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Don't Abandon the Model Penal Code Yet! Thinking Through Simons's Rethinking 不要放弃模范刑法典!通过西蒙斯的反思来思考
Buffalo Criminal Law Review Pub Date : 2002-04-01 DOI: 10.1525/NCLR.2002.6.1.185
Kimberly Kessler Ferzan
{"title":"Don't Abandon the Model Penal Code Yet! Thinking Through Simons's Rethinking","authors":"Kimberly Kessler Ferzan","doi":"10.1525/NCLR.2002.6.1.185","DOIUrl":"https://doi.org/10.1525/NCLR.2002.6.1.185","url":null,"abstract":"Criminal law theorists argue that culpability is a prerequisite for blameworthiness and responsibility. The definition above renders our endeavor circular. What does it mean to say someone is culpable? For some time, we thought we knew the answer to this question. Culpability was about choosing to commit a wrong, and the nature of this choice determined the degree of culpability. This is the view of the Model Penal Code. Yet, as this Symposium reveals, our consensus has devolved to dissensus. Criminal law theorists are now challenging the conventional framework’s ability to capture culpability adequately. These theorists argue that our current culpability theory pays insufficient attention to the motives, emotions, and desires of the actor and that these elements are a constitutive part of culpability.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"17 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":"125112751","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}
引用次数: 5
A Problem in Emotive Due Process: California's Three Strikes Law 情感正当程序中的一个问题:加州的三振出局法
Buffalo Criminal Law Review Pub Date : 2002-04-01 DOI: 10.1525/NCLR.2002.6.1.483
S. Pillsbury
{"title":"A Problem in Emotive Due Process: California's Three Strikes Law","authors":"S. Pillsbury","doi":"10.1525/NCLR.2002.6.1.483","DOIUrl":"https://doi.org/10.1525/NCLR.2002.6.1.483","url":null,"abstract":"California's Three Strikes law mandates a minimum sentence of 25 years to life for any felony conviction following two prior convictions for certain designated serious felonies. The argument presented here is that this scheme changes sentencing from an essentially adjudicative to a legislative decision and so violates a principle of penal justice which may be called emotive due process. In setting limits on sentencing, the legal system may rely on rule or role regulation (or both). Rule regulation involves rules which place absolute limits on punishment. Given the complexity of the evaluations involved, recidivist punishment schemes are particularly difficult to regulate by rule, suggesting the importance of role regulation. Role regulation works by guiding decisions through the assignment of particular roles to defense attorneys, prosecutors and judges. In sentencing such regulation depends on both prosecutors and defense attorneys having a realistic opportunity to appeal to the judge's sense of compassion for victims and defendants respectively. This requires that the judge have personal responsibility for the sentence rendered. The framers of the Three Strikes law deliberately sought to strip judges of that responsibility by making the imposition of harsh sentences mandatory. This deprives defendants of a realistic opportunity to appeal to judicial compassion and to receive a sentence tailored to the individual and the particular offense of conviction. The article discusses the extent to which California Supreme Court decisions have returned a measure of responsibility to sentencing judges, the extent to which other mandatory sentencing schemes may present similar problems and provides highly preliminary suggestions for translating the emotive due process concept into constitutional doctrine.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"122 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":"132073216","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}
引用次数: 11
Villainy and Felony: A Problem Concerning Criminalization 邪恶与重罪:一个关于定罪的问题
Buffalo Criminal Law Review Pub Date : 2002-04-01 DOI: 10.1525/NCLR.2002.6.1.451
L. Katz
{"title":"Villainy and Felony: A Problem Concerning Criminalization","authors":"L. Katz","doi":"10.1525/NCLR.2002.6.1.451","DOIUrl":"https://doi.org/10.1525/NCLR.2002.6.1.451","url":null,"abstract":"Etymology notwithstanding, not all seriously harmful villainies qualify as felonies. Or at least our moral intuition tells us that they should not. Traditional approaches to criminalization - like utilitarianism, the harm theory, legal moralism - have real trouble accounting for that, indeed have rarely even addressed it, and need to be revised somewhat to deal with it. But even if we know which harmful villainies we do not want to criminalize and why, we are still left with difficult and unexplored questions about whether we should let the non-criminalizable misconduct figure more indirectly in our application of criminal law doctrines, in determining for instance the scope of self-defense, or recklessness, or proximate causation, or necessity. Although this essay has dealt mostly with harmful misconduct, the analysis has implications as well for more familiarly hard-to-criminalize wrongdoing, like self-injurious behavior, and certain interactions between consenting adults.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"292 2 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":"114384179","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}
引用次数: 20
Homicide in Aretaic Terms 在东南亚地区杀人
Buffalo Criminal Law Review Pub Date : 2002-04-01 DOI: 10.1525/NCLR.2002.6.1.97
Kyron Huigens
{"title":"Homicide in Aretaic Terms","authors":"Kyron Huigens","doi":"10.1525/NCLR.2002.6.1.97","DOIUrl":"https://doi.org/10.1525/NCLR.2002.6.1.97","url":null,"abstract":"American law students are taught that there are two competing theories of punishment: the retributive theory and the deterrence theory. This is a mistake on the part of their teachers. Both retribution and deterrence are functions of punishment, not theories of punishment. Neither function justifies punishment or has any explanatory significance for issues such as the nature of excuse or proportionality—unless, that is, some moral theory attributes such a justificatory or explanatory role to it. What people usually mean when they refer to a retributive theory of punishment is a deontological theory of punishment, in which a moral duty to take retribution justifies punishment and similarly grounded moral duties are invoked to explain the features of a punishment system. What people usually mean when they refer to a","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"21 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":"125192437","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}
引用次数: 2
The Rhetoric of Motive and Intent 动机与意图修辞学
Buffalo Criminal Law Review Pub Date : 2002-04-01 DOI: 10.1525/NCLR.2002.6.1.1
G. Binder
{"title":"The Rhetoric of Motive and Intent","authors":"G. Binder","doi":"10.1525/NCLR.2002.6.1.1","DOIUrl":"https://doi.org/10.1525/NCLR.2002.6.1.1","url":null,"abstract":"This article offers a critical analysis of the traditional maxim that motive is irrelevant to criminal liability. It retraces the history of this principle to show how its meaning has changed and its validity has declined over time. Originally promoted by reformers, the irrelevance of motive maxim derived meaning from their efforts to codify criminal law. In this context, the irrelevance of motive stood for two related reforms: (1) legislators should condition criminal liability on expectations of harm rather than desires, and (2) courts should require proof of statutory mental elements. With the success of codification, however, the irrelevance of motive maxim has fragmented into two different propositions, one lacking authority, and one lacking content. If motives are understood as desires, the claim that motive is irrelevant to criminal liability is descriptively inaccurate, because modern codes define both offenses and defenses in terms of desires. If motives are taken to be mental states other than those defined as offense or defense elements, the motive is irrelevant maxim is true, but trivial. The article applies this critique to numerous contemporary controversies, including the propriety of hate crime enhancements.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"2 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":"123494195","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}
引用次数: 18
Hearts and Minds: Understanding the New Culpability 心灵与思想:理解新的罪责
Buffalo Criminal Law Review Pub Date : 2002-04-01 DOI: 10.1525/NCLR.2002.6.1.361
V. Nourse
{"title":"Hearts and Minds: Understanding the New Culpability","authors":"V. Nourse","doi":"10.1525/NCLR.2002.6.1.361","DOIUrl":"https://doi.org/10.1525/NCLR.2002.6.1.361","url":null,"abstract":"How does the modern criminal law understand mens rea? Conventionally, we moderns have for some time imagined mens rea as individual mind, as “psychical fact,” as subjectivity and personality. Very few, at least until recently, have doubted that we have made progress with this view of mens rea. One of the central tenets of late twentieth century criminal law scholarship is that the thin, descriptive ideas of culpability of the Model Penal Code are the essence of goodness and wisdom and clarity. Eschewed as hopelessly archaic and cruel are the mens rea terms of the common law, ideas dismissed precisely because they are full of emotion, attachments, and even passion, defiance, and contempt. The modern criminal law scholar regularly celebrates, instead, an idea of mens rea aspiring to fact and prediction, one in which states of mind","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"55 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":"117125293","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}
引用次数: 6
Excuses and Dispositions in Criminal Law 刑法中的辩解与处分
Buffalo Criminal Law Review Pub Date : 2002-04-01 DOI: 10.1525/NCLR.2002.6.1.317
C. Finkelstein
{"title":"Excuses and Dispositions in Criminal Law","authors":"C. Finkelstein","doi":"10.1525/NCLR.2002.6.1.317","DOIUrl":"https://doi.org/10.1525/NCLR.2002.6.1.317","url":null,"abstract":"What do criminal laws prohibit? A series of immoral or harmful acts? Or does the law also seek to prohibit performing those acts for certain reasons, acting on certain motives, or acting on the basis of certain character traits? In short, does the law look only at the quality of the act the defendant performs? Or does it look more broadly at whether the person who performed the prohibited act was righteous or ignoble, well-meaning or malign? The traditional view says that the criminal law focuses uniquely on acts. According to that view, character and motive are irrelevant to criminal liability. They are not relevant to the actus reus, since they merely serve to identify the prohibited conduct. And they are not relevant","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"41 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":"123217980","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}
引用次数: 14
Punishment, Liberalism, and Communitarianism 惩罚、自由主义和社群主义
Buffalo Criminal Law Review Pub Date : 2002-04-01 DOI: 10.1525/NCLR.2002.6.1.673
L. Zaibert
{"title":"Punishment, Liberalism, and Communitarianism","authors":"L. Zaibert","doi":"10.1525/NCLR.2002.6.1.673","DOIUrl":"https://doi.org/10.1525/NCLR.2002.6.1.673","url":null,"abstract":"In his most recent book, R.A. Duff, who is without a doubt one of the pre-eminent criminal law theorists today, presents an extraordinarily ambitious theory of punishment. This book fits well within Duff’s long-term project of laying bare the relationships between the criminal law and different specialized fields within philosophy. Duff’s philosophical treatment of the criminal law began with his Intention, Agency, and Criminal Liability, in which he thoroughly analyzed the relationship between the criminal law and contemporary philosophy of mind and action. Now Duff is squarely concerned with the connections between the criminal law and contemporary political philosophy. Duff claims that the comprehensive theory of punishment he advances “does justice to the central retributivist concern that punishment must focus on and be justified by its relationship to the crime for which it is imposed,” that it also “does justice to the consequentialist concern that punishment must be justified by some good that it aims to achieve,” and, furthermore, that his account does justice “to the abolitionist concern that we should aim","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"28 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":"130899932","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}
引用次数: 7
Dealing with the Nastiness: Mixing Feminism and Criminal Law in the Review of Cases of Battered Incarcerated Women - A Tenth-Year Reflection 处理肮脏:女性主义与刑法的混合——对受虐监禁妇女案件的回顾——一个十年的反思
Buffalo Criminal Law Review Pub Date : 2001-07-16 DOI: 10.1525/NCLR.2001.4.2.891
Linda L. Ammons
{"title":"Dealing with the Nastiness: Mixing Feminism and Criminal Law in the Review of Cases of Battered Incarcerated Women - A Tenth-Year Reflection","authors":"Linda L. Ammons","doi":"10.1525/NCLR.2001.4.2.891","DOIUrl":"https://doi.org/10.1525/NCLR.2001.4.2.891","url":null,"abstract":"In 1990, Ohio governor Richard Celeste granted clemency to twenty-eight incarcerated battered women. This article describes the author's involvement with the clemency decisions and gives an overview of the plight of battered women in society at that time. Supreme Court cases dealing with battered women are also discussed, as well as the future of feminism and criminal law in working to resolve the problem of domestic violence.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131432961","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}
引用次数: 6
Legal Liability and Criminal Omissions 法律责任和刑事疏忽
Buffalo Criminal Law Review Pub Date : 2001-04-01 DOI: 10.1525/NCLR.2001.5.1.69
Patricia Smith
{"title":"Legal Liability and Criminal Omissions","authors":"Patricia Smith","doi":"10.1525/NCLR.2001.5.1.69","DOIUrl":"https://doi.org/10.1525/NCLR.2001.5.1.69","url":null,"abstract":"In Harm To Others, Joel Feinberg argues that the failure to prevent harm (at least in some circumstances) falls within the moral limits of the criminal law. In some respects the claim must be taken as unexceptional. The criminal law recognizes omissions as offenses whenever there is a determinate duty to act. Illegal omissions are simply the failure to do what is required by law. If, by law, you are required to wear clothing in public, then you will be arrested for failing to do so. If, by law, you are required to protect or care for some other person (say, your child, parent, patient, client, or ward), then you are held to be liable (and responsible) for doing so. If the person for whom you are responsible should die, then you may be liable for homicide (or wrongful killing) whether negligent or intentional. Such laws are common and uncontroversial in the sense that virtually no commentators claim that they should not be part of the criminal law. But how exactly they fit in traditional criminal theory is another matter. The punishment of omission raises interesting problems for criminal law theorists in several respects. First, it is not clear that omission can pass the tests of actus reus and mens rea that are supposedly necessary for a prima facie case of criminal liability. This (along with other prob-","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130954527","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}
引用次数: 5
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