Buffalo Criminal Law Review最新文献

{"title":"Bureaucracy, Private Prisons and the Future of Penal Reform","authors":"Sarah Armstrong","doi":"10.1525/NCLR.2003.7.1.275","DOIUrl":"https://doi.org/10.1525/NCLR.2003.7.1.275","url":null,"abstract":"This paper uses the private prisons debate to explore the legitimacy and accountability of prison generally. Attempts to determine the superiority (or inferiority) of private prisons cannot be resovled because of the normative and operational ambiguity of prison as a form of punishment. Instead this debate obscures the spread of a particular bureaucratic rationality in contemporary punishment that facilitates the expansion of prisons.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"214 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123691910","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Some Comments on Parts III and IV of the Model Penal Code from a German Perspective: Fundamentals of the Statutory Regulation of Correctional Practice in Germany","authors":"Bernd Schüünemann","doi":"10.1525/NCLR.2003.7.1.233","DOIUrl":"https://doi.org/10.1525/NCLR.2003.7.1.233","url":null,"abstract":"As is the case in the United States today, only the basics of the legal position of inmates were regulated by statute in Germany pre-1976. According to both case law and academic writing, a conviction, which was properly based on the criminal and criminal procedure codes, provided a sufficient basis for the limitation of the rights of inmates. This was predicated on the view that a conviction established a special relationship of subordination, the extent of which could be defined more precisely by the correctional authorities using their own discretion. In 1972, the German Constitutional Court handed down a now famous decision which held this state of affairs to be unconstitutional. Any limitations on the fundamental rights of inmates, which were consistently and comprehensively imposed, had to be regulated comprehensively, and in detail, by the legislature. Hence, the enacting of a Correctional Code was mandated by the Constitution. The legislature was forced to enact the Correctional Code in 1976. In more than 200 sections, the law regulates in detail every aspect of imprisonment and","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134416794","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Sentencing in Germany","authors":"Cornelius Nestler","doi":"10.1525/NCLR.2003.7.1.109","DOIUrl":"https://doi.org/10.1525/NCLR.2003.7.1.109","url":null,"abstract":"The purpose of this paper is to provide an understanding of the practical reality of sentencing in Germany. My brief discussion of sentencing in Germany will show that the German approach to sentencing is far less punitive than its U.S. counterpart although both countries belong to the so-called Western World and have rather similar political and economic structures. The question whether such an illustration of a much less punitive criminal justice system will aid the discussion of the sentencing provisions in a revised Model Penal Code will have to be answered by Americans familiar with U.S. law, with the American practice of sentencing, with the reality of the criminal justice system, and generally with criminal policy in the United States. Irrespective of the judgment of these legal experts and of the reader, a comparison between American and German sentencing is extremely difficult due to major differences among the criminal justice systems regarding practically all important aspects. A significant divergence of the two systems can already be seen in the case of substantive law: while the German approach is very systematic, includes a highly developed dogmatic interpretation through the courts which in every verdict have to offer a comprehensive written body of arguments explaining how the law applies to the facts, and involves numerous commentaries in the academic discussion of criminal law, in the American system the outcome of a case is plea bargained in more than 90% of all cases, and in the case of a jury verdict no legal arguments are provided to support the “yes or no”","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124983099","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Looking at the Model Penal Code Sentencing Provisions through Canadian Lenses","authors":"A. Doob, C. Webster","doi":"10.1525/NCLR.2003.7.1.139","DOIUrl":"https://doi.org/10.1525/NCLR.2003.7.1.139","url":null,"abstract":"Looking back at “American” sentencing over the past fifty years, those of us from outside the United States cannot help but be struck by three phenomena. First, there has been considerable volatility in the manner in which those who offend are punished. Indeed, it is difficult to imagine two sentencing systems that could be as different as an indeterminate model based on a rehabilitative paradigm and a determinate model rooted—it would appear—in an often unstated and unprincipled combination of denunciation, deterrence and harshness. In fact, one would be tempted to speak of revolutionary rather than evolutionary changes in American sentencing structures, particularly with regard to their ramifications on imprisonment rates. Second, the U.S. history of sentencing clearly reflects the characteristically American optimism about the ability of the state to achieve various difficult and diverse goals. Indeed, one notes a persistent belief in the possibility of legislating away the crime problem. Crime—like any social problem—is seen to be surmountable as long as there is sufficient will to do so. Certainly in examining American sentencing structures over the last half century, it would not be difficult to imagine President Kennedy announcing in the early 1960s that not only would the U.S. place a man on the moon by the end of the decade, but it would also solve the problem of crime. Third, the story of sentencing in the U.S. might also be told in terms of shifts in the relative power of the various groups involved in the sentencing process. Depending on the era which one examines over the course of the last fifty years, sentencing can be seen to have been controlled by such differing groups as the legislatures, trial judges,","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129925052","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Plea Against Retributivism","authors":"James Q. Whitman","doi":"10.1525/NCLR.2003.7.1.85","DOIUrl":"https://doi.org/10.1525/NCLR.2003.7.1.85","url":null,"abstract":"As we all know, the United States has embarked on a campaign of intensifying harshness in criminal punishment over the last three decades or so. Longer prison sentences and the reinstatement of the death penalty are the most important aspects of this campaign, but they are only part of it. These thirty years of harsh justice have made for an epochal shift in American law, opening a large divide between the United States and the other countries of the western world. American criminal punishment is now staggeringly harsher than punishment in such countries as Germany, France, or Japan: In criminal punishment, there is no longer any single “western” or westernized world. There is an American world, tough and unforgiving, and a Euro-Japanese world, mild in ways that have come to seem wholly impossible in the American climate. The last thirty years have been, indeed, the era of a great and unparalleled American crackdown. This is an event that deserves a place on the grand American timeline, alongside wars, depressions, and other defining collective experiences. To be sure, this late twentiethcentury campaign has not touched as many lives as the Great Depression or World War II or the war in Vietnam. Nevertheless, it has touched a great many lives indeed. In impoverished parts of black America in particular, the crackdown has struck a disturbing percentage of the male population, with an impact comparable in its epidemiology","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125048087","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Wechsler’s Century and Ours: Reforming Criminal Law In a Time of Shifting Rationalities of Government","authors":"J. Simon","doi":"10.1525/NCLR.2003.7.1.247","DOIUrl":"https://doi.org/10.1525/NCLR.2003.7.1.247","url":null,"abstract":"Wechsler’s Century and Ours: Reforming Criminal Law In a Time of Shifting Rationalities of Government Jonathan Simon • If we are to avoid dictatorship, we must be content to face problems that are of trivial importance to a dictator. 1 I. Introduction: Herbert Wechsler and the 20 th Century Herbert Wechsler who died in 2000 at over 90, led a life in the law that could well define the legal 20 th century in America. Students today might first encounter him as a constitutional scholar whose article “Toward Neutral Principles of Constitutional Law.” 2 was for decades discussed as the most principled intellectual criticism of the Supreme Court’s greatest 20 th century decision, Brown v. Board of Education. 3 Wechsler was one of the leading exponents of the legal process school that dominated academic law in the 1950s and 1960s. 4 Along with Herbert Hart, Wechsler was the original co-author of the most influential casebook in that quintessentially 20 th century field legal field “federal courts.” 5 Wechsler served as the reporter for the Model Penal Code, 6 which since the 1960s has served as the most influential source of modern criminal law reform thought for American scholars and state legislatures. 7 His casebook on criminal law, co-authored with Jerome Michael became the template for all contemporary criminal law casebooks and perhaps the modern casebook more generally. 8 A teacher at Columbia Law School for over half a century, Wechsler also helped define the role of the law professor in the post-World War II legal academy and influenced its relationship with other institutions including the social sciences and government. It is in these last two roles that I want to draw on Wechsler in the 1930s, when his approach to criminal law (and I would speculate his view of law more generally) entered into its public form, to reflect on the criminal law at moments of history when the very Professor of Jurisprudence and Social Policy, Boalt Hall, School of Law, UC Berkeley Caveat, at 633 73 Harv. L. Rev. 1 (1959) 347 U.S. 483 (1954) Harold Edgar, “Herbert Wechsler and the Criminal Law: A Brief Tribute,” 100 Colum. L. Rev. 1347, 1355 (2000). Avowed admirers of the legal process school in the current faculty of American law schools today are few. Like other dominant academic theories of the post-World War II period, it often seems tainted by having co-existed with national security hysteria in the political mix of that day, but there is one point at least, on which I for one, would want to wholly affirm the legal process school and that was its focus on law as a form of governance, and of legal expertise as a form of expertise about governance. Henry Hart and Herbert Wechsler, Federal Courts and the Federal System (Brooklyn, NY: Foundation Press 1953) American Law Institute, Model penal code and commentaries : official draft and revised comments, with text of Model penal code as adopted at the 1962 annual meeting of the American Law Institute at Washington,","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128485459","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Bias Crimes and Crimes Against Humanity: Culpability in Context","authors":"A. Danner","doi":"10.1525/NCLR.2002.6.1.389","DOIUrl":"https://doi.org/10.1525/NCLR.2002.6.1.389","url":null,"abstract":"Nine years after Wisconsin v. Mitchell, bias crime statutes have become a settled feature of the American legal landscape. In philosophical terms, however, these statutes remain only partially understood. The most widely accepted justification for the penalty enhancement associated with bias crime statutes derives from evidence that these crimes potentially engender more harm than do \"ordinary\" crimes. Scholars have less successfully articulated, however, the special blameworthiness of the bias crime perpetrator that justifies his enhanced punishment on the grounds of his personal culpability. The dominant account of the culpability associated with bias crimes derives from a conviction that the perpetrator's motives are particularly culpable. In this article, by contrast, I argue that the perpetrator's decision to select a particular victim - and not necessarily his motive - is the morally relevant event, and the basis upon which we may justly inflict increased punishment. Traditional explanations of the culpability associated with bias crimes suffer from a failure to consider fully the group aspects of these crimes. Crimes against humanity under international law provide a useful prism through which we can examine bias crimes. Through a comparison with crimes against humanity, I argue that the bias crime perpetrator's culpability can only be understood by reviewing the social context in which the perpetrator acts and his understanding of that context. In particular, it is important to consider the perpetrator's understanding of discrimination against the group of which his victim is a member. I maintain that a perpetrator should be found culpable for contributing to this discrimination - and hence guilty of a bias crime - if he intentionally selects a victim who is a member of a group subject to discrimination in the community, and if he is at least reckless as to that discrimination. Under these conditions, the bias crime perpetrator's actions reinforce and perpetuate social meanings that facilitate and solidify existing discrimination. His conscious decision to select a member of a vulnerable group as his victim makes the perpetrator more blameworthy: he knowingly or recklessly joins other wrongdoers in a demonstration of bias and discrimination that ultimately harms our society.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129690757","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Does Punishment for ““Culpable Indifference”” Simply Punish for ““Bad Character””? Examining the Requisite Connection Between Mens Rea and Actus Reus","authors":"K. Simons","doi":"10.1525/NCLR.2002.6.1.219","DOIUrl":"https://doi.org/10.1525/NCLR.2002.6.1.219","url":null,"abstract":"The conventional mental state or culpability categories recognized in the criminal law are purpose, knowledge, recklessness, and negligence. Should the law also recognize as an additional category some version of \"culpable indifference\"? Yes, according to a number of scholars; and some courts have also recognized this category, especially in the context of depraved heart murder. Culpable indifference can describe a modestly culpable mental state, sufficient for manslaughter liability (or, with respect to a circumstance element, roughly equivalent in seriousness to cognitive recklessness). It can also identify a more aggravated form of culpability, sufficient for murder (or, with respect to a circumstance element of an offense, roughly equivalent in seriousness to knowledge). But some critics raise an important objection: punishing those who display culpable indifference punishes for \"character\" rather than for \"acts,\" and is no more justifiable than punishing a person for a free-floating mental state (for example, punishing a pure bystander who takes perverse delight in another's commission of a crime). By contrast, punishment for acts accompanied by the more conventional mental states of purpose, knowledge, and recklessness supposedly is not subject to this objection. This paper explores when culpable indifference is indeed especially problematic in punishing merely for an attitude disconnected from conduct, and when it is not. The connection problem, we will see, is much more manageable on some formulations of culpable indifference. At the same time, this problem is hardly unique to culpable indifference; connection problems arise to a surprising extent with the conventional mental states of purpose, knowledge, and recklessness, as well. Two types of culpable indifference standards are distinguished. The first is a cognitive counterfactual criterion, and it asks whether the actor would have chosen to create a risk even if he had a higher degree of confidence (than he actually had) that it would result in harm. This approach must be carefully circumscribed in order to avoid the \"punishment merely for character\" objection. The second type of culpable indifference standard is an idealized counterfactual criterion, and it asks whether (and to what extent) the actor's conduct falls short of what an idealized, non-indifferent person would do. This approach does not pose the \"punishment for character\" objection; however, it raises serious problems of vagueness. To some extent, these problems can be overcome by articulating more specific, multiple criteria of culpable indifference (for example, the actor's intent to create a risk, or his participation in an immoral or illegal activity, or, as a mitigating factor, his efforts to avoid harm).","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116833284","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"American Law Institute, Model Penal Code: Sentencing, Plan for Revision","authors":"K. Reitz","doi":"10.1525/NCLR.2002.6.1.525","DOIUrl":"https://doi.org/10.1525/NCLR.2002.6.1.525","url":null,"abstract":"The following pages contain a faithful reproduction of the American Law Institute’s Model Penal Code: Sentencing, Plan for Revision, a document that stands at the beginning of the ALI’s project to revisit as much as onehalf of the original Model Penal Code. The Plan for Revision is not a traditional law review article, nor does it reflect the official positions of the ALI. Rather, it was my attempt (as reporter for the revision) to draw the outlines of a new sentencing structure for the Code, as a step preliminary to the first round of black-letter proposals. Within the context of the ALI drafting process, which includes multi-layered deliberations over a number of years, and is informed by comments and feedback from hundreds of participants and observers, the Plan for","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"22 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120858898","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Virtue, Vice, and Criminal Liability: Do We Want an Aristotelian Criminal Law?","authors":"R. Duff","doi":"10.1525/NCLR.2002.6.1.147","DOIUrl":"https://doi.org/10.1525/NCLR.2002.6.1.147","url":null,"abstract":"In criminal law theory, as in other kinds of theorizing, there is a powerful temptation (or, less question-beggingly, a powerful disposition) to search for a grand, unitary theory of criminal liability: some unitary account of what we are or should be liable for, of the conditions under which we are or should be held liable, of the basic structure and elements of liability, which applies across the whole range of criminal offenses. Such theorizing is typically an exercise in censorial rather than in purely analytical jurisprudence: although theorists of a Herculean disposition might claim that their account makes best sense of the values and aspirations that can be discerned within our existing legal systems and structures, their claim has in the end to be that this is how the law ought to be, not that this is how the law actually is in its contingent historical complexity. Such theories thus offer us, as any good normative theory should offer us, a standard against which we can assess and criticize existing legal doctrine and practice. The most ambitious theory would specify necessary and sufficient conditions of criminal liability: for instance that we are liable for and only for the choice to do or to risk doing what the law defines as the actus reus of a crime. Others, more modestly, claim only to specify a necessary condition of liability: for instance that criminal liability always requires, or must always be for, an “act” or a","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"144 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128984572","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}