse by juries

A (Moral) Prisoner's Dilemma: Character Ethics and Plea Bargaining

Plea bargains are the stock-in-trade of the modern American prosecutor’s office. The basic scenario, wherein a defendant agrees to plea guilty in exchange for a reduced sentence, is familiar to viewers of police procedurals. In an equally famous variation on the theme, the prosecutor requests something more than an admission of guilt: leniency will only be forthcoming if the defendant is willing to cooperate with the prosecutor in securing the conviction of another suspect. In some of these cases, the defendant is a low-level criminal who has information on a high-level malefactor who is of more interest to the police. In others, the defendant and the person she is asked to testify against are of the same criminal rank, but evidentiary weaknesses induce the prosecutor to seek the aid of one suspect in order to convict the other. In this latter version, the classic tactic of film detectives is to offer the bargain to both defendants in the hopes that one will crack and agree to reveal what he knows about the other. The defendants could either be in custody for different crimes or be accomplices in the same offense. The last variation (involving accomplices) is the subject of this Article. I take issue with the prosecutorial tactics in these cases because of the risk they create of punishing the comparatively virtuous person more than the comparatively vicious one for the same acts. As I will argue, it is the less honest person who is more likely to accept the prosecutor’s deal, leading the more honest person, who resisted temptation, to suffer greater penalties. I contend that this scenario offends distributive justice, runs counter to the idea (accepted by some) that a proper goal of the state is the cultivation of good character in the citizenry, and is perverse insofar as a person will suffer more from the prosecutor's dilemma insofar as she is more or less a person of conscience. These negative considerations notwithstanding, I do not call for the abolition of accomplice plea bargaining but argue that the problems I raise should be considered when weighing its pros and cons. This article was published in the company of a strong critical response by Guha Krishnamurthi, whose contribution I greatly appreciate

Breaking Laws to Fix Broken Windows: A Revisionist Take on Order Maintenance Policing

Today, there is a family of celebrated police strategies that teach the importance of cracking down on petty crime and urban nuisance as the key to effective crime control. Under the “broken windows” appellation, this strategy is linked in the public mind with New York City and the alleged successes of its police department in reducing the rate of crime over the past two decades. This paper is critical of such order maintenance approaches to policing: I argue that infringements of civil liberty by such departments could be reduced if the departments looked at law more as a good to be served for its own sake and less as an instrument for the promotion of order. In other words, a shot of legalism is the correct medicine to reduce police misconduct that pierces the law’s protections of citizen freedom. This Article contributes to the critical literature on broken windows policing by reassessing the work of the famous Harvard scholar (James Q. Wilson) who fathered it. The Article takes Wilson’s work and turns it on its head, drawing very different prescriptive conclusions than he did himself

Out of Sight and Out of Mind: Criminal Laws Disguised Moral Culpability Requirement

Last spring, the Supreme Court of the United States made a little-remarked constitutional ruling in Kahler v. Kansas. Upon casual inspection, Kahler looks like a doctrinal dead-end. The petitioner asked the Supreme Court to recognize a due process right for mentally ill defendants to raise the M’Naghten right-and-wrong test of insanity, and the Court said, “No.” The petitioner’s failure notwithstanding, Kahler is not a barren vine. On the contrary, it is heavy-laden with new doctrinal insights for criminal law scholars. The case deserves a thorough look—not for what it can teach us about constitutional contentions that the Court has rendered unviable for the foreseeable future—but for what the creative arguments written by the petitioner’s attorneys can teach us about criminal law. Specifically, the briefing in Kahler unmasks a cached moral blameworthiness requirement in criminal law doctrine, on the same plane as the canonical requirements of voluntariness, action, and mens rea, but buried over the last two centuries in the rules governing the insanity defense

Determining upper limb kinematics and dynamics during everyday tasks

PhD ThesisIn planning orthopaedic procedures or designing joint replacements for the upper limb, detailed knowledge on the kinematic and dynamic behaviour of the shoulder, elbow and wrist joints during the performance of everyday tasks is essential. Previous studies have included kinematic analyses of everyday activities involved in feeding and personal hygiene though none have included both the kinematic and dynamic analyses of these tasks. This study has involved the development, validation and application of experimental methods and analysis techniques, enabling the measurement and modelling of upper limb kinematics and dynamics. A four camera video-based motion analysis system was used to track reflective spheres attached at specific locations on the upper limb and trunk. Novel methods for the definition of the embedded trunk frame and glenohumeral rotation centre were incorporated. Joint attitudes, cadences, angular velocities and angular accelerations were calculated prior to the determination of external forces and moments through the dynamic modelling of the upper limb. The procedures developed have been validated against known measurements and the results of previous studies. These have been applied to obtain kinematic and dynamic data from unimpaired subjects and subjects with shoulder impairment during performance of ten everyday tasks involved in feeding, personal hygiene and the use of everyday objects. Elbow and shoulder flexion were found to be the primary components for the successful completion of the selected tasks. Reaching to the opposite side of the neck was identified as being the most complex of the activities tested in terms of rotation at the shoulder and elbow. Characteristic patterns of motion at the joints of the upper limb were identified during anterior targeted lifting. Differences in performance between the unimpaired and impaired subjects were identified, particularly in the results for cadence and the individual joint velocities and accelerations.Engineering and Physical Sciences Research Council, DePuy Internationa

Deontic moral experience

This dissertation concerns deontic moral experience, especially guilt. I follow Gabriele Taylor’s view that when feeling guilty, one represents oneself as having violated one’s obligations and as being stained by that violation. On the basis of this view of guilt, I develop several claims in metaethics and normative ethics. I first debunk G.E.M. Anscombe’s genealogical attack on the intelligibility of deontic concepts in secular moral philosophy: that guilt, an emotion partly constituted by deontic concepts, is present outside the Abrahamic Occident is evidence that the deontic moral concepts are intelligible without a religious background. I then defend the intelligibility of deontic concept directly, showing how the British Intuitionists explained the content of a simple concept like ought without defining it. Second, I argue that given that the notion of wrongdoing is constitutive of guilt, normative ethicists must be careful about what they say about rightness and wrongness lest they sow chronic guilt in those who accept their theories. I claim that this is a special problem for consequentialists and that Peter Railton and Derek Parfit’s notion of blameless wrongdoing does not solve it. Rather, a distinction must be made between what is right all things considered (maximization in every action) and what is one’s duty (cultivating maximizing character traits, etc.). Third, I argue that guilt holds the key to explaining what T.M. Scanlon has called the priority and importance of moral obligations vis-à-vis nonmoral reasons. I defend Taylor’s moral staining view of guilt and use it to show how moral stains ground the priority and importance of moral obligations. To explain moral stains, I turn to Christine Korsgaard’s view that our actions are constitutive of our personal identities. Finally, in my last chapter, I elaborate on the connection between guilt, personal identity, and despair through a study of Søren Kierkegaard’s The Sickness Unto Death.Philosoph