The Role of Moral Philosophers in the Competition Between Deontological and Empirical Desert

Desert appears to be in ascendence as a distributive principle for criminal liability and punishment but there is confusion as to whether it is a deontological or an empirical conception of desert that is or should be promoted. Each offers a distinct advantage over the other. Deontological desert can transcend community, situation, and time to give a conception of justice that can be relied upon to reveal errors in popular notions of justice. On the other hand, empirical desert can be more easily operationalized than can deontological desert because, contrary to common wisdom, there is a good deal of agreement as to its meaning. But empirical desert fails to provide the transcendent foundation that deontological desert can provide; empirical desert can tell only us what people believe is just not what actually is just. What role do moral philosophers play in the competition between deontological and empirical desert? One might assume them to be on the deontological side, facing the research social psychologists who are mapping shared intuitions of justice for empirical desert. But the situation is more complex. Moral philosophy has come to rely heavily upon intuitions of justice in its analytic methods, which both helps and hurts its usefulness. The moral philosophy literature today is the richest available source of intuitions of justice, which any serious research scientist ought to use as a starting point in mapping intuitions. But moral philosophers\u27 reliance on intuitions can undermine their ability to produce a deontological conception of desert that transcends the popular view and that can be relied upon to tell us when shared intuitions of justice are wrong. Available for download at http://ssrn.com/abstract=93369

Hierarchical Agglomerative Cluster Analysis Applied to WIBS 5-Dimensional Bioaerosol Data Sets

Peer reviewe

The Model Penal Code\u27s Conceptual Error on the Nature of Proximate Cause, and How to Fix It

The Model Penal Code reconceptualized proximate cause to see it as part of the offense culpability requirements rather than as, in the traditional view, a minimum requirement for the strength of the connection between the actor\u27s conduct and the prohibited result. That conceptual error, rare in the well-thought-out Model Code, invites misinterpretation and misapplication of the proximate cause provision, and can produce improper liability results. The failure is all the more unfortunate because the Model Code drafters did have an important improvement to offer in dealing with the challenging issue of proximate cause. Their jettison of fixed detailed rules in favor of a useful general standard – not too remote or accidental in its occurrence to have a [just] bearing on the actor\u27s liability or on the gravity of his offense – could have significantly simplified and improved proximate cause analysis, but their conceptual error created needless problems that helped lead most states to reject the Model Code provision

The Moral Vigilante and Her Cousins in the Shadows

By definition, vigilantes cannot be legally justified – if they satisfied a justification defense, for example, they would not be law-breakers – but they may well be morally justified, if their aim is to provide the order and justice that the criminal justice system has failed to provide in a breach of the social contract. Yet, even moral vigilantism is detrimental to society and ought to be avoided, ideally not by prosecuting moral vigilantism but by avoiding the creation of situations that would call for it. Unfortunately, the U.S. criminal justice system has adopted a wide range of criminal law rules and procedures that regularly and intentionally produce gross failures of justice. These doctrines of disillusionment may provoke vigilante acts, but not in numbers that make it a serious practical problem. More damaging is their tendency to provoke what might be called shadow vigilantism, in which ordinary people manipulate and subvert the criminal justice system to compel it to impose the justice that they see it as reluctant to impose. Unfortunately, shadow vigilantism can be widespread and impossible to effectively prosecute, leaving the system\u27s justness seriously distorted. This, in turn, can provoke a damaging anti-system response, as in the Stop Snitching movement, that further degrades the system\u27s reputation for doing justice, producing a downward spiral of lost credibility and deference. We would all be better off – citizens and offenders alike – if this dirty war had never started. What is needed is a re-examination of all of the doctrines of disillusionment, with an eye toward reformulating them to promote the interests they protect in ways that avoid gross failures of justice

Obama\u27s Get-Out-of-Jail-Free Decree

While agreeing that sentences for nonviolent drug offenses are too long, this Wall Street Journal op-ed piece argues that the large-scale clemency program planned by President Obama is misguided. It sets a dangerous precedent for using the clemency power beyond its traditional and intended purpose of providing a last-resort check on fairness and justice errors in individual cases, and instead uses the power to set sentencing policy. While many people will like the results of the current program, they will be less than happy when some future president uses it as precedent to promote a sentencing policy of which they disapprove

Are We Responsible for Who We Are? The Challenge for Criminal Law Theory in the Defenses of Coercive Indoctrination and Rotten Social Background

Should coercive indoctrination or rotten social background be a defense to crime? Traditional desert-based excuse theory roundly rejects these defenses because the offender lacks cognitive or control dysfunction at the time of the offense. The standard coercive crime-control strategies of optimizing general deterrence or incapacitation of the dangerous similarly reject such defenses. Recognition of such defenses would tend to undermine, perhaps quite seriously, deterrence and incapacitation goals. Finally, the normative crime-control principle of empirical desert might support such an excuse, but only if the community\u27s shared intuitions of justice support it. The law’s rejection of such defenses suggests that there might be little popular support for them. This is not necessarily the end of the story, however. Coercive indoctrination has in some cases, such as that of POW Richard Tenneson, prompted considerable public sympathy, confirming that lay persons do tend to exculpate some such offenders. Such intuitive support for a coercive indoctrination defense suggests that there may be practical crime-control value in having the criminal law recognize it. If the criminal law can build its reputation as a reliable moral authority with the community it governs, it can harness the potentially powerful forces of social and normative influence. There are good arguments for seeing rotten social background as a form of coercive indoctrination and, thus, for considering it too for a defense under such a newly-created doctrine. However, while the two defenses may be analogous, having a rotten social background by itself is not likely to meet the minimum prerequisites that logically would adhere to a coercive indoctrination defense, and certainly would have little intuitive support. On the other hand, specific cases of rotten social background might well qualify, if it is shown that that experience forced upon the person a set of beliefs and values compelling him toward the offence that he could not reasonably have been expected to resist